England and Wales High Court (Administrative Court) Decisions

QUEEN and MAYOR AND BURGESSES OF LONDON BOROUGH OF ENFIELD on the application of CHRISTOPHER CAMPBELL [2001] EWHC Admin 354 (16th May, 2001)

CO/551/2001

Neutral Citation Number: [2001] EWHC Admin 354

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

CHELMSFORD CROWN COURT

Wednesday 16^th May 2001

B E T W E E N

Defendant

Claimant

MR JUSTICE NEWMAN:

THE FACTS

1. On 2 November 2000 flooding occurred at premises at 152 Montagu Road, London N18, being premises occupied by the claimant and his daughter, aged 12 years. The claimant applied to the defendant's Homeless Persons Section and, by reason of the flooding, was given temporary accommodation. On 27 November 2000, Niall Magee, the defendant's environmental housing officer, visited 152 Montagu Road and concluded that the premises were "still very damp" and would need at least a month to dry out. On 5 January 2001, Mr Magee visited again and on that date determined that the premises were suitable for occupation, but the records suggest that his opinion was not made known to the defendant until 19 January. On 23 January 200l the defendant informed the claimant:

"We have investigated your claim of being homeless of (sic) threatened with homelessness.

This letter is a formal notice that we have considered all aspects of your position and are satisfied that you are not homeless or threatened with homelessness.

This is because Mr Magee from this authority's Environmental Health Department visited your tenancy at 152 Montagu Road, Edmonton, N18, and declared that it is now habitable and fit for you and your daughter to return to."

2. Between Mr Magee's visits, namely on 21 December 2000, the claimant attended at 152 Montagu Road, but he found the locks had been changed. He immediately contacted the defendants and informed them of this development. He was advised to see a solicitor. Additionally, a meeting was arranged, to assist the claimant, at the defendant's Housing Advice Centre, which his landlord attended, but the claimant did not, although it had been expected that he would. A letter dated 10 January 2001 from the Housing Advice Centre refers to the meeting and its consequences as follows:

"(1) On 28 December 2000, you informed Miss Sharry, Housing Advice Manager, during your interview at Housing Advice, that the locks had been changed to your property, you alleged by the landlord Mr Williams and as a result you were denied access. In relation to this matter, Miss Sharry referred you to a solicitor, Spicer & Co in order to protect your interest. Could you please inform me by telephone what steps/actions they have taken to protect your interest and ensure that uninterrupted access is available to you as a tenant of the property. It is essential that your interests are explored and protected.

(2) In relation to the non-payment of Housing Benefit at 152 Montagu Road, which has arisen because Housing Benefit are now paying towards the cost of your temporary accommodation, I hope that you have explored with your solicitors what remedies are available if the landlord attempts to recover possession for non-payment of rent i.e. the possibility of a counter-claim because of the inconvenience suffered due to the fact that the landlord has failed to maintain the accommodation and make it available.

(3) Once the Environmental Health Department has deemed 152 Montagu Road fit for human habitation, it is likely that the Homeless Persons Unit will cancel your Bed and Breakfast because you are no longer homeless. Your permanent accommodation, 152 Montagu Road should be available for your immediate occupation after the assistance of your solicitor.

(4) If you fail to take the steps advised by Miss Sharry on 28 December, that you see your solicitor Spicer & Co in order to protect your interest and gain access to 152 Montagu Road and voluntarily surrender or vacate the property and then ask the Homeless Persons Unit to continue to provide temporary accommodation, there is a risk that you could be regarded as making yourself intentionally homeless. Due to your deliberate act/omission of failing to protect your legal rights at 152 Montagu Road through your solicitor Spicer & Co, you have become homeless. If you are regarded as making yourself intentionally homeless, the duty of the Homeless Persons Unit will be to provide temporary accommodation for a reasonable period of time, around 28 days."

Further, the letter dated 23 January 2001 referred to the meeting and the new development as follows:

"With regards to your claim that the locks to 152 Montagu Road have been changed by your landlord. This matter has been dealt with by the Housing Advice Team. They advised both you and your landlord of your rights to occupy this accommodation and of the correct procedure for your landlord to follow in order to regain his property. You were referred to Spicer & Co in order to obtain legal advice on how to protect your interest in 152 Montagu Road N18."

3. On 26 January 2001, in response to the letter of 23 January, the claimant telephoned the defendant and stated, without elaboration, that the property was not fit for him to return to and that he had consulted a solicitor, who was applying for legal aid. He was advised that it was for him to take action to regain possession. It is likely that he had not already consulted a solicitor on that date. But he did go to Spicer & Associates on 29 January. A letter before action, threatening proceedings for an injunction against the landlord, was drafted, dated 1 February, but it was never sent. The evidence indicates that on 25 January the claimant had gained access to the property through an open back door and according to his evidence " ... found most of the floorboards had been taken up and the property was still damp". Some photographs of uplifted floorboards are in evidence, but it is not clear when they were taken.

4. The letter before action was not sent because the claimant maintains he was advised that an injunction to require the landlord to remedy the dampness could not be obtained and an injunction to re-admit him "would not assist". It is not entirely clear what the claimant means. Unlawful eviction and the state of the premises are obviously separate and distinct issues. If the premises were unfit for occupation because they were damp it is to be inferred that the defendant would have continued to house him. If they were fit for occupation he needed to regain entry and an injunction would obviously assist him to achieve that end.

5. According to the notes made by the defendant of telephone calls on 29 January, the claimant's sister stated that she had obtained access to 152 Montagu Road and considered it was not fit for occupation. On 5 February, by telephone and by letter, Spicer and Associates maintained that the property was not fit for occupation. The solicitors requested that the defendant re-house the claimant and his daughter in suitable accommodation and complete a current report on the fitness of the property for occupation. At that date it was apparent that the claimant had decided not to pursue any proceedings for unlawful eviction. No reliance was placed by the solicitors upon the landlord's action in changing the locks in support of this application for the claimant to be re-housed, which was made on 5 February. The claimant's position and the basis for his application to be re-housed was confirmed by a letter dated 8 February from Spicer & Associates:

" ... the facts of the situation are that the property is not suitable for Mr Campbell to return to with his daughter. The question of Mr Williams not permitting him to re-enter the premises is another point.

We are also quite dismayed that you are implying in your letter that we have refused to assist Mr Campbell in regaining access to the property. We have been presented with the facts of the matter and it is clear that Mr Campbell is presently homeless and should be assisted by the local authority."

The letter also stated that legal aid " ... to enable him to proceed with judicial review proceedings against the local authority in respect of the decision to terminate the provision [or] temporary accommodation" had been granted.

It is plain that at this date it was being asserted that the decision to terminate the provision of temporary housing was unlawful because the premises were not fit for occupation.

The decision had been formally communicated by the letter of 23 January but had not been implemented so as to require him to give up possession until 5 February.

6. The legal basis for the application, contained in the letters of 5 and 8 February, appears from the letter of 7 February. Spicer & Associates stated that the claimant " ... requests review of the decision of 23 January 2001" and they requested the defendant to continue to re-house the claimant in temporary accommodation pending the review. This was plainly a reference to Section 188(3) Housing Act 1988. The letter threatened judicial review of any unfavourable exercise of discretion. The only ground disclosed for this claim and the threat of proceedings was the contention that the premises were not fit for occupation. On a proper analysis, the alleged unfitness of the premises for occupation formed the basis for two claims. First, a challenge to the decisions of 23 January and 5 February, and secondly, a request for a review and a favourable exercise of discretion pending review.

7. By 8 February legal aid to proceed with judicial review in respect of the 23 January decision had been obtained. Having regard to the available remedy of review, the application for legal aid and its grant are surprising and call for comment. But more significantly, on 9 February Spicer & Associates adopted a different legal tactic. They stated:

" ... due to the change of circumstances, it should be considered that our client is making a fresh application so that this is not a case where a discretion arises under S.188(1) Housing Act 1988 [the discretion arises under S.188(3)]. There has been a material change of circumstances in that following the visit of the Environmental Health Officer, the floorboards have been taken up at the premises and the premises are damp .... Our client will be discontinuing the review as this is a fresh application for housing. Therefore, our client should be re-housed temporarily pending inquiries"

This decision was highly material to the legal aid which had already been granted because, by abandoning the review, the decision of 23 January was no longer challenged. I am not, at present, aware of what was done to inform the Commission of the change.

8. Prior to receipt of this letter the defendant had responded to the request to exercise discretion pending review. By letter dated 8 February it stated:

"With regard to your specific request that accommodation is provided for your client pending review we would request that prior to our exercising our discretion to do so you would confirm the following:

* Can Mr Campbell gain access to the accommodation at 152a Montagu Road, N18?

* Are you satisfied that an illegal eviction has taken place?

* What are your grounds for refusing to assist Mr Campbell in regaining access to the property if this is the case?"

9. The Judicial Review Claim Form, dated 12 February, challenges the decision of 5 February, "communicated orally to the claimant terminating the claimant's temporary accommodation". The grounds relied upon for the challenge, set out in the Claim Form, are:

(1) the claimant had demonstrated a prima facie fresh case of homelessness based on unlawful eviction and flood damage;

(2) the defendant had failed to carry out any or any proper enquiries pursuant to S.184 Housing Act 1996 as to the fresh incidence of homelessness;

(3) no reasonable authority in the light of the evidence, in particular the photographs, could have failed to provide temporary accommodation.

This last ground can be summarily considered. It is plain from the evidence that the defendant had not received the photographs by 5 February and were not put on notice as to their existence until 7 February. Further, had the photographs been available, whilst they demonstrate a property in a state of disrepair, it is impossible to regard them as establishing that the premises were unfit for habitation on 5 February 2001. Without information as to the extent of the disrepair and the time needed to replace the boards it is not possible to conclude whether, on that ground alone, the premises were, on 5 February, unfit for occupation. In any event, had there been an opportunity for the defendant to consider the photographs before requiring the claimant to vacate the temporary accommodation, it would have been entitled to make enquiries into the circumstances in which the floorboards had been taken up.

10. The Claim Form calls for further comment. The Detailed Grounds (Section 6) included the following:

(1) Reference to Section 175(2) Housing Act 1996 and paragraph 13.11 Code of Guidance. They relate to the position where the applicant is unable to gain entry to accommodation.

(2) A contention that after an adverse decision under Section 184 an applicant is entitled to make a fresh application if there has been a material change in circumstances.

The Statement of Facts relied on (Section 7) included the following:

(1) That the defendant "determined the applicant could return to Montagu Road on 5 January".

(2) That subsequent to 5 January the landlord changed the locks.

(3) That the claimant provided photographic evidence of the state of the premises before 5 February 2001.

(4) That the claimant cannot reasonably gain access to the premises or immediately resume occupation of the same.

The following relief was sought:

(1) An order quashing the decision of the defendants dated 5 February 2001.

(2) A mandatory order directing the defendant that temporary accommodation be made available and that it consider his application for accommodation according to law.

11. Neither the request for accommodation the subject matter of the decision of 23 January, nor the request made on 5 February, can be regarded as having been made on the basis of the inability of the claimant to gain re-entry to Montague Road. The defendant's position with regard to gaining re-entry was made clear in the letters of 10 and 23 January. The claimant was warned that if he failed to take steps to regain possession a request by him for accommodation because he had been evicted could be refused on the ground that he had made himself intentionally homeless. In my judgment no request was ever made on that ground and the defendant was entitled to issue the warning. Further, the Statement of Facts is not in accordance with the facts. Mr Magee visited and concluded that the premises were habitable on 5 January, but the defendant received the report on 19 January. The claimant had claimed the locks were changed on or before 28 December. The claimant could have taken steps to regain possession.

12. The claimant's Skeleton Argument, in part, follows the grounds set out in the Claim Form, but, in other respects, relies heavily upon events after 5 February. In paragraph 9, it is submitted:

"The claimant made a fresh application for accommodation and the Defendants did not consider this application or indeed notify the claimant or his Solicitors on any decision with regard to that fresh application."

In paragraph 9(2) a challenge to the discretion under S.188(3) is raised as an alternative argument. This is surprising, since it was only on 5 February that a request to be re-housed was made and its legal basis was not clarified until the letter dated 7 February.

13. The defendant submitted that the issue raised by the application was whether a local housing authority was obliged as a matter of law to accept a second application for housing assistance from an applicant who has already made an application to the same authority. This must be taken to be a reference to the request contained in the letter dated 9 February and the defendant's action in not dealing with it as a fresh application or at all. But the decision under challenge is the oral decision of 5 February. There is no case in the Judicial Review Claim Form directed to an alleged wrongful refusal to consider the fresh application, but there is a claim for a mandatory order that the fresh decision be considered. No criticism can be levelled at the defendant for meeting the only point which could be discerned as surviving the claimant's shifts in tactics but I regard the confusion which permeates the claimant's case as wholly unacceptable.

14. The confusion permeated the hearing as well. As a result, I permitted counsel to advance arguments in connection with the whole sequence of events. Each presented their arguments with conspicuous skill and demonstrated the potentiality for the legislation giving rise to both substantive and procedural complexities. I shall now consider whether any arise in this case.

15. The following actions of the defendant have been subjected to scrutiny:

(1) The formal decision, communicated by letter dated 23 January, which determined that the claimant was not homeless, because the premises at 152 Montagu Road were fit for occupation and that his temporary accommodation would be cancelled on 30 January.

(2) Confirmation of the defendant's refusal to continue to accommodate the claimant, communicated to the claimant orally on 5 February.

(3) The response, by letter dated 8 February, to the formal request for a review of the decision of 23 January, and the claimant's request for accommodation pending the exercise of discretion.

(4) The defendant's conduct after receipt of the claimant's "fresh" application to be considered homeless.

The Housing Act 1996 Part VII

16.

(1) By section 184(1) if an authority has reason to believe that an applicant may be homeless or threatened with homelessness, it shall make such inquiries as are necessary to satisfy themselves (a) whether the person is eligible for assistance, and (b), if so, whether any duty (and if so what duty) is owed to him.

(2) By section 175(2) a person is homeless if he has accommodation but cannot secure entry to it.

By section 175(3) a person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for him to continue to occupy.

(3) By section 188(1) if an authority has reason to believe that an applicant may be homeless, eligible for assistance and have a priority need, it shall secure that accommodation is available for his occupation pending a decision as to the duty (if any) owed to him.

(4) By section 184(1) once an authority has completed its inquiries, it shall notify the applicant of its decision and, so far as any issue is decided against his interests, inform him of the reasons for its decision. A notification must also inform the applicant of his right to seek a statutory review under s.202.

(5) An authority may continue to secure that accommodation is available for an applicant's occupation pending a decision on a review (section 188(3)).

(6) An applicant dissatisfied with a decision on review may appeal to the County Court on any point of law.

(7) An authority may continue to secure that accommodation is available for the applicant pending an appeal to the County Court: s.204(4).

(8) A decision not to accommodate pending review or appeal to the County Court is amenable to judicial review.

R v Camden London Borough Council ex parte Mohammed (1998 30 HLR 315;

R v Brighton & Hove Council ex parte Nacion (1999) 31 HLR 1095;

R v London Borough of Newham ex parte Lumley (transcript 28.2.2000

(9) An authority is required to consider all the facts afresh as at the date of conducting the review. The review is not limited to the facts available at the initial decision. Subsequent events must be taken into account.

R v Ealing LBC ex parte Surdanja [1999] 1 All E R 566

London Borough of Hammersmith and Fulham v Mohammed [2000] 32 HLR 481

Conclusions

17. The decision of 23 January under S.184(1) and the defendant's adherence to it on 5 February is not susceptible to judicial review because the claimant had a remedy by way of statutory review and appeal to the County Court. Between 21 December 2000 and 19 January, when the defendant learned of Mr Magee's opinion, there had been several occasions of contact between the claimant and the defendant. On each, the defendant had urged that he take legal advice in connection with his complaint of wrongful eviction. He was warned that his failure to take any action could give rise to the risk that he could be regarded as intentionally homeless (see letter dated 10 January). In the decision letter the defendant left the question of homelessness, by reason of eviction, open:

"Should you become homeless in the future and it is the Council's opinion that you have become so because you chose to ignore the advice of its officers, it is likely that you would be considered to have become homeless intentionally."

No decision was reached upon the basis that the claimant was "intentionally homeless". The decision under challenge was reached upon the basis that 152 Montagu Road was not fit for occupation.

18. The claimant was entitled to and did seek a review of that decision. There should not have been an application for legal aid to apply for judicial review whilst that remedy was available. The request for discretion to be exercised to provide accommodation pending review was a proper request. The defendant was entitled to require clear answers to the questions raised in its letter dated 8 February pending exercise of its discretion. The matters were relevant to its exercise of discretion. By giving notice of the withdrawal of his request for a review (or of his intention to withdraw) the defendant was relieved of its obligation to exercise its discretion. By withdrawing the application for review the claimant withdrew reliance upon the alleged illegality of the decision of 23 January and 5 February.

19. The withdrawal of the request for a review was a deliberate tactical step, calculated to impose a duty upon the defendant to provide accommodation under section 188(1) of the Act, rather than to leave the matter to the exercise of discretion under section 188(3). Had grounds existed for the making of a "fresh" application, the fact that by making it a more favourable legal position would be achieved, would not invalidate the request. But, having regard to the duty of the authority to take account of subsequent events at a review, the need to make a fresh application is rarely, if ever, likely to arise. Further, any new facts affecting the merits, will be available in support of a favourable exercise of discretion and can be relied upon in any consequent application for judicial review in connection with the exercise of discretion.

20. There were no grounds for a fresh application in the instant case. The defendant had concluded, on the basis of information received from Mr Magee, that the premises were habitable and that would have been the subject of review. It is not immediately obvious how the claimant could be sure that the floorboards were not taken up when Mr Magee visited, but he appears to have been; see the letter dated 9 February from his solicitors:

"There has been a material change of circumstances in that following the visit of the Environmental Health Officer, the floorboards have been taken up at the premises and the premises are damp."

But whatever may have been the circumstances in which the floorboards came to be taken up, when they were taken up, whether or not the premises were habitable, were all matters to be determined at the review and according to the facts at the date of the review. Equally, if at the date of the review, there was evidence that, notwithstanding attempts to regain possession, the claimant was unable to regain entry, that would have been taken into account.

21. By continuing with this claim for judicial review, which challenged the oral decision of 5 February, the claimant acted inconsistently with his earlier withdrawal of his statutory claim for review of the decision. Further, his claim in these proceedings, so far as it sought relief in connection with the fresh application, disclosed no grounds for impugning the defendant's conduct in not responding to the fresh application. In my judgment the defendant was not bound to respond, because:

(1) the claimant was not entitled to pursue a challenge to the defendant's conduct in connection with the 23 January and 5 February decision as well as attempting to maintain that a valid fresh application had been made;

(2) no grounds existed for a fresh application;

(3) having regard to all the circumstances, it amounted to an abuse of the procedures available under the Housing Act 1996.

This application for judicial review is dismissed.