England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION (ADMINISTRATIVE COURT)
(HIS HONOUR JUDGE KEYSER QC)

		Royal Courts of Justice Strand London, WC2A 2LL
		30 April 2015

1. LORD JUSTICE BEATSON: This is a renewed application for permission to appeal against the decision of His Honour Judge Keyser QC, sitting as a judge of the High Court. The judge refused the applicant, Emebet Mamo, a refugee from Ethiopia who now has UK citizenship, permission to apply for judicial review against the failure of the London Borough of Hammersmith and Fulham to comply with its duty under section 184 of the Housing Act 1996 in respect of her homelessness application. Permission to appeal was refused on the papers by Gloster LJ on 19 January 2015.
2. The factual background is complicated but can be summarised fairly briefly. A local authority is required to give assistance to homeless people by section 188(1) of the 1996 Act. If it has reason to believe a person may be homeless and they are eligible for assistance and have a priority need, it is under a duty to secure accommodation available and to provide such accommodation pending enquiries. The threshold is low: see M [2008] UKHL 14 at [36]. The Code of Guidance at paragraph 6.16 requires authorities to aim to complete and notify decisions within 33 days.
3. In this case in 2007 the claimant was housed in a Housing Association single home hostel and then, after her children joined her and she applied in November, was assessed in December and was given accommodation with a registered social landlord by the defendant.
4. The applicant is in poor health. She maintains that the accommodation is not suitable because she cannot access the toilet, cannot go upstairs with her young daughter, and cannot empty the commode with which she has been provided. In February 2008 she was advised to "be proactive" with Direct Lettings. (I interpose that in this application there is a lot of jargon.) There were criticisms of the respondent's failure to "engage" (see paragraph 20 of the claim); there are statements that the defendant "engaged" with the landlord (see paragraph 14); and whereas she is said (paragraph 12) to have "physical problems", her mental health problems are just described as "issues". I make this observation not simply to be pedantic, but because it is quite difficult to pin down exactly what is complained of. But I take it that what is alleged is a failure to work with the claimant and address her problems, although there was contact with the authority. I assume that there are no real differences between the meaning of "problems" and "issues".
5. In August 2008 the applicant was given a shorthold tenancy. She gave birth to a baby in September 2010 and needed a larger property. Her medical condition was said to give her priority. Accommodation was offered on a temporary basis in July 2011. It was claimed thereafter that the property she was in was not suitable. The defendant, however, in a letter dated 16 October 2013, stated that its initial investigation did not show that the applicant was currently living in accommodation that was so unsuitable that she urgently needed to be moved. That decision was not challenged.
6. Matters progressed. A letter dated 11 October was sent on behalf of the applicant. It was a letter before claim. A draft claim form was sent to the defendant on 13 November 2013 and, in January 2014, a doctor's report was furnished by those representing the claimant stating that her health meant that the housing was not suitable. Questions were asked by the defendant in February. There was an exchange of letters dated 6 and 14 February. Then, in a letter dated 20 February, the defendant informed the claimant's solicitors that she could approach the Council to make a fresh homelessness application and that, when she did this, she would be offered section 188 interim accommodation. There is comment in the letter about whether that would be possible within the Borough. The letter concludes, "Please let me know when Ms Mamo would like to approach. She should come to H&F Advice", and then an address is given.
7. These proceedings were received by the court and stamped on 29 May 2014, although the form is dated 28 May. Permission was refused on the papers by His Honour Judge McKenna, who discharged an earlier order by McGowan J granting limited interim relief. Since the reasons given by Judge McKenna are the same as those later given by His Honour Judge Keyser QC when he dealt with the renewal, it is not necessary to summarise them. Judge Keyser stated that it was manifest that by February 2008, when the claim was processed on the basis of the Direct Lettings Scheme; or by 5 August 2008, when the direct letting was in fact provided; or at the very latest by October 2013, when it was alleged that there was a breach and a response to the effect that no subsisting application was in existence or recognised, that by the latest of these dates there was a clear breach, if there was a breach at all. Judge Keyser stated that the suggestion that because there was a failure to give notification under section 183, time does not start to run "strikes me as wholly untenable when, as in this case, it is divorced from the actual facts".
8. The judge stated that it was plainly wrong to say that in circumstances where the local authority had made its stance perfectly clear that the reservation of reasons to a later date (here the response in October 2013) operates to extend time. He therefore refused permission "on the basis that it is unarguable that this case has been brought within time or promptly. It has been brought neither within time nor promptly". He also refused permission on the ground that there was a good alternative remedy by way of a Part 7 application under the Act in the normal way. He stated that the suggestion, which was repeated today, that the amendments to the legislation meant that there were differences between the efficacy of such a claim and of a judicial review meant that the alternative remedy was not adequate. He stated that the differences as explained seemed to fade to vanishing point.
9. In clear written and oral submissions today, Mr Johnson reiterates the grounds that he advanced, no doubt equally clearly, before Judge Keyser. Essentially, it is a simple point: the duty to make a decision in this sort of homelessness situation is a continuing duty. The authority did not deal with the application in accordance with Part 7; it did not refuse to accept homelessness; and it did not, having given temporary assistance, use the other routes specified in Part 7 to end its duty. While it was perfectly lawful, and may have been proper, for the local authority to have assisted the claimant with accommodation outside the Housing Act, as they did by diverting her into other accommodation since 2007, they have not either stated in a letter that she was not homeless so as to discharge the duty that was generated. Mr Johnson submitted that once the duty arose under section 184 it remained perpetually and that the defendant cannot rely on delay because the defendant would have to say when the challenge should have been made.
10. Mr Johnson stated that logically the duty arose instantly. But the guidance suggested 33 days, and if one added 3 months after that, it produced a timescale within which it is unreal in the real world to suppose that local authorities will make such decisions. There is no time limit imposed by Parliament in the 1996 Act. Given that the duty is a continuing duty, he submitted that every day there is a new breach.
11. Secondly, he submitted that because the Localism Act has changed the method of discharging a housing duty, and in particular has removed the limitations on the ability of an authority not to use private landlords, the remedy of making a new application is not adequate. In short, the substance underlying this claim is to seek to require the local authority to secure the sort of accommodation that it would have been required to provide prior to November 2012.
12. Notwithstanding the attractiveness of the way that Mr Johnson put the case, I have concluded that permission should not be given. Permission would have been a prelude to granting permission to move to judicial review and remitting the case to the Administrative Court. I have concluded that the case is one in which the judge did not arguably err in relation to delay. It is not the case that a party is free in the case of a continuing breach of duty to sit back and to choose the time at which he or she challenges by judicial review. It is well known that, in the words of Mr Fordham's compendium of cases, speedy certainty is required in such cases. Mr Hutchings put the case of R (Nash) v Barnet LBC before the court ([2013] EWCA Civ 1004) in which Davis LJ, who gave the only judgment of the court, with which the Master of the Rolls and Sharp LJ agreed, stated that:

"To the extent that Mr Giffin argued for a continuing breach of a continuing duty of consultation up until the time the Council was contractually committed, that in itself gets him nowhere: as the judge pointed out, under the Rules time runs when the claim first arose."

13. There are subtleties in this which will justify extensions of time in particular cases. Those were explored in a decision of the House of Lords in Burkett [2002] 1 WLR 1593, but, as was said in De Smith's Judicial Review at 16-056, the fact that a breach of public law duty is a continuing one does not necessarily make it irrelevant to take account of the date on which the breach began.
14. As to the argument that the defendant has to say when the challenge should be made, the rules are clear that the claimant must act promptly. Once he or she has a claim, it is for the claimant to show why he has chosen not to bring it. The fact that there is no time limit for these decisions by Parliament does not affect the duty of speediness, nor the requirement for certainty in public law cases.
15. I therefore refuse permission on that ground. I would also have been disinclined to grant permission because it is possible to make a fresh application. There will be differences because of changes in the regulatory and legal regime, but, as is seen from the long history of this case, there is a continuing relationship between the parties against the background of a changing legislative and regulatory framework. Mr Johnson did not today, and did not in the grounds, point to particular differences which mean that a new application would not be adequate. Finally, I say that he fairly accepted that there is no material before me justifying the delay in respect of the principal ground.
16. For these reasons, I refuse this application.