The Queen -on the application of- christopher Mitchell v London Borough of Islington
| Jurisdiction | England & Wales |
| Judge | James Strachan |
| Judgment Date | 10 June 2020 |
| Neutral Citation | [2020] EWHC 1478 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 10 June 2020 |
| Docket Number | Case No: CO/4506/2019 |
[2020] EWHC 1478 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr James Strachan QC
(Sitting as a Deputy Judge of the High Court)
Case No: CO/4506/2019
Toby Vanhegan (instructed by Hodge Jones & Allen Solicitors) for the Claimant
Catherine Rowlands (instructed by London Borough of Islington) for the Defendant
Hearing date: 24 th March 2020
Approved Judgment
James Strachan QC (sitting as a Deputy Judge of the High Court):
Introduction
By this claim for judicial review the Claimant challenges a decision by the London Borough of Islington (“the Council”) in a letter dated 11 November 2019 to refuse to provide him with temporary accommodation him under section 188(1) of the Housing Act 1996 (“the 1996 Act”).
In his Claim Form the Claimant sought a final order that the Defendant “do forthwith secure that suitable accommodation is available for occupation by the claimant until they lawfully discharge their duty under section 189B of the 1996 Act.” He also sought urgent consideration of his application for permission to claim judicial review and interim relief in the form of the provision of suitable accommodation.
Permission to proceed was granted by Ms Margaret Obi (sitting as a Deputy Judge of the High Court) by Order dated 4 December 2019. The application for interim relief was refused in light of the balance of convenience on the basis that the Claimant was living with his brother at the time. The Deputy Judge expedited the hearing to be heard as soon as possible after 17 February 2020.
The hearing was listed to be heard on 24 March 2020. In light of the practical restrictions that arose from the Covid-19 pandemic, the Court proposed that the hearing should proceed by way of telephone conference on that date. The parties initially sought to have the hearing adjourned by consent. On reading the papers, my initial view was that the claim could he heard effectively by telephone. I communicated this to the parties through the Administrative Court office. The parties decided they were content to proceed in this way. I conducted the hearing by telephone on 24 March 2020. I record my thanks to the parties and their representatives for enabling the hearing to proceed.
Mr Vanhegan, Counsel for the Claimant, and Ms Rowlands, Counsel for the Defendant, informed me during the hearing that the Claimant was residing with his brother and had been offered assistance with obtaining private rented accommodation. Both therefore agreed that the original urgency for determination of the claim had dissipated.
The remaining issue is how and when a local authority's interim duty under section 188 of the 1996 Act comes to an end, in light of amendments made to section 188 by the Homelessness Reduction Act 2017 (“the 2017 Act”).
I record my gratitude to both Counsel for the assistance they provided to me with their clear and helpful submissions both in writing and during the telephone hearing itself.
Factual Background
The Claimant is of no fixed abode. He is 30 years of age. He suffers from a number of medical issues. It is unnecessary for determination of this claim to set these out. One consequence of them is that he finds it hard to go outside or to be around other people.
On 15 June 2018 the Claimant contacted the Defendant for homelessness assistance. Having assessed that initial application, the Defendant was satisfied that the Claimant was homeless and eligible for assistance. On 15 July 2018 the Defendant completed an Assessment and Personalised Plan Form with the Claimant which set out agreed steps the Claimant and the Council were to take to secure suitable accommodation. These events are set out in a later letter dated 12 December 2019. That later letter deals with a revision to the Assessment and Personalised Plan Form following the Claimant's subsequent change of circumstances to which I will come to in a moment. The letter of 12 December 2019 identifies its subject-matter as being:
“S189A Assessment and Personalised Plan (Housing Act 1996 as amended) & S189B (Housing Act 1996 as amended) – Relief Duty”
The Defendant has stated that the Claimant was initially residing with a friend before he approached the Defendant for assistance and the Claimant subsequently moved in with his brother. The Defendant states that it provided the Claimant with temporary accommodation at an address in Islington from 28 August 2018.
On 22 August 2019 the Claimant applied to the Defendant for homelessness assistance under Part VII of the Housing Act 1996. By letter dated 5 October 2019 a Senior Housing Practitioner of the Defendant wrote to the Claimant at his temporary accommodation address in response to that application. The letter was headed “RE: Notification of Decision — Part VII of the Housing Act 1996.” The opening paragraph of the letter stated:
“I write further to your homeless application made to this authority on 22 August 2019 and this Authority's decision pursuant to Section 184(3) of the Housing [A]ct Part VII. You have been interviewed and enquiries have been made on the information that you have given. I have taken into account all of the information provided. I have also considered the Homelessness Act 2002 and the Code of Guidance in reaching this decision.”
Pausing there, it is clear from this opening paragraph that the letter was intended to notify the Claimant of the Defendant's decision under section 184 (3) of the 1996 Act. The issue that arises on this claim is whether the letter also had the effect of ending the Defendant's interim duty to the Claimant under section 188 of the 1996 Act.
The letter listed information and evidence that had been taken into account by the Defendant and stated as follows (with underlining in the original):
“Following consideration of all the information provided and available we have decided that:
You are threatened with homelessness
You are eligible
You do not have priority need for housing assistance”
The letter then set out detailed reasons in numbered paragraphs as to why the Defendant did not consider the Claimant to have a priority need in light of the relevant definition in section 189(1)(c) of the 1996 Act. That decision and those reasons are not the subject of challenge in these proceedings, so it is not necessary for me to set them all out here.
The letter concluded in the following way:
“13. For the reasons set out above and having considered all of the information and situation as a whole; I have concluded that you are not in priority need. You are not significantly more vulnerable than an ordinarily vulnerable person as a result of being rendered homeless.
14. I regret that I cannot be of further help and the council will not be prov[id]ing you with accommodation on a temporary or permanent basis. Please note that your stay at this temporary accommodation … has been cancelled and you will be required to leave on Monday 14 October 2019, last night is Sunday 13 October 2019.
15. You can seek advice and assistance from our Housing Advice Team … located at 222 Upper Street, London N1 1XR telephone 020 7527 6371. The office is open Monday-Friday, 9am–4pm. If you wish to speak with someone you should present to the reception desk and ask to see an advice worker.
16. If you disagree with my decision you have the right to ask for a review of the decision which must be done in writing to the review officer and returned to us within the next 21 days. You may wish to seek independent legal advice at this point. You can email the Reviews and Appeals team on housing.review@islington.gov.uk.”
By email dated 16 October 2019 a support worker at Shelter wrote to the Defendant's Reviews and Appeals team to request a review of the “S184 non-priority decision” on the basis of the Claimant's medical conditions. The email and subsequent correspondence also asked the Defendant to provide accommodation to the Claimant under its discretionary power in section 188(3) of the 1996 Act pending the outcome of that review. The Defendant agreed to carry out a review, but it refused to provide accommodation pending the outcome of that review.
The request for accommodation pending the outcome of the review was repeated in a letter dated 31 October 2019 from solicitors acting on behalf of the Claimant, and then in pre-action protocol correspondence dated 5 and 6 November 2019. The Claimant's solicitors sought to rely on the factors set out in R(Mohammed) v Camden LBC [1997] 30 HLR 15 in support of the request. The Defendant maintained its decision not to exercise its discretion to provide such accommodation. It is fair to observe that in none of that initial correspondence did the Claimant advance the point that is now in issue in these proceedings.
By further pre-action letter dated 8 November 2019 the Claimant's solicitors wrote to the Council reiterating a potential challenge to the failure to exercise that discretion; this time, however, the letter also included what was described as “fresh matter being challenged”, namely an alleged failure to provide accommodation in accordance with an ongoing duty under section 188(1) of the 1996 Act.
The letter contended that the Defendant's duty under section 188(1) of the 1996 Act could only be brought to an end in the ways specified in section 188 of the 1996 Act as now amended and, in the Claimant's case, pursuant to section 188(1ZA) as...
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