QUEEN'S BENCH DIVISION
B e f o r e :
|THE QUEEN on the application of BASHIR BANTAMAGBARI||Claimant|
|CITY OF WESTMINSTER||First Defendant|
|LONDON BOROUGH OF SOUTHWARK||Second Defendant|
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
MR C BRAHAM (instructed by the Director of Legal and Administrative Services, Westminster City Council) appeared on behalf of the First Defendant.
MISS K BRETHERTON (instructed by Southwark Legal (Contract) Services) appeared on behalf of the Second Defendant.
Crown Copyright ©
"This section applies where the local housing authority are satisfied that an applicant is homeless, eligible for assistance and has a priority need, and are not satisfied that he became homeless intentionally."
Where the local authority are satisfied of the matters there referred to, and are not satisfied of the other matter there referred to, a duty to secure housing for the claimant arises. Pursuant to that subsection Southwark was satisfied that the claimant was homeless, was eligible for assistance and had by reason of ill-health a priority need; and it was not satisfied that he had become homeless intentionally.
"If the local housing authority would be subject to the duty under section 193 (accommodation for those with priority need who are not homeless intentionally) but consider that the conditions are met for referral of the case to another local housing authority, they may notify that other authority of their opinion."
In taking the claimant's history it became apparent to Southwark that he had lived in its borough for only about five months. Prior to that he had lived for a short time in Lambeth; prior to that for a rather longer time in Barnet; and prior to that for over three years in Westminster. Southwark concluded that the conditions for referral of the claimant to Westminster, set by section 198(2) of the Act, were met. Its second decision was accordingly to notify Westminster pursuant to that section. Thus on that same day Southwark wrote two letters explaining these decisions. One was written to the claimant. The other was written to Westminster. I need quote only from the latter:
"The above named person presented at this office on 22nd January 2002. The applicant is eligible for assistance, homeless in priority need and not intentionally homeless and have (sic) no local connection with this Authority, by virtue of previous application/residence/family/association/employment. Therefore, I am referring the applicant under Part V11 section 198 of the Housing Act 1996.
The details are as follows: ... "
Apparently enclosed with the letter were certain documents which were enumerated in the text. To one of those I will shortly turn.
"If it is decided that the conditions for referral are met, the notified authority shall secure that accommodation is available for occupation by the applicant until they have considered whether other suitable accommodation is available for his occupation in their district.
If they are satisfied that other suitable accommodation is available for his occupation in their district, section 197(2) applies; and if they are not so satisfied, they are subject to the duty under section 193 (the main housing duty)."
"The reason being is that you have breached clause 5.13 of your tenancy agreement.
5.13 The Tenant shall not do any act or allow any member of his or her household or invited visitor to do any act which causes or is likely to cause a nuisance to other tenants of the co-operative or neighbours or members of their households. The tenant must not assault, harass or threaten tenants or neighbours, of the Co-operative's employees, contractors or agents whilst they are carrying out their job or allow any member of his or her household or invited visitor to do the same."
"I am writing to tell you that I have written to Southwark Council Homeless Person Unit to inform them that I am not accepting the referral they made to us regarding your housing application. The reason I am not accepting your case is because there is information which Southwark has not investigated. This is information which was available to Southwark when you approached them for housing assistance which they have not fully considered."
To Southwark it wrote:
"The above named person was referred under section 198 of the Housing Act 1996 by your HPU to Westminster because of residency. This Local Authority cannot accept this referral as there are a number of material differences in the referral that your LA made and the information received. The reasons we cannot accept this case are as follows.
* The reasons for homelessness on your referral state that Mr Jbari had a bare licence at 16E Peabody Buildings, yet a copy of the Notice to Quit addressed to Mr Bashir Jbari indicates that Mr Jbari was not a bare licensee but a tenant.
* Westminster Housing Co-op informed me, when I was making the routine inquiries about local connection and residency, that he had a tenancy in his own right and it is still available to him.
* The Notice to Quit details reasons, which suggest that there is possibly intentional homelessness.
I have written to Mr Jbari to inform him that Westminster will not be accepting his application, as there is new and existing information that Southwark needs to address."
"I am writing in response to the decision made by yourselves on the 27th May 2002 regarding the referral made on Mr Bachir Jabri's application dated the 22nd of January 2002.
The reason why the referral was made to Westminster Council was because Mr Jbari could not establish a local connection with Southwark Council. He provided documentary evidence of a local connection with London Borough of Barnet as well as Westminster Council. However due to an assault made on him in the Barnet area, there is a risk of violence should he return. The reasonable conclusion is that he be referred to the Westminster Council.
Please note that should Westminster refuse to accept this referral we would pursue legal means to support this discharge of duty by our Council."
"We do not believe that you have completed the inquiries into homelessness and intentional homelessness."
"I refer to my telephone conversation with Mr Hamid Khan of your department. He has informed me that he will brief you in this matter and let you have a copy of my correspondence.
Mr Khan has informed me that he has now retrieved the file relating to the above named applicant. ... In light of the points which I have raised in my correspondence with your Council, Mr Khan has confirmed that there are a number of items which require further investigation by your Council in relation to the homelessness application made by Mr Jbari. Because of this he has informed me that he has invited the applicant back to your council for a further interview.
Mr Khan further confirmed that you will also be withdrawing your previous decision in this matter and carry out further enquiries. I asked Mr Khan whether he intends to outline your council's position in this matter in writing. He stated that you will do so as he will be unavailable for the next 2 weeks.
You will note from my correspondence that the matter has been placed in the warned list for Monday 20 January 2003. If your council intends to withdraw its decision and carry out further enquiries in relation to Mr Jbari's application then I should be grateful if you would confirm this in writing."
"We are not aware of your agreement with Hamid Khan at the Housing Access Unit."
"To Whom It May Concern.
Re: Bashir Jbari.
This letter is to confirm the recent housing history regarding Bashir.
Originally Bashir signed a joint tenancy with Juan Ruiz on the 4th September 2002. However, in reality their relationship had broken down and Bashir was sleeping on the sofa. Juan was also paying the rent. Another tenant in the property was also causing a large amount of problems including acts of violence.
Westminster Housing Co-op eventually housed the other tenant in a separate property but by this time Bashir had left the property because the situation had been intolerable. Recently Juan has signed a new single tenancy for that property.
Therefore I am writing to confirm that Bashir does not have a current tenancy agreement for 16E Peabody Buildings, Southwark Street, London SE1 OTG."
Also in June 2002 Southwark had received a letter from Mr Ruiz dated 5 June 2002, in which he seems to confirm the general thrust of the version of events there set out by the landlord.
"If there is to be a referral, the referring authority must be satisfied of the matters set out in section 67(1) of the Act -- homelessness and priority need -- and also not be satisfied that the homelessness was intentional. Whilst its decision cannot be appealed, that decision cannot found a referral if it is flawed to an extent and in respects which, in appropriate judicial review proceedings, would lead to its being quashed."
"Once enquiries have been completed, there is no provision outside judicial review for the notified authority to challenge the notifying authority's decision that the applicant is eligible, homeless, in priority need and not intentionally homeless. Should the notified authority produce fresh evidence as to the facts of the case it is the notifying authority's duty to reconsider its decision in the light of this new information. The local authority associations' disputes procedure should be used only where there is a disagreement over the existence of a local connection, and not for resolving disagreement on any other matter."
In relation to the apparent exhortation to a notifying authority in the second sentence to reconsider a decision if fresh evidence is produced by the notified authority, Mr Pettit and Miss Bretherton argue that local authorities cannot agree to confer upon themselves or each other a power of review which does not in law exist.
"The defendant, the London Borough of Westminster, be required to determine the application in compliance with Part V11 of the Housing Act 1996."
It is inappropriate to make it any more specific than that. They will have to look at issues that arise under section 200.
"In the circumstances we seek our costs from you. Obviously if you consent to the removal of Southwark as a party now these costs will be kept to a minimum. If you are not prepared to consent to the removal of Southwark as a party to the proceedings, could you please clarify what relief you have claimed against us."
Neither party claims against Southwark. The point is repeated again and again in the correspondence. At page 151 the point is made. It is to be hoped that your judgment with regard to delay and other issues that have been raised today will stop Westminster from attempting to issue judicial review proceedings. The third paragraph down:
"This letter emphasises (reads to the words) strenuously opposed."
There are numerous other letters to this effect. Certainly from the time of the filing of the evidence of Sandra Pass to the present date, I say that it is only appropriate for my clients to have their costs. They have had to attend because they were a party to the proceedings. They have asked Westminster to either tell them what they want from us in the course of the proceedings or to let us step out. I formed the impression that they were not concerned by us remaining a party to the proceedings. It was Westminster who applied for Southwark to be joined. Westminster are in this position through their own fault, through their own misunderstanding of the correct procedures to follow and steps which, had they been taken earlier, may have resulted in a speedy answer. The application that Southwark should pay costs is extraordinary, and that Southwark should have the costs from the date they joined up but, as a second submission, from the date of the statement from Sandra Pass to the present date. It is clear from their arguments as raised today that they were never going to do that. They were waiting for judgment. If that evidence had been filed earlier there would be nothing different. My clients have been subjected to proceedings during which they incurred considerable costs, without any relief being claimed and without Westminster not being joined. I take on the chin firmly that it is unfortunate that Southwark were not more prompt in replying to correspondence. It is a lesson learned. It is to be hoped that such matters will be avoided in the future. After being joined to the proceedings, Southwark have behaved properly and have been shown to be correct in their submissions by your judgment. It is a point my clients have laboured and have been asking to be released for weeks, if not months. These proceedings may have been conducted quicker if they had not been a party. I would ask for my costs.