The Queen (on the application of B) v London Borough of Redbridge

Hearing date: 6 February 2019

Approved Judgment

Jeremy JohnsonQC, sitting as a Deputy Judge of the High Court:

Introduction

The Defendant is providing accommodation to the Claimant, who would otherwise be homeless, pursuant to its duty under s193 Housing Act 1996. The Claimant says the accommodation is unsuitable because it is unaffordable. She claims that the Defendant has unlawfully failed to conduct a statutory review under s202(4) of the 1996 Act of the accommodation's suitability. The dispute arises in the context of a broader disagreement between the parties as to the accommodation's suitability. That dispute has led to:

(1) A statutory appeal to the County Court from the Defendant's decision that the accommodation is suitable;

(2) An application for permission to appeal to the High Court from the County Court's decision not to admit evidence that was not before the original decision maker and, following the dismissal of that application on the papers, a renewed oral application for permission to appeal;

(3) An application for permission to appeal to the Court of Appeal against the decision of the County Court to dismiss the Claimant's statutory appeal;

(4) These judicial review proceedings whereby the Claimant seeks an order requiring the Defendant to conduct a statutory review under s202(4) of the 1996 Act.

The Defendant says that it is not obliged to carry out a statutory review. The narrow issue in these proceedings is whether the Defendant is under a statutory obligation to conduct a review pursuant to s202(4) of the 1996 Act of its decision that the accommodation is suitable.

The facts

The Claimant was married in 2011. She was subjected to violence by her husband. She moved into a refuge, with her two sons. When her husband discovered the location of that refuge they moved into an alternative refuge.

On 23 August 2017 the Claimant applied to the Defendant local authority for housing, saying that the refuge was not suitable for her family and that she was unable to return to her matrimonial home because of the risk of violence from her husband. On 11 December 2017 the Claimant was offered a tenancy of a two bedroom flat, at a weekly rent of £185.39. The Defendant indicated in its letter of that date that it believed that the accommodation was suitable. The Claimant accepted the offer of a tenancy and moved in on 17 December 2017.

On 22 December 2017 the Claimant requested a review, pursuant to s202(1)(f) of the 1996 Act, of the decision of 11 December 2017 that the accommodation was suitable. She said that it was unaffordable (and hence unsuitable), in part because her benefits would be reduced by £25 per week as a result of the imposition of the “benefit cap”. The Claimant's solicitor set out details of her income and expenditure. In respect of the cost of electricity the solicitor said:

“There are also some expenses which our client has not yet started paying: she has not yet had the first electricity bill for her property. We do not know what type of heating is provided but it appears it must be electric heating of some sort as there is apparently no gas supply to the property, only electricity. Electric heating of course tends to be more expensive than gas heating. For now we have included a figure of £20 per week for electricity costs (including the heating and hot water costs) which may well prove to be a conservative estimate.”

The Defendant carried out a review under s202(4) of the 1996 Act and the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999. It concluded that the accommodation that had been provided to the Claimant was suitable as temporary accommodation under s193 of the 1996 Act. Its decision is set out in a detailed 82 paragraph letter dated 21 March 2018 (“the review decision”). In relation to affordability it said:

“14. Affordability: As part of my consideration in regards to whether the accommodation is suitable, I consider whether it is affordable for your client to live in this accommodation. This is not just whether your client can afford to pay the rent, but also whether this accommodation causes your client any additional expenses that are unreasonable for her to bear…”

The Defendant then made detailed findings as to the Claimant's living expenses. It accepted the Claimant's estimate of £20 per week in respect of the cost of electricity. It concluded that the Claimant had disposable income of £25.21 per week after payment of rent and necessary living expenses. It therefore found that the accommodation was affordable. However, it also recognised that the imposition of the benefit cap would reduce the Claimant's net income by £25.97:

“…when the Department for Work and Pensions decides to apply the benefit cap it will move to a point of being extremely borderline in terms of affordability…”

On 28 March 2018 the Claimant received her first electricity bill at the property. This showed an amount due of £387.87 in respect of the period 11 December 2017 to 22 March 2017. There is a dispute as to what this amounts to as a weekly cost. I find that (bearing in mind that the Claimant moved in to the property on 17 December 2017) the weekly cost is £28.58. The bill also provides an estimate of the Claimant's energy costs over a 12 month period of £1,306.87, or £25.13 per week. It points out that there are cheaper tariffs, and that the Claimant could save up to £141.60 (which would result in a weekly cost of £22.43).

On 9 April 2018 the Claimant's solicitor provided a copy of the electricity bill to the Defendant and pointed out the discrepancy between the predicted and actual cost of electricity. The Defendant was asked to carry out a further review of its decision as to the suitability of the accommodation, taking account of the “new material”. The Defendant did not respond to this request. Nor did it respond to a chaser sent the following day. Nor did it respond to the pre-action protocol letter of claim sent on 4 June 2018.

The Claimant pursued a statutory appeal to the County Court against the review decision, pursuant to s204 of the 1996 Act. The Claimant sought to rely on evidence that included reference to the actual electricity costs. The Judge refused permission to adduce that evidence because it was not before the decision maker. An application for permission to appeal to the High Court against the refusal to admit the evidence has been refused by an order of Warby J dated 17 January 2019 because the evidence “was plainly irrelevant to the review function which the Judge was performing.” The Claimant has made a renewed application for permission to appeal which, at the date of the hearing, had not yet been determined.

The Claimant's appeal to the County Court was dismissed. The Claimant has sought permission to appeal against that substantive decision to the Court of Appeal. That application for permission to appeal has also not yet been determined.

Separately, the Claimant issued these proceedings for judicial review, challenging the Defendant's failure to undertake a (second) review of the suitability of the accommodation. By its Summary Grounds the Defendant contended that it was an abuse of process to bring a judicial review at the same time as the County Court proceedings. It contended that the Claimant was not entitled to a second review and that the appropriate remedy was, instead, to pursue the County Court proceedings.

The Claimant was granted permission to claim judicial review and directions were made for the Defendant to file detailed grounds for contesting the claim and any written evidence on which it wished to rely. The Defendant failed to file Detailed Grounds within the time permitted but was granted relief from sanctions so that (with the exception of one paragraph) it was permitted to rely on Detailed Grounds that it had filed out of time.

In correspondence, the Defendant sought disclosure from the Claimant of her more recent electricity bills. The Claimant declined to give disclosure, maintaining that the more recent bills were not relevant to the claim for judicial review because they were not available at the time of the decision not to carry out a review.

Legal framework

Local authorities are under a duty to secure accommodation for an applicant who is homeless and eligible for assistance but who has not become homeless intentionally – see s193(2) Housing Act 1996:

“ 193. Duty to persons with priority need who are not homeless intentionally.

(1) This section applies where—

(a) the local housing authority—

(i) are satisfied that an applicant is homeless and eligible for assistance, and

(ii) are not satisfied that the applicant became homeless intentionally,

(b) the authority are also satisfied that the applicant has a priority need, and

(c) the authority's duty to the applicant under section 189B(2) has come to an end.

…

(2) Unless the authority refer the application to another local housing authority (see section 198), they shall secure that accommodation is available for occupation by the applicant.

(3) The authority are subject to the duty under this section until it ceases by virtue of any of the following provisions of this section.

…

(9) A person who ceases to be owed the duty under this section may make a fresh application to the authority for accommodation or assistance in obtaining...