Robinson v Hammersmith and Fulham London Borough Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Waller,Lord Justice Jacob |
| Judgment Date | 28 July 2006 |
| Neutral Citation | [2006] EWCA Civ 1122 |
| Docket Number | Case No: B2/2005/2262 |
| Court | Court of Appeal (Civil Division) |
| Date | 28 July 2006 |
[2006] EWCA Civ 1122
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Wandsworth County Court
His Honour Judge Medawar QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Waller
Lord Justice Jonathan Parker and
Lord Justice Jacob
Case No: B2/2005/2262
5WL02488
Andrew Arden QC and Jim Shepherd (instructed by Hammersmith and Fulham Law Centre) for the Appellant
Clare Roberts (instructed by Legal Services Division, LB Hammersmith) for the Respondent
This is an appeal from a decision of HH Judge Medawar dated 13 th September 2005. It raises questions relating to the duty of local authorities under the Housing Act 1996 to children under 18 who are made homeless close to their 18 th birthdays. Children under 18 who are unintentionally homeless have a priority need, and whereas section 193 of the 1996 Act preserved that accommodation duty for two years, an amendment in 2002 has extended that duty to an indefinite duration subject to circumstances, not including reaching the age of 18, not (at least at present) applying in this case. Are authorities entitled to postpone the making of a decision for some period, calculated by reference to the average period for investigating whether a person is homeless, where the effect will be to postpone the taking of a decision until a child is 18? Are they entitled to postpone the taking of a decision for say 24 hours so that a person becomes 18 before the decision is taken? Are local authorities entitled to postpone the making of a decision as to whether they have a duty to provide accommodation to a 17 year old child while they seek to reconcile the child with the family by mediation, if the effect will be that the child will become 18, and if the mediation fails the child will no longer be in priority need? If a decision is taken when a person is under 18 not to a provide accommodation, and if a review is sought, does the review take place by reference to the facts as at the date of the review i.e. by reference to the fact that the person is now 18 and not in priority need? These are the sort of questions that arise.
The facts
On 17 th February 2005 the appellant's mother asked her to leave the family home. The appellant was 17 years old and due to be 18 on 11 th March 2005. She approached the respondent council and spoke to the housing officer, Catherine Cleary, asserting she was homeless. If she was homeless unintentionally, while she was under 18, she automatically qualified for accommodation as a person in priority need in consequence of the Homeless (Priority need for accommodation) (England) Order 2002. Catherine Cleary, the respondent's Housing Officer, at first stated that because it would take 28 days for the respondents to investigate and because by the end of that period the appellant would be over 18, there was no point in her continuing with her application. The respondents did not at this stage provide even interim accommodation.
After advice from a law centre the appellant approached the respondents again on 18 th February where she again saw Catherine Cleary. Catherine Cleary phoned the appellant's mother who confirmed that the appellant could not return home, but stated at that stage that she was willing to engage in mediation.
A Referral to Mediation Service Form undated stated "Applicant will be 18 years of age on 11/3/05. Temporary accommodation booked until then. Applicant has no priority need."
5. On 4 th March 2005 (it seems for the first time) the applicant saw a mediation officer and agreed to mediation. The mediation officer said she would be contacting the appellant's mother. On 9 th March 2005 the mother refused mediation.
On 10 th March 2005 the respondents decided that the appellant had no priority need and informed her of that decision by telephone. They also decided not to send the notice required by section 184 of the Housing Act 1996 with the reasons for their decision until the following day. That notice was provided on the following day. Accommodation was provided for a further 14 days.
On 1 st April 2005 the appellant's solicitor sought a review under section 202 of the 1996 Act. On 10 th May 2005 the respondents confirmed that the appellant was not in priority need stating:-
"I have reviewed the information on file and note that your client's vulnerability was considered on 18 February 2005, when Terry Schiff (Options Advisor) and Paul Clarke (Housing Advice Manager) considered the application. On this occasion it was noted that your client's birthday was three weeks away and Paul Clarke was prepared to place her in accommodation up to and including her birthday, he subsequently agreed a further two-week placement on 10 March and her accommodation was finally cancelled on 24 March 2005. It was at this point that the review of the decision was requested and accommodation pending the outcome of the review was agreed.
The initial three-week placement was agreed in order to engage the council's in-house mediation service. The service has been charged by the council with trying to effect reconciliation between family members, it is especially aimed at seeking to reconcile young adults with their parents, precisely the situation in this instance.
The attempt at mediation was unsuccessful and the council was unable to effect a reconciliation between your client and her mother. . . . As in the majority of cases of 16/17 year old homelessness the preferred resolution is reconciliation, it is council policy not to proceed with such cases until mediation has been attempted."
The appeal against the review decision was heard by His Honour Judge Medawar on 7 th September 2005. He found as follows:-
(i) That the decision on the appellant's application was, it would seem, made on March 10 2005
(ii) That the delay in reaching the decision between February 18, 2005, and March 10, 2005, was attributable to the respondents' efforts to resolve the appellant's homelessness by mediation.
(iii) That the delay in sending the written notification of the decision until March 11, 2005, was de minimis.
(iv) That in any event, the review decision-maker was correct to find that the appellant was not in priority need, because – following Mohamed v Hammersmith & Fulham LBC [2001] UKHL 57; [2002] 1SC 547– the appellant had not been in priority need as at the date of the review.
Arden LJ initially refused permission to appeal on paper but ultimately granted permission to appeal following an oral hearing.
It is not suggested that the appellant ever was intentionally homeless. Mr Andrew Arden QC's submissions in short were (1) the respondents took a decision that the appellant was homeless unintentionally before she was 18 and thus the original decision that she was not in priority need was unlawful; he relies on decisions taken either on 18 th February or at latest 10 th March 2005 (2) alternatively he submitted that the respondents acted unlawfully by deliberately postponing the taking of a decision until after the appellant's 18 th birthday; (3) he submits that the decision on review should have reflected that the respondents had acted unlawfully and had denied the appellant a right that she should otherwise have had; and (4) he submitted HH Judge Medawar's decision should also have reflected the unlawful conduct of the respondents.
Miss Clare Roberts' submission for the respondents was (1) the respondents' decision was made when they sent their 11 th March 2002 Section 184 notice by which time the appellant was 18 and not in priority need; (2) in considering whether a person aged 16 or 17 is in priority need, the respondents are entitled and indeed required by the Guidance to seek to reconcile the family (by mediation if necessary) ; it was mediation not a postponing of the taking of a decision which led to the respondents taking the final decision on 11 th March when the appellant was 18 years of age; (3) even if mediation had failed by 10 th March it was not unlawful to postpone for a very short time i.e. until 11 th March, the taking of a decision by which time the appellant would be 18 and not in priority need; (4) at the date of the review the appellant was not in priority need.
The law
A person is homeless if he or she has no accommodation that he or she is entitled to occupy; see section 175. If a person applies to a local authority for housing assistance, and it appears to the authority that he or she may be homeless, the authorities are bound to make enquiries. Section 184 (1) and (3) provide as follows:-
"(1) If the local housing authority have reason to believe that an applicant may be homeless or threatened with homelessness, they shall make such inquiries as are necessary to satisfy themselves –
(a) whether he is eligible for assistance, and
(b) if so, whether any duty, and if so what duty, is owed to him under the following provisions of this Part.
(3) On completing their inquiries the authority shall notify the applicant of their decision and, so far as any issue is decided against his interests, inform him of the reasons for their decision."
If the authority has reason to believe that an applicant may be homeless and in priority need, they must provide temporary accommodation. Section 188(1) provides:-
"If the local housing authority have reason to believe that an applicant may be homeless, eligible for assistance and have a priority need, they shall secure that accommodation is available for his occupation pending a decision as to the duty (if any) owed to him under...
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