The Queen (on the application of ZLL) v Secretary of State for Housing, Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fordham |
| Judgment Date | 18 January 2022 |
| Neutral Citation | [2022] EWHC 85 (Admin) |
| Docket Number | Case No: CO/3005/2021 |
| Year | 2022 |
| Court | Queen's Bench Division (Administrative Court) |
and
[2022] EWHC 85 (Admin)
Mr Justice Fordham
Case No: CO/3005/2021
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Jamie Burton QC, Siân McGibbon and Joshua Hitchens (instructed by Camden Community Law Centre) for the Claimant
Jack Anderson (instructed by Government Legal Department) for the Defendant
The Interested Parties did not appear and were not represented
Hearing date: 15/12/21
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HON. Mr Justice Fordham
Introduction
This is a case about Government policy, rough sleepers and the pandemic. It comes before the Court as a claim for judicial review, with permission granted by Jay J on 27 September 2021. The claim concerns the 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 initiative to get rough sleepers off the streets during the pandemic due to their vulnerability and the need to prevent others from being infected… On 23 March 2020, the first national lockdown was announced in response to the pandemic. On 26 March 2020, as part of the national measures adopted by the Government to counter the pandemic, Luke Hall MP, Minister for Local Government and Homelessness, wrote to all local authorities stating that “it is now imperative that rough sleepers and other vulnerable homeless are supported into appropriate accommodation by the end of the week”. He referred to the need to “bring in those on the streets to protect their health and stop wider transmission”. This marked the start of what has become known as the “Everyone In” initiative. The object of this public health initiative was to provide accommodation for rough sleepers as a matter of urgency. It recognised a heightened risk arising from homelessness .
The foreword to the Kerslake Commission on Homelessness and Rough Sleeping (final report, September 2021) said this:
Everyone In was an emergency response to a health crisis… By almost any measure, the initiative was a resounding success. Some 37,000 people were brought in off the streets according to Government estimates. An article in The Lancet calculated that at least 260 deaths have been avoided .
It is safe to use the word “initiative” for “Everyone In”, as Freedman J did in Ncube (he also used the word “scheme” and, elsewhere, “policy”). In this case, “initiative” was the word used: in the judicial review claim form; in the opening line of the Claimant's skeleton argument; throughout the witness statement in support of the claim (Derek Bernardi, 1.9.21); throughout the Acknowledgment of Service (“AOS”) of the Second Interested Party (“Shelter”); in public statements by or for the Defendant (see eg. §§17, 24, 27, 29 below); and in the witness statement filed on behalf of the Defendant (Catherine Bennion, 1.11.21).
“Rough sleeping” is described in a research publication entitled “Coronavirus: Support for Rough Sleepers (England)” (12.10.21, HC Library No.9057), where Hannah Cromarty explains (§§1.1 and 1.2):
Rough sleeping is the most extreme form of homelessness and many rough sleepers have high levels of complex needs. Many people who sleep rough do not have a statutory right to accommodation under the homelessness legislation, for example because they are not deemed to be in a ‘priority need’ category or are ineligible due to their immigration status… Rough sleepers are vulnerable to coronavirus (Covid-19); they are more likely to have underlying health conditions than the wider population and to face difficulties in following public health advice on self-isolation, social distancing and hygiene. They can also face barriers in accessing public health information and health care. Shared facilities used by rough sleepers – such as day centres, hostels and night shelters – may increase the risk of transmission of the virus .
The foreword to the Kerslake Commission final report says this:
… ‘rough sleeping’ … is deeply damaging to those experiencing it and to society at large. The health consequences of prolonged street homelessness are known to be severe and the costs of treatment and support escalate sharply the longer people are on the streets. For homeless young women, the risks of exploitation are high .
The Claimant is a Chinese national who came to the United Kingdom in 2002 and whose visa expired in 2004. His immigration status puts him in the category NRPF (no recourse to public funds) and he has spent many years rough sleeping. Between March 2020 and April 2021, he was accommodated in a series of homeless shelters operated by various charities. In April 2021 he approached the First Interested Party (“Camden LBC”) for accommodation, relying on the Everyone In initiative. Camden LBC accepted that it had a discretion to accommodate him but said it had decided not to exercise that discretion in his case, because he was NRPF and not within the “most vulnerable and at risk” group of rough sleepers. A separate claim for judicial review challenges that decision and has been stayed pending resolution of this claim. The Claimant is protected by an anonymity order. It was not in dispute before me that he has standing (a sufficient interest) to bring and maintain this judicial review claim.
The claim for judicial review challenges, as its target, the Defendant's “decision to end the ‘Everyone In’ initiative”. As marking that “end”, Mr Burton QC – in his submissions for the Claimant – focused specifically on what is said in passages in two documents generated in these proceedings: the Government Legal Department (“GLD”)'s pre-action letter of response §23 (see §34 below) and the Defendant's pleaded Detained Grounds of Resistance (“Defence”) §64 (see §36 below). Two grounds for judicial review are put forward: (1) breach of a public law duty by adopting an unpublished position in non-conformity with published Government policy; and (2) breach of a public law duty in not conducting prior consultation with Shelter. Before I turn to analyse these two grounds for judicial review, I will address three topics: first, some basic ideas regarding rough sleepers (§6 below); secondly, some basic legal points relevant to ground one (§7 below); and thirdly, some key events in sequence and outline (§§8–37 below). In doing so, and to make the judgment easier to navigate, I will use labels (with underlining) at the start of paragraphs or sub-paragraphs (§§6–37 below).
It is appropriate to record at the outset that the Human Rights Act 1998 (“ HRA”) does not feature in the Claimant's legal challenge in the present case. I mention this, because it is recognised that HRA:ECHR Article 3 (the right not to be subjected to inhuman or degrading treatment) can require state action in the context of rough sleeping and destitution, where suffering reaches the necessary degree of severity: see R (Limbuela) v Secretary of State for the Home Department [2005] UKHL 66 [2006] 1 AC 396. It is no part of the Claimant's case that curtailment of the Everybody In initiative breaches Article 3. Nor is it said that the Defendant has breached the public law duty to act “reasonably”; nor breached any public law “legitimate expectation”.
Some basic ideas
I have found it helpful to keep the following points in mind, bearing in mind that – in principle – action could be taken in respect of any or all of those described here:
(1) Rough sleepers and ‘non-rough sleepers’. There is a basic distinction between a rough sleeper and a ‘non-rough sleeper’. There would need to be an individualised assessment by a decision-maker, to decide whether an individual is or is not a rough sleeper. The distinction between rough sleeper and non-rough sleeper is not the same as homeless and non-homeless.
(2) Persons ‘at-risk’ of becoming rough sleepers. A non-rough sleeper may be ‘at-risk’ of becoming a rough sleeper. Identifying an ‘at-risk’ rough sleeper will again involve an individualised assessment.
(3) ‘New’ rough sleepers. A rough sleeper may be a ‘new’ rough sleeper, who would not have been assessed to be a rough sleeper at a relevant stage in the past. A ‘new’ rough sleeper may have come onto the streets, or back onto the streets. They may be newly arrived in the UK. The point is that today's and tomorrow's rough sleepers are not necessarily catered for by action which dealt with yesterday's rough sleepers.
(4) ‘Move-on accommodation’ for previous rough-sleepers. There is a difference between providing immediate-response accommodation for a rough sleeper; and providing follow-up ‘move-on accommodation’ for a previous rough sleeper. The first helps them ‘off the streets’. The second then helps them not to be ‘back on the streets’ in the future.
Some basic legal points
Here are some basic legal points relevant to ground one:
(1) The ‘reach of powers’ point. Local authorities have limited powers and cannot lawfully act beyond the scope and ‘reach’ of those powers. This point finds expression in Ncube at §43, where Freedman J explained that a local authority “is a statutory body and can only exercise those powers conferred on it by statute”; and that it “does not have any non-statutory or common law powers”. The ‘reach of powers’ point was the essential backcloth for the Court's decision in Ncube (see §7(2) below).
(2) ...
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