The Queen (on the Application of Bushra Parveen) v London Borough of Redbridge
| Jurisdiction | England & Wales |
| Judge | Lord Justice Males,Lady Justice Nicola Davies,Lord Justice Underhill |
| Judgment Date | 12 March 2020 |
| Neutral Citation | [2020] EWCA Civ 194 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2019/1556 |
| Date | 12 March 2020 |
[2020] EWCA Civ 194
Lord Justice Underhill, VICE PRESIDENT OF THE COURT OF APPEAL, CIVIL DIVISION
Lady Justice Nicola Davies
and
Lord Justice Males
Case No: C1/2019/1556
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(Steven Kovats QC (Sitting as a Deputy High Court Judge))
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Lindsay Johnson (instructed by Hopkin Murray Beskine Ltd) for the Appellant
Ms Millie Polimac (instructed by Redbridge Legal Services) for the Respondent
Hearing date: 13 th February 2020
Approved Judgment
Introduction
This is an appeal against an order made in the Administrative Court that each party should bear its own costs following the appellant's withdrawal of a claim for judicial review.
The appellant, the claimant in the court below, contends that she was the successful party, having obtained substantially all of the relief which she sought, and that she should have been awarded her costs in accordance with the guidance set out in M v Croydon London Borough Council [2012] EWCA Civ 595, [2012] 1 WLR 2607. The judge, Mr Steven Kovats QC (sitting as a Deputy High Court Judge), ruled that it was impossible, without conducting a full trial of the claim, to determine whether there was any causal connection between the claim for judicial review and the offer of accommodation made to and accepted by the appellant shortly before the claim was due to be heard. The appellant submits that this represented a failure to apply the guidance in M v Croydon and that the judge failed to take account of factors which should have resulted in an award of costs in her favour.
The facts
The appellant and her five eldest daughters came to the United Kingdom from Pakistan in 2011. She was pregnant at the time with her sixth daughter. She was a victim of severe domestic violence, spoke no English and had limited mobility. She applied for leave to remain and was accommodated with her daughters by the Secretary of State in a series of temporary accommodation units. In October 2018 the family was granted leave to remain and was given a month's notice, expiring on 8 th November 2018, to leave the accommodation provided by the Secretary of State.
On 26 th October 2018 the appellant applied to the respondent council for assistance with housing for herself and her daughters. After an initial interview she was provided with a Personal Housing Plan (“PHP”) pursuant to section 189A of the Housing Act 1996. This recorded that the appellant found stairs difficult to manage and that the interviewing officer had asked her to provide a letter confirming her medical problems. It went into no further detail concerning the appellant's housing needs, save that the accommodation was to be for herself and her six daughters.
The council accepted an interim duty under section 188 of the 1996 Act to secure accommodation for the appellant pending a decision on what further duties were owed and, subsequently, accepted a duty under section 189B of the Act to help the appellant to secure that suitable accommodation became available for at least six months.
The appellant was referred to solicitors, who sent a pre-action letter dated 2 nd November 2018. The letter referred to the urgent need for accommodation on or before 8 th November and complained that the PHP provided on 26 th October had included no assessment of the appellant's housing needs. It said that the appellant needed self-contained accommodation and (but presumably alternatively) single-sex accommodation because of the extreme domestic violence the family had experienced. It needed also to be close to the schools attended by the children. A letter dated 28 th January 2016 from the appellant's GP was enclosed referring to mobility problems. The letter concluded by requiring the council to do three things: (1) to provide a copy of its file on the appellant; (2) to confirm that an urgent assessment of housing needs would be carried out; and (3) to provide self-contained accommodation in the borough on or before 8 th November 2018.
On 5 th November 2018 the council provided the appellant with accommodation in a mixed-sex family hostel for herself and her daughters. Although described as a single room, it was in fact two rooms with a corridor (but no doors) between them, with shared access to bathroom and toilet facilities, and a shared kitchen and living room. On the same day the appellant was interviewed and an accommodation needs assessment form was completed. It stated that a “B&B or Hostel is suitable, self-contained is obviously most ideal but might be lengthy given that they are a large family and unlikely to be available immediately” and noted that two of the children were at a critical stage of their education. It noted also that the appellant's medical issues referred to by her GP appeared to be relatively minor and not related to housing need apart from her limited mobility.
On 6 th November 2018 the council responded to the pre-action letter. The response did not address the points set out in some detail by the appellant's solicitors, but went straight to the three demands which they had made. As to these, the council (1) agreed to provide a copy of the appellant's housing file, (2) confirmed that an assessment of housing needs had now been carried out, and (3) advised that an offer of accommodation had been made (i.e. in the hostel) which the appellant had accepted.
This did not satisfy the appellant, who issued judicial review proceedings on 12 th November 2018. She contended that the council had breached both the duty owed to her under section 189A of the Housing Act 1996 to produce a lawful PHP (because, she said, the PHP initially provided had included no assessment of her housing needs) and the duty to provide suitable accommodation. She sought (1) a mandatory order requiring the council to secure suitable accommodation for herself and her daughters, (2) a declaration that the accommodation provided for her was not suitable for a family of seven, and (3) a declaration that the council had failed adequately or at all to comply with its duty to prepare a lawful PHP.
The appellant sought also an interim order requiring the family to be moved to suitable accommodation. At the hearing of that application on 20 th November 2018 the council argued that the accommodation provided was suitable in the short term, that is to say for a period of up to 56 days (although in the event the appellant and her daughters were to remain there for rather longer than this), bearing in mind the extreme shortage of accommodation for large families in the borough and the appellant's unwillingness to move away from the area which would mean the children having to change schools. It agreed to make a prompt decision on whether to accept that it owed the appellant a full housing duty under section 193 of the 1996 Act. It agreed also to carry out some work to improve the rooms which had been provided. On that basis the application for interim relief was withdrawn. Some work was carried out to deal with the most obvious problems with the hostel rooms: blinds were provided, gaps in doors were sealed, additional furniture was provided and furniture was placed in the bathrooms. But the fundamental problems of overcrowding and shared use of bathroom and toilet facilities remained.
The council did accept that it owed the full housing duty, but on 22 nd November 2018 it determined pursuant to section 184 of the 1996 Act that the accommodation provided was suitable as temporary accommodation pending the securing of other accommodation. The appellant requested a review of this determination under section 202 of the Act, but the council confirmed its decision on 19 th December 2018. The reviewing officer explained that the council's policy, in view of high demand and scarce supply, was to move families on from the hostel accommodation on a “first in, first out” basis, and that there were six households already in the queue to be considered before the appellant.
The council contended that the right to request a review and, if dissatisfied, to appeal to the County Court, was an alternative remedy rendering judicial review inappropriate, but despite this permission was granted for the judicial review claim to proceed on 20 th December 2018.
On 10 th January 2019 the appellant exercised her right to appeal to the County Court under section 204 of the Act against the council's decision on suitability.
The hearing of the substantive claim for judicial review was listed for 5 th March 2019. The appellant continued to argue that the accommodation provided was unsuitable and that self-contained accommodation was required. The council accepted that the accommodation provided was not ideal, but contended that in the context of a severe housing shortage and benefit restrictions, its determination that the accommodation provided in a family hostel was suitable as temporary accommodation was not irrational. The council contended also that the County Court was the appropriate forum in which to argue about the suitability of the accommodation, rather than the claim for judicial review.
In the meanwhile the appellant was provided with updated PHPs from time to time. An update provided on 29 th January 2019 referred to the history of abuse which the appellant had suffered and recorded that she had been asked to provide a “further supporting letter regarding ongoing problems which causes difficulties with sharing facilities”. As already noted, the appellant had already provided a report from her GP dated 28 th January 2016 but this did not state in terms that she required either...
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