England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		10th October 2003

Friday, 10th October 2003
1. MR JUSTICE MAURICE KAY: Mrs Linda Bilverstone has a tragic personal history. Until her divorce in March 1988 she had been married for many years. However in the later years of the marriage she was subjected to domestic violence. It seems to have escalated in 1994 and 1995. On 27th August 1996 she became the tenant of 51 Warburg Crescent, Blackbird Leys, Oxford, which she rented from Oxford City Council. There was a particularly serious incident of violence in October 1997 which resulted in Mrs Bilverstone moving to accommodation in a different area of Oxford. However her husband discovered her whereabouts and before long she moved back to Warburg Crescent. In addition to the unwanted attentions of her husband she was subjected to violence by others in the Blackbird Leys area. She also has an adult son and daughter who are heroin addicts and who caused her severe problems at Warburg Crescent. There is a statement before me from a police officer, dated 23 December 1999, explaining why it was not safe for her to live at Blackbird Leys. By that time she had herself started to use heroin although she has more recently taken constructive steps to rid herself of addiction.
2. On 21 November 2001 she was convicted of theft and spent 3 weeks in prison. Following her release she never returned to live at Warburg Crescent. Initially she resided in a bail hostel and thereafter in a night shelter. Inevitably, she was no longer paying her rent in relation to Warburg Crescent and substantial arrears accrued.
3. On 17th April 2002 Mrs Bilverstone approached Oxford City Council to request a housing transfer. The initial response to her request was that her case could not be submitted to the Exceptional Circumstances Panel (ECP) because she had not provided corroborative evidence in support of her account of the domestic violence while at 51 Warburg Crescent. Indeed, this stance continued after Mrs Bilverstone instructed solicitors in December 2002. In due course Mrs Bilverstone made her first application for permission to apply for judicial review. Her complaint was the failure to refer her case to the ECP. The application for permission was listed for an oral hearing on 14th March 2003, but by consent the hearing was adjourned on the basis that the Council would refer the matter to the ECP.
4. By this time Mrs Bilverstone's solicitors were seeking to fight her battle on two fronts. In addition to pursuing the request for a transfer they had made an application on 3rd December 2002 on the basis that Mrs Bilverstone was homeless within the meaning of Part VII of the Housing Act 1996. On 9th December 2002 the Council replied referring to its policy in relation to domestic violence and the way in which an existing tenant could apply to the ECP which has a discretion to award "an 'urgent' category to a case which can mean a tenant is rehoused in a matter of weeks rather than years." It explained:

"The purpose of this approach is to ensure that existing secure tenants do not have to go through the homelessness route and spend years in temporary accommodation simply to obtain another secure tenancy. However this is still subject to objective, corroborative (normally third party) evidence of violence being submitted to the ECP. In the absence of such evidence the panel will not award an urgent move as a Transfer case of an existing tenant."

The letter went on to confirm that:

"Any secure tenant is also entitled to present as homeless under Part VII of the Housing Act 1996 if they believe their accommodation is unreasonable to continue to occupy..."

5. Thus, the two procedures were in play but:

"Mrs Bilverstone should be made aware she will need to give up her tenancy should she be accepted as homeless and in doing so she could forego the possibility of other options to move such as a mutual exchange with another tenant. She also needs to make an informed decision since the average wait in temporary accommodation on acceptance as homeless is in the region of 4 years currently. This average time is likely to lengthen as the homelessness crisis grows. Consequently if Mrs Bilverstone would prefer that I present the evidence to the ECP and chooses not to go through the homelessness route then please confirm this in writing. Otherwise I anticipate that the Homelessness office will assess her circumstances."

6. In the event Mrs Bilverstone did not withdraw the application under Part VII of the 1996 Act and by letter dated 13th December 2002 her solicitors confirmed their request that her case be put forward before the ECP. There was further correspondence in which the Council was raising the need for corroborative evidence, but in truth it had already been supplied with ample evidence to substantiate the domestic violence history.
7. On 13th January 2003, before any decision had been taken in relation to either application, the Council served Mrs Bilverstone with a notice to quit Warburg Crescent, such notice expiring on 17th February 2003. Clearly the Council was aware that Mrs Bilverstone had not been living in Warburg Crescent for a long time, the house was uninhabited and rent arrears were accumulating. Understandably, they were anxious to secure the return of the house to their housing stock with a view to re-letting to another tenant. On 13th February 2003 the Council determined the homeless application adversely to Mrs Bilverstone on the grounds that it was not satisfied that she was homeless or threatened with homelessness. It referred to an absence of, "supporting third party evidence that... you would be in danger if you returned... 51 Warburg Crescent."
8. On 14th February Mrs Bilverstone's solicitors sought a review of that decision. By a letter dated 12th March 2003 the Council communicated a review decision to the effect that Mrs Bilverstone was unintentionally homeless and in priority need. It stated that she would be transferred to suitable temporary accommodation in fulfilment of the Council's statutory duties as soon as possible, and advised that she "must therefore relinquish the tenancy of 51 Warburg Crescent forthwith, not least because she remains liable for rent payments on the property."
9. The homelessness decision accepted the history of serious domestic violence and, whilst Mr Bilverstone was no longer resident in the area, the decision maker also accepted the risk of continuing violence from associates still living on the Blackbird Leys Estate. Accordingly she had succeeded in the homelessness application.
10. The next day, 13th March, the ECP met to consider the referral that had been agreed in the consent order which had effectively brought an end to the previous judicial review application. Its decision was communicated in a letter dated 17th March. It is that decision which is the subject of the present proceedings and accordingly I set it out at some length:

"On considering the case the ECP took account of the fact that Mrs Bilverstone had been accepted as statutorily homeless on 12th March. Although the Council's Domestic Violence policy allows for existing secure tenants of the authority to be referred to the ECP this does not, and cannot, preclude tenants from exercising their right to present as homeless. However pursuing the Homeless route where this results in acceptance as statutorily homeless precludes the applicant from prioritisation through the Transfer Scheme bearing in mind that even an award of urgent priority can still result in a wait of many months sometimes stretching into years on the Transfer register. As a result the ECP reached the following decision:-

1. It was inappropriate to consider Mrs Bilverstone as an on-going Transfer register case. She will have to give up her tenancy by virtue of the Council's policies and the Homelessness legislation. In addition she is arguably not a 'secure' tenant of the Council within the meaning of the 1985 Housing Act.

2. Acceptance as homeless has provided a satisfactory resolution to her housing problems. She will be provided with self-contained suitable accommodation in fulfilment of the Council's Homelessness duty.

3. It would not have been appropriate to award any priority since her circumstances are no longer exceptional in terms of the Transfer Points Scheme. Being accepted as homeless is not 'exceptional' and is a suitable remedy for a person's housing problems.

4. The Homelessness route is an alternative to the ECP route and is certainly not an 'inferior' solution albeit that it involves a wait for permanent rehousing. Temporary second stage accommodation provided in fulfilment of the Council's Homelessness duty is mostly of a higher standard than the Council's own stock.

In reaching this decision the panel also noted Mrs Bilverstone had made an informed decision and chose to pursue the Homelessness route, which proved successful."

11. Of course Mrs Bilverstone does not dispute the homelessness decision in her favour, although she is critical of the accommodation provided in pursuance of it. Her complaint is that such a favourable decision did not preclude her from prioritisation through the transfer scheme and that the ECP erred in its decision to that effect.
12. It is unnecessary for me to set out the well-known provisions of Part VII of the Housing Act. Part VI deals with the allocation of Council housing. As there is invariably an excessive demand over supply, section 167(1) requires every local housing authority to have an allocation scheme for determining priorities. Section 167(2) requires the scheme to be framed so as to secure that reasonable preference is given to, among others, people who are homeless within the meaning of Part VII, and people who need to move on medical or welfare grounds.
13. In R v Islington London Borough Council ex parte B [1998] 30 H.L.R. 706, Mr George Bartlett QC, sitting as a Deputy High Court Judge, held that the predecessors of Parts VI and VII in the 1985 Act (page 170):

"... are not to be regarded as separate territories and I accept... that there is no reason why a [local] authority should not deal with an application for housing accommodation... under [both parts]."

14. The terms of reference of the ECP state:

"Although the panel awards points which are then embraced within the Points Scheme, the Panel deal with exceptional circumstances only which are not covered directly by the other elements of the Points Scheme".

15. The case for Oxford City Council is that although it wrongly failed to refer Mrs Bilverstone's case at an earlier stage, when it did so she did not come within the category of "exceptional circumstances only which are not covered directly by the other elements of the Points Scheme," primarily because she was now the recipient of a favourable decision under Part VII. She had been put to her election as between the two procedures and had made an informed decision to pursue her Part VII application to a successful conclusion. Moreover she was no longer a tenant in view of the expiration of the notice to quit, and she was certainly no longer a secure tenant because she was no longer occupying Warburg Crescent as her only or principal home (See Housing Act 1985, section 81), having long since, and for good reason, abandoned any intention to live there again.
16. I am bound to say that I find these arguments extremely unattractive. Whether or not she remained a secure tenant within the meaning of section 81 seems to me to be irrelevant. Nor, in my judgment, did the notice to quit operate so as to deprive her of the right to have the referral to the ECP properly considered. Indeed, if the ECP had considered the case at an earlier stage, as it should have done, the notice to quit could not have been a factor, and it would be iniquitous if the Council's own earlier errors were now to operate against Mrs Bilverstone.
17. In the end the crucial issue in this case is whether the fact that the favourable decision under Part VII had been taken before the ECP considered the case meant that the ECP was, "precluded from assisting Mrs Bilverstone." In my judgment it did not, and it was erroneous of the ECP to conclude that it did. It was also erroneous to take and communicate the view that Mrs Bilverstone had somehow been put to her election. I find no support for that in the legislation, in ex parte B, or anywhere else. The fact that different organs of the Council deal with Part VI and Part VII applications is immaterial, as the two are not "separate territories".
18. I do not need to find that the Council rather deviously procured the Part VII decision just before the meeting of the ECP. I am content to treat that as purely adventitious. What the Council was not entitled to do was to treat the former as pre-empting the latter. I am entirely satisfied that the decision of the ECP was unlawful. I shall quash it and it will now be necessary for the ECP to give lawful consideration to Mrs Bilverstone's case. The practical significance is that whilst she is already on the waiting list for another Council tenancy, a favourable decision from the ECP would increase her priority. She is presently no more than a licensee of a single room with shared facilities in Part VII accommodation.
19. MISS ROUGHT-BROOKS: My Lord, I am grateful. In those circumstances I would make an application for costs for the City Council. I understand in relation to previous proceedings in which a consent order was (inaudible) the costs in that were reserved in view of the fact that proceedings may continue. Therefore it is the costs for this application and the previous application that I ask for.
20. MR JUSTICE MAURICE KAY: I was under the impression that a point had been reached where the previous application was brought to an end. I only base that on a note I saw from the Administrative Court office rather than from any --
21. MISS ROUGHT-BROOKS: Unfortunately, looking back on the consent order at page 56 in the bundle, it does not appear that costs in that matter have been dealt with. It is at page F56, and at point 6. It is not a signed copy, and I am not sure the court has one that is different to that, but the copy that I have at page 56 says, "Costs to be reserved." I believe that was on the basis that Oxford were not willing to pay costs.
22. MR JUSTICE MAURICE KAY: I have the signed and sealed copy, or at least a copy of it. It still did say costs to be reserved, but I think the significance is that that consent order did not in itself bring an end to the proceedings because, apart from reserving costs, the permission application was adjourned. Just let me find this other document that I have seen at some stage: that was sealed on 2nd April. I have a note from the court saying that on 9th May CO/1280/03 was withdrawn by consent. In other words, it lived on after the consent order, but was withdrawn by consent on 9th May.
23. MISS ROUGHT-BROOKS: I think what happened was there was a bit of confusion following this, and what I advised my solicitors was to ask for leave for permission to amend this document in the event that the decision went against. Oxford solicitors would not agree to have that paragraph in the consent order, and what my suggestion to my solicitors would be was that we would come before the court and ask for a permission to amend, so it would not be a wholly new application. As it happened my solicitors simply issued a new application rather than going through the process of asking for permission. So it does not appear that costs on that have been dealt with at all.
24. MR JUSTICE MAURICE KAY: No, it does not, but if it is correct that the proceedings were withdrawn on 9th May it is no longer open for me to do anything about those earlier proceedings. I will tell you what the note says, it refers to the fact that rather than amend or restoring the matter you issued fresh proceedings and you sought an order that the first application, which has been restored for hearing on 9th May, be withdrawn and this application be heard in its place. It then says:

"On 30th April 2003 Maurice Kay J directed that this matter [that is the new matter] be listed on 9th May, and that [the earlier matter] remain listed to be disposed of by consent at the same time. On 9th May [the earlier matter] was withdrawn by consent."

25. So if that is an accurate note of what happened on 9th May, and I do not have -- unless somebody can point to it -- I do not think I have a copy of any order made on 9th May, it sounds as though the earlier proceedings are no longer extant.
26. MISS ROUGHT-BROOKS: My Lord, I would still ask for the costs for the entirety of these proceedings because, of course, a large part of what we have been dealing with in this matter has dealt with events prior to the decision of 17th March.
27. MR JUSTICE MAURICE KAY: Well, that may be, but if the proceedings are dead -- let me see if the associate has a copy of the order of 9th May in CO/1280/03? No. Well, I am not going to make any order about that.
28. If on further research you find an order of 9th May suggesting that those earlier proceedings are still in being I will invite written submissions from you both and I will give a ruling on the costs of those earlier proceedings pursuant to those written submissions, but at the moment I think that one is rather off the agenda. So far as the latest proceedings are concerned well then, subject to what Miss Bretherton says, I would have thought you would get your costs.
29. MISS BRETHERTON: There is nothing I can say.
30. MR JUSTICE MAURICE KAY: Right. So you will get your costs of the 1626/2003 and you presumably are CLS funded, are you?
31. MISS ROUGHT-BROOKS: We are.
32. MR JUSTICE MAURICE KAY: So you get a direction for the appropriate assessment.
33. Thank you both very much.