The Queen (on the application of Timon Ncube) v Brighton and Hove City Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Freedman |
| Judgment Date | 11 March 2021 |
| Neutral Citation | [2021] EWHC 578 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO-3615-2020 |
[2021] EWHC 578 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINSTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Freedman
Case No: CO-3615-2020
and
and
Martin Westgate QC and Joshua Hitchens (instructed by Lawstop Solicitors) for the Claimant
Sian Davies (instructed by Brighton and Hove City Council Legal Services) for the Defendant
Liz Davies, Adrian Berry and Connor Johnston (instructed by Freshfields Bruckhaus Deringer) for the Intervener
The Interested Party did not appear, but served detailed grounds
Hearing date: 15 December 2020
Approved Judgment
I Contents
| SECTION NUMBER | SUBJECT | PARAGRAPH NUMBER |
| I | Contents | |
| II | Introduction | 1–6 |
| III | History of the Claimant | 7–11 |
| IV | The background to the current dispute: the “Everyone In” policy. | 12–16 |
| V | Academic claim | |
| (i) The submissions | 17–21 | |
| (ii) Discussion | 22–29 | |
| VI | Legal Framework: Part VII Housing Act 1996 | 30–42 |
| VII | s.138 Local Government Act 1972 | 43–45 |
| (i) Claimant's submissions | 46 | |
| (ii) The evidence | 47–49 | |
| (iii) Defendant's submissions | 50–52 | |
| (iv) Claimant's submissions | 53–55 | |
| (v) Discussion | 56–64 | |
| VIII | s.2B National Health Service Act 2006 | |
| (i) Claimant's submissions | 65–69 | |
| (ii) Defendant's submissions | 70–74 | |
| (iii) Discussion | 75–79 | |
| IX | s. 180 Housing Act 1996 | 80–81 |
| X | ||
| (i) Introduction | 82–87 | |
| (ii) Submission about Convention compliant reading of the Localism Act 2011 | 88–110 | |
| iii) Submission that a local authority may use the Localism Act 2011 to provide accommodation if it is not acting qua housing authority | 111–133 | |
| (iv) Attempts to distinguish AR | 134–140 | |
| XI | Issues | 141 |
| Issue 1: Is the claim academic? | 142 | |
| Issue 2: If so, are the conditions for hearing an academic claim met? | 143 | |
| Issue 3: What is the decision which is impugned by way of this claim? | 144 | |
| Issue 4: In respect of the definition of ‘emergency’ under s.138 Local Government Act 1972: | 145 | |
| (a) The Claimant invites the Court to determine whether as a matter of fact, Covid-19 amounts to an emergency under the Act; and | ||
| (b) Did the Defendant err in failing to consider whether the pandemic does amount to an emergency under s.138 of the Act? | ||
| Issue 5: Can the Defendant provide or assist in the provision of accommodation under any of the following provisions: | ||
| (a) Section 138 Local Government Act 1972 | 146 | |
| (b) section 2B National Health Service Act 2006 | 147 | |
| (c) section 180 Housing Act 1996 by way of providing assistance to a voluntary organisation such as St Mungo's | 148 | |
| (d) section 1 Localism Act 2011. | 149 | |
| Issue 6: Does s. 185 Housing Act 1996 preclude the provision of accommodation or assistance in providing accommodation pursuant to the Defendant's Covid-19 accommodation policy? | 150 | |
| Issue 7: Does s. 185 restrict or limit the ability of the Defendant to lawfully provide assistance in a capacity other than as housing authority? Accordingly, does it affect D's ability, if any, to provide accommodation under s. 138 or s. 2B? | 151 | |
| Issue 8: As regards to s. 1 Localism Act 2011: | ||
| (a) Is s. 185 a pre-commencement limitation preventing the use of the s. 1 power to provide any kind of accommodation to non-eligible persons; | 152 | |
| (b) if so, then do ss.1 and or 2 Localism Act 2011, read with s.3 Human Rights Act 1998, require local authorities to secure accommodation for homeless people where necessary to avoid a breach of a person's ECHR rights or their EU rights? | 153–155 | |
| Issue 9: Did the Defendant proceed on a mistake as to law when deciding it had no power to accommodate the Claimant? | 156 | |
| Issue 10: Did the Defendant err in failing to consider whether Paragraph 3 of Schedule 3 of the Nationality and Immigration Act 2002 apply to the instant case? | 157–159 | |
| XII | Conclusions | 160–164 |
II Introduction
This case falls to be decided in the context of the COVID pandemic. The claim concerns the powers available to local authorities to provide accommodation for rough sleepers with no recourse to public funds (“NRPF”). At an early stage of the pandemic, there was rolled out the “Everyone In” scheme which was an initiative to get rough sleepers off the streets during the pandemic due to their vulnerability and the need to prevent others from being infected. Later, there was a concern that in respect of NRPF persons, this was not permitted and was contrary to the law. The way in which the matter was summarised at the permission stage by Ms Heather Williams QC sitting as a Deputy Judge of the High Court was as follows:
“The central issue of whether the Claimant's status as a person within Sch. 3, para 7, Nationality Immigration and Asylum Act 2002 and s.185 Housing Act 1996 precludes him from being accommodated under the Defendant's COVID-19 accommodation policy gives rise to arguable grounds and issues of public importance.”
The case has been brought by the Claimant, a homeless failed asylum-seeker who sought accommodation from the Defendant local authority (“Brighton CC”) in September 2020. This was refused. In these proceedings, he seeks to argue that the Claimant was required to accommodate him. The Defendant disputes this, contending that “there is no statutory provision empowering it to accommodate C” as “[h]is unlawful status disqualifies him from local authority support” (see detailed grounds at [54]) and that any policy of accommodating homeless persons “irrespective of immigration eligibility” would be unlawful (see detailed grounds at [41]).
The Claimant's circumstances have changed. On 30 November 2020, he was provided with, and moved to, Home Office accommodation in Swindon. Thus, he became accommodated. Further, he no longer lives in the area of the Defendant. It is submitted on behalf of the Defendant that the case is academic. The Defendant opposes the idea that this case has wider application, saying that it is fact sensitive such that it cannot be a case of wider significance beyond the facts of the particular case. Further, the Defendant objects also to what they say is an impermissible attempt to create a “rolling claim” in which objection is made to policies which came into existence after the issue of this claim for judicial review.
The Defendant relies especially on s.185 Housing Act 1996 which (together with the relevant secondary legislation) determines who is and is not eligible for homelessness assistance under Part VII Housing Act 1996, based on immigration status. The Defendant submits that persons such as the Claimant, who require leave to remain in the UK but do not have it, as well as a number of classes of persons in the UK lawfully, are ineligible for homelessness assistance as a result of s.185. The effect, says the Defendant, is that the Defendant did not have power to provide housing assistance to the Claimant because the claim is an impermissible attempt to circumvent these prohibitions and limitations.
The Claimant and Shelter as Intervener submit that local authorities such as the Defendant do have the power to intervene to mitigate the effect of the pandemic and to protect the human rights of those within their area. In particular, they submit that where there is a statutory scheme outside the Housing Act 1996, the ineligibility in s.185 does not apply. Further and in any event, they say that a reading of legislation to ensure that it is Convention compliant provides the power of the local authority to be able to respond to the pandemic. In the course of the judgment, there will be considered in particular s.138 Local Government Act 1972 (power to act in an emergency involving danger to life), s.2B National Health Service Act 2006 (meeting public health functions), s.180 Housing Act 1996 (assistance to voluntary organisations) and Localism Act 2011 (general power subject to pre-commencement and post-commencement limitations).
The Court has had the advantage of written and oral submissions from the Claimant represented by Mr Martin Westgate QC and Mr Joshua Hitchens of Counsel and the Defendant represented by Ms Sian Davies of Counsel. Since the hearing, it has received further submissions from the Claimant and the Defendant, and a letter dated 30 December 2020 from the Ministry of Housing, Communities & Local Government to all Council Leaders in England. The Court has received evidence and had written and oral submissions from Shelter from Ms Liz Davies, Mr Adrian Berry and Mr Connor Johnston of Counsel. The Court has also received detailed grounds on behalf of the Interested Party dated 16 November 2021 signed by Mr Anderson of Counsel, which was of assistance, but save for that the Interested Party had no further part to play in the proceedings.
III History of the Claimant
The Claimant was street homeless. He is a former asylum seeker, who at the time of the claim being issued was living in the Defendant's district and spending most nights at Brighton and Hove Railway Station. The Claimant's evidence contained in his statement of 7 October 2020 is that he fled Zimbabwe having been threatened by the...
To continue reading
Request your trial
-
The Queen (on the application of ZLL) v Secretary of State for Housing, Communities and Local Government
...Government's “Everyone In initiative” for England, described as follows by Freedman J in R (Ncube) v Brighton and Hove City Council [2021] EWHC 578 (Admin) [2021] 1 WLR 4762 at §§1 and 12–13: At an early stage of the pandemic, there was rolled out the “Everyone In” scheme which was an ini......