R v Kensington and Chelsea Royal London Borough Council, ex parte Hammell

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD JUSTICE FOX,LORD JUSTICE PARKER,LORD JUSTICE CROOM-JOHNSON
Judgment Date04 August 1988
Judgment citation (vLex)[1988] EWCA Civ J0804-2
Docket Number88/0708

[1988] EWCA Civ J0804-2

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Mr. Justice Nolan)

Royal Courts of Justice

Before:

Lord Justice Fox

Lord Justice Parker

and

Lord Justice Croom-Johnson

88/0708

Between:
Agnes Cross Hammell
Appellant (Applicant)
and
The Royal Borough of Kensington & Chelsea
Respondent (Defendant)

MR. ROBIN ALLEN and MR. MARTIN WESTGATE (instructed by Messrs Brocklesby & Co.) appeared on behalf of the Appellant/Applicant.

MR. TIMOTHY D. STRAKER (instructed by the Solicitor to The Royal Borough of Kensington and Chelsea) appeared on behalf of the Respondent/Defendant.

LORD JUSTICE FOX
1

I will ask Lord Justice Parker to give the first judgment.

LORD JUSTICE PARKER
2

On 12th April this year the appellant, Mrs. Hammell, a divorced woman with custody of the three children of her former marriage, two boys aged 12 and 9 and a girl aged 7, applied in person to the respondent Council for accommodation. She was seen by a Mr. Ashton. Put in its shortest form the basis of her application was that although she had a tenancy of a council house or flat in Alloa, Scotland, provided by the Clackmannan District Council, she had, in January of this year, been forced to flee therefrom due to violence and harassment on the part of her ex-husband and others instigated by him. He was living with a woman who had at least one child, only a matter of some 50 yards away. Since coming to London in January she has been staying with her sister in a one bedroomed flat in the Council's area, but her sister had, not surprisingly had enough of sharing a small flat with her and her three children and required her to leave.

3

Not unnaturally the account which she gave to Mr. Ashton resulted in him having reason to believe that she might (1) be homeless or threatened with homelessness, and (2) have a priority need within the meaning of sections 58 and 59 of the Housing Act 1985 as amended by the Housing and Planning Act 1986.

4

The consequences of Mr. Ashton forming the view that he had reason to believe as aforesaid are set out in sections 62 and 63 of the 1985 Act. Section 62 provides as follows:

"(1) If a person (an 'applicant') applies to a local housing authority for accommodation, or for assistance in obtaining accommodation, and the authority have reason to believe that he may be homeless or threatened with homelessness, they shall make such inquiries as are necessary to satisfy themselves as to whether he is homeless or threatened with homelessness.

(2) If they are so satisfied, they shall make any further inquiries necessary to satisfy themselves as to—

  • (a) whether he has a priority need, and

  • (b) whether he became homeless or threatened with homelessness intentionally.

and if they think fit they may also make inquiries as to whether he has a local connection with the district of another local housing authority in England, Wales or Scotland."

5

Section 63:

"(1) If the local housing authority have reason to believe that an applicant may be homeless and have a priority need, they shall secure that accommodation is made available for his occupation pending a decision as a result of their inquiries under section 62.

(2) This duty arises irrespective of any local connection which the applicant may have with the district of another local housing authority."

6

The Council had therefore, first, a duty under section 62 to make such enquiries as were necessary to enable them to satisfy themselves as to whether Mrs. Hammell was homeless or threatened with homelessness and, secondly, a duty under section 63 to secure that accommodation was made available to her and her children pending a decision as a result of the necessary inquiries under section 62.

7

The Council did make some inquiries on the following day, to which I shall revert hereafter, but later on the following day they issued a written notice under or purporting to be under section 64 of the Act. That section, so far as immediately material, provides as follows:

"64(1) On completing their inquiries under section 62, the local housing authority shall notify the applicant of their decision on the question whether he is homeless or threatened with homelessness.

(2) If they notify him that their decision is that he is homeless or threatened with homelessness, they shall at the same time notify him of their decision on the question whether he has a priority need.

(3)…..

(4) If the local housing authority notify the applicant—

  • (a) that they are not satisfied that he is homeless or threatened with homelessness or

  • (b)…

  • (c)…

  • (d)…

they shall at the same time notify him of their reasons."

8

The notice which was given appears at page 76 of the bundle prepared for the hearing in this court and is in these terms:

"Dear Mrs. Hammell

Housing Act 1985

Under the terms of Section 64 of the above Act, I write to inform you of my decision concerning your application for assistance.

This Authority is not satisfied that you are homeless or threatened with homelessness.

This Authority is satisfied that you have a priority need.

This decision has been reached for the following reason:

You have accommodation at 24 Menteith Court, Alloa which you are entitled to occupy. Travel warrants are available for you and your children to enable you to return.

Yours sincerely,"

9

It is signed by the Director of Housing & Property Services of the respondent Council.

10

The issue of that notice was followed by some fruitless discussion between Mrs. Hammell's solicitor and the council in an endeavour to secure a change of mind on their part. On the 18th April a written application for leave to move for judicial review was lodged. It sought, inter alia, judicial review and quashing of the decision communicated by the notice which I have read and also interim relief by way of injunction pending the hearing, the injunction sought being a mandatory injunction that they should accommodate her pending such hearing.

11

The Council were notified of the intention to make the application for an injunction and the written application for leave requested an oral hearing. On 20th April the oral hearing took place before Nolan J. who ex parte, the Council not having elected to appear due to some muddle in the offices, granted interim relief and leave to move. The order so far as interim relief was concerned was in the following terms:

"And it is further ordered that the Respondents by themselves their agents or servants or otherwise howsoever do secure that accommodation is made available for the occupation by the Applicant and her family by the 25th day of April 1988 until the hearing of their application for Judicial Review or further order and that the Respondents do have liberty to apply to vary or set aside this interlocutory injunction on 24 hours notice to the applicant or her representatives."

12

The Council, as one might have expected, duly complied with the order of the court, but also applied to set aside the interim injunction. The application in that behalf was heard also by Nolan J. on 17th May. He then set aside the order. In substance he held, contrary to the Council's submission, that there was jurisdiction to grant relief by way of interim mandatory injunction, but that the case did not in his view fall into what he described as the highly exceptional category in which such relief could be granted. Against the discharge of the injunction, Mrs. Hammell nowappeals.

13

I deal first with the question of jurisdiction. That point arose in De Falco v. Crawley Council [1980] 1 Q.B. 460. The headnote accurately summarises the effect of the judgments and I begin by reading part of it:

"Per curiam. Though the Act provides no remedy for a person adversely affected by a breach of statutory duty, it has already been decided that such person could bring an ordinary action for damages in the county court, and there is no reason why in such an action, whether in the county court or the High Court, he could not also claim declarations that a decision was invalid, and an injunction; that, alternatively, he could bring proceedings for judicial review under R.S.C., Order 53, and in either case could apply for interim relief by way of mandatory injunction ordering the provision of accommodation; but such relief should only be granted where a strong prima facie case of breach of duty is made out at the interlocutory stage."

14

I refer also to passages in the judgments in that case. First, Lord Denning at page 478 under the heading "The granting of an interlocutory injunction":

"This is not the same sort of case as American Cyanamid Co. v. Ethicon Ltd. [1975] A.C. 396, because the plaintiffs here cannot give any worthwhile undertaking in damages. No injunction should be granted against the council unless the plaintiffs make out a strong prima facie case that the council's finding of 'intentional homelessness' was invalid. I would go further. It should not be granted unless it is a case in which, on an application for judicial review, certiorari would be granted to quash their decision: and mandamus issued to command them to consider the case afresh."

15

At page 482 Bridge L.J. said this:

"I have no doubt therefore that the court may properly exercise its discretion to grant a mandatory injunction on an interlocutory application in an appropriate case. In considering what principles should govern the exercise of this discretion, I do not think much assistance is to be derived from authority. In particular I am satisfied that the principles expounded by Lord Diplock in American Cyanamid Co. v. Ethicon…..governing the grant of prohibitory injunctions on...

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