England and Wales High Court (Administrative Court) Decisions

TSHIKANGU v. LONDON BOROUGH OF NEWHAM [2001] EWHC Admin 92 (15th February, 2001)

Case No: CO/395/2000

Neutral Citation Number: [2001] EWHC Admin 92

IN THE HIGH COURT OF JUSTICE

QUEENS BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Thursday 15^th February 2001

B e f o r e :

Jan Luba QC (instructed by Hereward & Foster for the Applicant)

David Mathias (instructed by Legal Services, London Borough of Newham for the Respondent

MR JUSTICE STANLEY BURNTON:

1. The Applicant is and at all material times, apart from the period between 26 January 2000 and 3 April 2000 referred to below, has been, a resident of the London Borough of Newham. He lives with his wife and his daughter born in June 1999. Between 1995 and January 2000 he lived in private rented accommodation, at 87 Forest View Road, London E13, without security of tenure. In July 1999 his landlady gave him notice requiring him to quit his flat. In September 1999, she issued proceedings for possession in the County Court. On 3 December 1999, an order for possession was made against the Applicant requiring him to leave on 17 December 1999.

2. On 7 December 1999, the Applicant applied to the Respondents for accommodation. He completed an application form. On 14 December he was interviewed at the Council's Homeless Persons' Unit. No warrant for possession had yet been issued.

3. At 14 December 1999, the Applicant was not homeless. He still lived at 87 Forest View Road. Section 175(4) of the Housing Act 1996 provides that:

A person is threatened with homelessness if it is likely that he will become homeless within 28 days.

A person becomes homeless for the purposes of the Act when a warrant for possession of his home is executed rather than at the earlier date (here 17 December 1999) when the Court orders that possession be given up: see the decision of the Court of Appeal in Sacupima (unreported, 23 November 2000). Whether a person in the situation of the Applicant as at 14 December 1999 is a person threatened with homelessness is a question of fact. It will depend on the intentions of the landlord or landlady and the local delay in executing possession warrants. Where the landlord is intent on enforcing his order for possession immediately, and there is no significant delay before warrants are executed, a person in the Applicant's situation will be a person threatened with homelessness; but the expiry of the period for possession granted by the County Court does not of itself mean that a person is threatened with homelessness within the meaning of the Act. Until a warrant for possession is issued, it may be difficult to determine that a person is likely to become homeless within 28 days.

4. The Applicant was notified by letter dated 12 January 2000 that a warrant for possession had been issued and would be executed on 26 January. At 12 January, therefore, he was clearly "a person threatened with homelessness". On 14 January he took the letter to the Council. He was advised to return nearer the eviction date. On 19 January he returned to the HPU. Arrangements were made for the collection and storage of his and his family's possessions on 25 January.

5. However, the duty of a Local Authority to make necessary inquiries under section 184 of the Housing Act arises if it "has reason to believe that an applicant may be homeless or threatened with homelessness" (my italics). That duty may have arisen as early as 7 December; it certainly had arisen by Friday 14 January 2000. The Council put in hand its statutory inquiries on Wednesday 19 January. On 21 January 2000 a letter was produced, addressed to the Applicant at 87 Forest View Road, informing him that the Council accepted that it had a duty under section 193 of the Act to ensure that suitable accommodation was available to him and his family for a minimum of 2 years. However, the letter was not sent out; it was left on the file for the Applicant to collect when he attended the HPU following his eviction. I have to say that it was unsatisfactory for the Applicant not to be informed of the Respondent's decision before his eviction, with the result that he was left in a state of uncertainty as to whether he and his family would be provided with accommodation by the Council.

6. Section 195 imposes on a local housing authority a duty, which arose in the circumstances of this case once the Council was satisfied that the Applicant had a priority need and that he was not threatened with homelessness intentionally (which they were on 21 January 2000), to take reasonable steps to secure that accommodation did not cease to be available for his and his family's occupation. However, nothing was in fact done by the HPU to arrange accommodation for the Applicant and his family until the date of their eviction, when, following their eviction, they attended at the HPU with their basic possessions. The HPU then authorised emergency accommodation for them. The only accommodation which could be found for them was bed and breakfast accommodation in Margate. Such accommodation, even if suitably located, is to be regarded as a last resort: see paragraph 21.28 of the statutory guidance given by the Secretary of State under section 182 of the Act.

7. The Applicant refused the accommodation in Margate, and stayed overnight with a friend. He consulted his present solicitors. On 26 January they wrote to the HPU, stating that the Applicant had refused that accommodation because of the travel involved to his and his wife's colleges in Stratford and Forest Gate respectively. The letter stated:

It is of particular importance that (the Applicant and his family) are provided with accommodation in Newham. If accommodation is not provided in Newham or its neighbouring Boroughs they will not be able to continue with their education.

The position is, therefore that's Mr Tshikangu and his family will require accommodation in Newham pursuant to the interim duty under s. 188 of the Housing Act 1996 or alternatively in (should the authority be in a position to discharge its duty outside its boundary pursuant to s. 208 of the Act) the accommodation thereunder provided will have to be in a sufficiently proximate neighbouring Borough to allow Mr Tshikangu and his wife to attend their colleges in Stratford and Forest Gate respectively.

....

We confirm that given the urgency of this matter we would require a response in writing as soon as possible and in any event by 12.00 pm on Thursday the 27th January 2000. If we do not receive a substantive response from you of an offer of suitable accommodation by the above mentioned time and date we will grant our client emergency Legal Aid under our franchised devolved powers to make an urgent application for Judicial Review to include an injunction and costs without further notice to yourselves.

8. The Applicant returned to the Homeless Person's Unit on the 27th January 2000. Again, the Council found nothing for the Applicant in their own Borough. They did find accommodation for him in the London Borough of Haringey. The Applicant's solicitors telephoned the HPU on that date. They were told that a booking was being made at a bed and breakfast hotel in the N15 area, and that that accommodation was all that could be found. No letter was sent by the Respondent to the Applicant's solicitors responding to the letter of 26 January.

9. The Applicant and his family then moved into the Haringey accommodation and lived there from 27 January 2000 until 3 April 2000. No complaint was made by the Applicant's solicitors, or by the Applicant, to the Respondent in respect of the suitability of that accommodation. The Applicant's and his wife's colleges must have been more accessible from Haringey than from Margate. No inquiry was made of the Respondent as to the prospects of more suitable accommodation becoming available. No further letter before action was sent to the Respondent.

10. Nonetheless, on the 4^th February 2000, these proceedings were commenced. Relief was sought in respect of the failure of the Respondent to provide accommodation for the Applicant between the 17th December 1999 and the 26 January 2000; the Respondent's decision on the 26 January 2000 only to secure accommodation for the Applicant outside London; and its decision made on the 27th January 2000 to secure accommodation for him outside its own district. Paragraph 10 of the Grounds was as follows:

On 27^th January 1999 (sic) on returning to the Council offices the Applicant was provided with hotel accommodation in London N15 which is not in the Newham area and is unsuitable and is for an indefinite period.

Paragraphs 3 and 5 of the Applicant's solicitor's witness statement filed in support of his application for judicial review was as follows:

3. Since the 27^th January 2000, the Applicant has been living with his wife and seven month old baby at a Bed and Breakfast Hotel in Tottenham, London N15, where they have been provided with a triple room. The accommodation is obviously unsatisfactory by reason of its distance from Newham where both the Applicant and his wife are enrolled as students at Colleges.

5. In these circumstances and for reasons given in his application, I ask that this Court grants permission to challenge the decision of the Council and require them to look at his temporary re-housing again.

11. The Respondent was not informed of the commencement of these proceedings. So far as the Applicant's solicitors were concerned, there was an embargo on the legal aid certificate limiting work to that done before 17 February 2000; but that does not excuse the failure to inform the Respondent of the proceedings.

12. On 3 April 2000, the Council granted to the Applicant a non-secure tenancy of Council housing owned by it in Stratford in London. It is accepted that that accommodation was and is suitable for him and his family. It is not suggested that the Respondent was or is in any way in breach of any statutory duty in providing that accommodation. In other words, after 3 April 2000, the Applicant had no personal need for judicial intervention.

13. The question whether the Court should determine issues in a case which, as between the parties, has become academic, was referred to in the speech of Lord Slynn in R v Home Secretary, ex p Salem [1999] AC 450, at 457:

My Lords, I accept, as both counsel agree, that in a cause where there is an issue involving a public authority as to a question of public law, your Lordships have a discretion to hear the appeal, even if by the time the appeal reaches the House there is no longer a lis to be decided which will directly affect the rights and obligations of the parties inter se. The decisions in the Sun Life case and Ainsbury v. Millington (and the reference to the latter in rule 42 of the Practice Directions applicable to Civil Appeals (January 1996) of your Lordships' House) must be read accordingly as limited to disputes concerning private law rights between the parties to the case.

The discretion to hear disputes, even in the area of public law, must, however, be exercised with caution and appeals which are academic between the parties should not be heard unless there is a good reason in the public interest for doing so, as for example (but only by way of example) when a discrete point of statutory construction arises which does not involve detailed consideration of facts and where a large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future.

14. The Court was not informed that the Applicant's requirement for suitable housing had been satisfied. The Respondent, being ignorant of the proceedings, was unable to inform the Court of the position. The request to the Court to "require (the Council) to look at (the Applicant's) temporary accommodation again" became unnecessary.

15. On 23 May 2000, on consideration of the documents, which gave a misleading picture of the then accommodation of the Applicant and his need for relief, Elias J granted permission to apply for judicial review.

16. Presumably as a result of the grant of permission, on or about 6 June the Respondent's legal aid was reinstated. I do not know whether the Legal Services Commission were informed that the Applicant's accommodation needs had been satisfied by the Respondent: my impression is that they were not.

17. The Applicant's solicitors served the proceedings on the Respondent by letter dated 5 June 2000. The Respondent's Head of Legal Services responded immediately by letter dated 7 June. The letter stated:

As you are aware, your client has been in temporary accommodation ... since the 3^rd April 2000 when his tenancy was granted.

I would therefore be grateful for full clarification as to what matters you are to pursue and for what end.

18. The Applicant's solicitors did not reply until their letter dated 3 August 2000, in which they stated:

Despite being granted a non-secure tenancy on the 3^rd April 2000, an application for permission for Judicial Review was made by us on behalf of Mr Tshikangu on 4^th February 2000. We are obliged to the Legal Services Commission to preserve our costs wherever possible and will therefore be pursuing this matter.

19. At that stage virtually no costs had been incurred by the Respondent. The significant costs of a full hearing on both sides of the application for judicial review had not been incurred. Furthermore, a moment's thought on the part of the Applicant's solicitor would have led him to realise that permission to continue the proceedings had been granted by Elias J under a misapprehension as to the then facts, so that the continuation of the proceedings should have been regarded as precarious.

20. The Respondent's evidence was served on 29 August 2000. There followed inconclusive correspondence, in which the letter of 21 January 2000 eventually came to light, and to which I need not refer.

21. This case came before me for hearing on 24 January 2001. Mr Matthias, for the Respondent, raised the point that the proceedings had become purposeless. I questioned the failure of the Applicant's solicitors to inform the Court that his accommodation needs had been met before the grant of permission by Elias J. Mr Luba, who appeared on behalf of the Applicant, was not in a position to explain why that had occurred. In response to the question why the proceedings should continue, I was told that, apart from the question of costs, a determination by the Court of the failure of the Respondent to comply with its statutory obligations was important because the alleged failures seen in this case were typical of its conduct in this area. I was told that the evidence for this assertion was the experience of the Applicant's solicitors. There was no such evidence in the witness statement filed on behalf of the Applicant.

22. Because the parties had already incurred the costs of briefing counsel and of the hearing, I heard the case, without prejudice to any order I might make in relation to the failure to inform the Court of the change in the Applicant's accommodation. I directed that the Applicant's solicitor should serve a witness statement explaining what had occurred, and gave leave to the parties to make further submissions in writing. Both the witness statement and those submissions were subsequently received.

23. Having considered the witness statement of Mr Sond, the Applicant's solicitor, I accept that his failure to inform the Court that his client had received suitable accommodation, and had no personal need for judicial intervention, was not deliberate or due to any intention to mislead the Court. However, on any application without notice to the other side, as this application for permission to apply for judicial review was, litigants and their lawyers are under a clear and well-known duty to inform the court of all material facts known to them. That duty does not stop when the proceedings are instituted. It continues until the decision is made by the Court; indeed, it continues after the decision is made without notice, if the applicant discovers that the facts placed before the Court were inaccurate or incomplete, or if there is a material change in circumstances while the proceedings continue without notice to the other side: Commercial Bank of the Near East v A and ors [1989] 2 Lloyd's L Rep 319. In a case such as the present, the fact that the Applicant no longer needed judicial review was highly material. Indeed, it is difficult to conceive of more important information that should have been placed before the Court when the question of permission was considered. The duty to the Court was not complied with in this case, and, as Mr Luba's clear submissions accept, there is no excuse for the failure.

24. Equally, it was important to inform the Defendant that, notwithstanding the provision of accommodation in Haringey, the Applicant was going to seek permission to bring judicial review proceedings. The Applicant's complaint that that accommodation was unsuitable was never communicated to the Defendant. In R v Horsham DC, ex p Wenman [1995] 1 WLR 680, Brooke J said, at 709:

Lawyers acting for a party should not regard it as unnecessary to write a letter before action merely because they believe it to be inevitable that the response will deny their clients' claim. Litigation, which is inordinately expensive and time consuming, should ordinarily be regarded as a weapon of last resort, not of first resort. A fortiori, judicial review proceedings, in which the High Court is invited to supervise the way in which inferior bodies perform duties imposed on them by statute, should not ordinarily be embarked on before the inferior body has received a complaint and been given an opportunity to say whether or not it accepts it, and if it does not, to give its reasons for its stance. How can it be right to embark on such proceedings (other than in quite exceptional emergency circumstances, or when a wealthy client, who has been warned of the costs consequences of proceeding too precipitately, insists on proceeding without a letter before action) without airing one's grievance in writing first and assessing the reasonableness of the answer one receives?

If anything, this statement should be given even greater weight today, after the introduction of the CPR, than in 1995.

25. As Mr Luba recognises, the fact that the local authority may have manifested a "take it or leave it" attitude, as Mr Sond states the Respondent did, is no reason not to write a letter before action. In this case the "take it or leave it" attitude" displayed by the Respondent may have been a reflection of the fact that, as Mr Sond was told at the time, the Haringey accommodation was all that was available. Even if a letter before action was not written, on grounds of urgency (and after 27 January 2000 the position of the Applicant was not one of urgent need) the Defendant should have been informed of the issue of proceedings.

26. If the Respondent had known of these proceedings before the grant of leave, it would have had the opportunity to put before the Court, itself or through the Applicant's solicitors, the up-to-date facts concerning the Applicant's accommodation. It would also have had an opportunity to deal with the complaint administratively, and in any event to inform the Applicant of his prospects of being given more suitable accommodation.

27. In considering what is the appropriate order to make in this case, the costs incurred by both parties are a highly important consideration. Both parties are publicly funded, and public funding for litigation is and should be regarded as a scarce resource. That is all the more appropriate in cases of this kind. It is well known that the financial resources of local housing authorities are stretched. To use them in unnecessary litigation is to reduce further the resources available for housing. In its unreported judgment in Sacupima, decided on 23 November 2000, Latham LJ said, with reference to the London Borough of Newham itself:

The problems that the appellant faces .... are undoubtedly daunting. Mr Williams, the appellant's (the London Borough of Newham's) Homeless Co-ordinator describes in his statements that the homeless crisis is of unparalleled proportions, exacerbated by the large number of asylum seekers with which local authorities like the appellant have to cope. The housing stock in the Borough itself is under huge pressure. Demand far outstrips supply. The appellant operates a basic points system for the ordinary waiting list, on which there will be typically thousands of applicants. .... In the year ending 31st March 1999, the appellant overspent its homeless temporary accommodation budget by £2.5 million, and was expecting to overrun it by an even greater amount to March 2000.

28. The only justifications put forward for the pursuit of the present proceedings were the recovery of costs and the need to establish the unlawfulness of the Respondent's procedures in general. So far as the first is concerned, and it was the only justification mentioned in correspondence, the costs of continuing the proceedings after the grant of leave were disproportionate to the costs already incurred. On the Respondent's side, the costs incurred are some £5,000, all of which post-dated the grant of permission. On the Applicant's side, the costs on a legally-aided basis are about £6,000. I do not have a breakdown of those costs between those incurred before the grant of leave and those incurred afterwards, but a substantial part must have been incurred after the grant of leave. In addition, one should bear in mind the diversion of the internal resources of the Respondent, whose staff have had to prepare their case and their witness statements.

29. So far as the second justification put forward on behalf of the Applicant is concerned, it is not in general appropriate for a litigant or his lawyers to determine unilaterally that a case in which the claimant no longer requires any substantive relief should go forward as, in effect, a test case as to the lawfulness of the defendant's procedures in general. If a case is to go forward on that basis, the claimant should inform the defendant that he wishes the Court to scrutinise the defendant's practices and procedures generally. The parties should consider whether a test case is appropriate, and if so what that case should be; and if they are not agreed, application should be made to the Court for it to consider the matter, before the costs of a substantive hearing are incurred. The parties will consider the practice of the Court, which is helpfully summarised in the above citation from Salem. Furthermore, if a test case is to go forward, it is important that the defendant is aware of this before it serves its evidence, so that it can prepare its evidence accordingly. None of this happened in the present case: as I stated above, the only reason given in correspondence for the continuation of these proceedings was the need to recover the Applicant's costs. The witness statement filed on behalf of the Applicant did not evidence any alleged general failure to comply with the statutory obligations imposed on the Council. So far as the documents disclose, it was only when Mr Luba's skeleton argument was served, presumably in November 2000, when this case was originally expected to be heard, that the Respondent was informed that the Claimant was seeking a declaration that Newham have "systematically failed to discharge their duties to homeless persons".

30. The question arises whether I should discharge the order of Elias J granting permission. Mr Luba has brought to my attention the judgment of Popplewell J in Grazyna Beecham [1996] Imm AR 87, in which he stated that only rarely would the court set aside leave where the misrepresentation to the court had been innocent, and that, if in the light of all the material there was an arguable case, ordinarily leave should not be set aside. With respect to Popplewell J, I think that this statement is unduly restrictive of the discretion of the court in cases of non-disclosure. It is inconsistent with the judgments of the Court of Appeal in Lloyds Bowmaker v Britannia Arrow [1988] 1 WLR 1337, in which the following propositions were approved by Glidewell LJ at 1341:

A party who seeks relief ex parte is under a duty to the court to make the fullest disclosure of all material facts. He must disclose any defence he has reason to anticipate may be advanced. If he does not comply, he will be deprived of the fruits of his order without consideration of the merits and irrespective of whether, had he made such disclosure, he would or would not have obtained the order. It matters not whether the non-disclosure is deliberate or innocent. The court may allow a limited latitude for a slip, but only where the party seeking relief has corrected the error quickly.

Lloyds Bowmaker v Britannia Arrow contains a useful review of the authorities. It was not a judicial review case, but the same basic principle applies to all applications without notice.

31. The power of the court to discharge an order giving permission to proceed, made on an application without notice to the other side, on the ground of non-disclosure, is a disciplinary, indeed penal, jurisdiction. In Brink's Mat v Elcombe [1988] 1 WLR 1350, Slade LJ said, at 1359:

It serves the important purposes of encouraging persons who are making ex parte applications to the court diligently to observe their duty to make full disclosure of all material facts and to deter them from any failure to observe this duty, whether through deliberate lack of candour or innocent lack of due care.

Nevertheless, the nature of the principle, as I see it, is essentially penal and in its application the practical realities of any case before the court cannot be overlooked.

32. If the power were in general only exercised in cases where the claimant has no arguable case, there would cease to be any real sanction against non-disclosure. The sanction must be real, even in cases in which permission would have been given on full disclosure, in order to promote compliance with the duty of full disclosure. In my experience, the discretion of the court in cases of non-disclosure has been at large, with the relevant considerations being the materiality of the information withheld, the reason for non-disclosure, the nature of the case, the relevant conduct of the parties, and the consequences for the parties of the discharge of the order obtained without notice.

33. Mr Luba also submitted that it was unnecessary to discharge the order of Elias J, since the question of costs is in any event within the discretion of the Court. He referred me to the decision of Laws J in R v Liverpool City Council, ex p Filla [1996] COD 1-91. In that case an applicant for judicial review whose claim had become redundant was refused his costs because of his non-disclosure of material facts when leave was obtained. I do not read that case as restricting the discretion of the Court to discharge the order granting leave in appropriate cases.

34. It is right that no formal application has been made by the Defendant for an order discharging leave. However, in an appropriate case the Court may and should discharge the order on its own initiative.

35. In my judgment, if the full facts had been before Elias J he would not have granted permission for the case to go forward. There was no good reason for the failure to inform him of the true position. Furthermore, there was no good reason for the failure to send a further letter before action to the Defendant after they had provided the Haringey accommodation, or of the failure to inform the Defendant of the commencement of proceedings.

36. In these circumstances, I should certainly refuse, in the exercise of my discretion, to make any declaration in this case. Furthermore, in the light of these failures, I do not consider the present a suitable case to investigate the lawfulness of the Defendant's procedures generally. I do not think that it was prepared by the Defendant on this basis: when they served their evidence they had been informed only that they were defending an application for costs. Indeed, the Applicant's evidence was not prepared on this basis either. For these reasons, I have not dealt in this judgment with the details of the case against, and for, the Defendant.

37. However, having regard to the gravity with which I view these failures on the part of the Defendant's solicitor, and the importance of the information that should have been put before the Court, I have decided that the correct course is to discharge the order of Elias J giving permission to apply for judicial review, and that is the order I shall make.

38. I must mention that despite my criticisms of the Applicant's solicitor, Mr Luba's conduct of his client's case has been impeccable. I am grateful to him, and to Mr Matthias, for their clear, cogent and, and the case of Mr Luba, candid submissions.

MR JUSTICE STANLEY BURNTON: My decision in this case has been set out in my judgment which has been distributed in draft.

MR MATHIAS: My Lord, I am very grateful. The minor typographical errors that I discern have all been corrected bar one, which is on the front piece: my name is "ias" on the end.