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
		17th May 2005

1. MR JUSTICE WILKIE: This is an application for judicial review by Mr Hammia against the Mayor and Burgesses of the London Borough of Wandsworth, permission having been granted on 27th January of this year. The decision said to be worthy of judicial review is described in the claim form as being:

"The defendant's policy to apply their allocation scheme under Part 6 of the Housing Act 1996 to assessments of applicants who apply to them as homeless under Part 7 of the Act, requiring any homeless applicant holding an existing secure joint tenancy to relinquish that tenancy as required under their Part 6 policy before they will accept a duty under Part 7 of the Housing Act 1996."

2. The remedies sought are two declarations. The first, declaring that the defendant's policy, requiring joint secure tenants fleeing alleged violence to terminate the joint tenancy by serving a notice to quit before they will accept a duty under Part 7, is unlawful. Second, an order declaring that the notice to quit dated 13th October 2003 is invalid and unenforceable.
3. This application exposes certain potential anomalies and difficulties on the interface between the local authority's obligations under Part 7 of the 1996 Act, Part 6 of the 1996 Act, and the law as to the termination or variation of tenancies to substitute or move tenants under a joint tenancy.
4. The facts can be shortly stated. On 15th October 2001 the Council granted the claimant and Miss Malika, his wife and mother of their three children, a joint tenancy of the property in question. On 5th August 2003, Miss Malika left the property with her three children and presented herself to the Council seeking accommodation as a homeless person fleeing domestic violence. The Homeless Persons Unit then went through their investigation procedures and I have with the papers a full record of how that investigation was conducted. It started on 6th August 2003 and resulted in a conclusion reached on 4th September 2003 which in turn resulted in a decision letter of 30th September 2003.
5. It is worthy of note that throughout that entire period, no opportunity was given to the claimant to be aware of the allegations being made against him of domestic violence or the opportunity to give his account of the matter. This is to be noted not as a matter of criticism, because plainly these are often highly sensitive areas, but simply as a fact, which meant that the conclusions reached at the end of the investigation process were reached without the claimant who, as we will see, was directly affected in the outcome, not having any opportunity to put his side of the matter.
6. It is clear that the Council did not immediately accept that the account being given by Miss Malika was necessarily the truth or the entire truth and, sensibly, there were a number of interviews and investigations which were conducted. However, by 4th September the officer in the Homeless Persons Unit, Marcia Anglin, who was dealing with this particular case, concluded that she accepted that Miss Malika was homeless, in priority need, and not intentionally homeless. As a consequence of that conclusion Miss Anglin wrote the decision letter which has given rise to this application. In so far as it is relevant it reads as follows:

"Further to your application of 4th September 2003 and subsequent enquiries, I write to advise you that you are considered to be unintentionally homeless, an eligible person and in priority need within the meaning of the above mentioned Act. Provided you relinquish your tenancy at 16 Whitgate House, Westbridge Road, SW11 and your other circumstances remain unchanged, this decision that the Council accepts that under section 193(3) . . . it has a duty to secure that accommodation remains available to you. The Council will be subject to this duty until it ceases."

7. The letter then goes on to indicate to Miss Malika that an appointment had been made to enable her to complete an application to be placed on the Council's housing register. Miss Malika kept that appointment on 13th October 2003 and on that occasion she signed a document which is entitled "Tenant's Notice to Quit". It was her document with her name filled in in handwriting (though not apparently Miss Malika's herself) giving the Council notice that she shall quit and deliver up possession of 16 Whitgate House on 10th November 2003.
8. The effect in law of one joint tenant giving notice to quit in respect of the joint tenancy is, it is common ground, to terminate the joint tenancy completely. Therefore, the claimant was in a position where his tenancy expired by virtue of that notice on 10th November 2003. The Council wrote to him, advising him that Miss Malika had served such a notice to quit and inviting him to apply for a discretionary tenancy. The claimant applied for such a discretionary tenancy and on 29th January 2004 his application was initially rejected on a false basis, namely that there were arrears of rent. In fact, those arrears had arisen because of a problem with the payment of housing benefit. Once that problem had been disposed of, the question of the award of a discretionary tenancy to Mr Hammia arose afresh.
9. The Council refused to exercise their discretion in his favour. The reason being put forward was that his joint tenancy had been terminated by Miss Malika following an allegation of domestic violence. As I have indicated, the conclusion to which the Council had come was reached without any reference to Mr Hammia and, in his evidence before this court he denies the truth of those allegations. Be that as it may, the Council, pursuant to the termination of the joint tenancy on 8th March 2004, commenced their claim for possession relying on that tenant's notice.
10. On 14th April the matter came up at Wandsworth County Court and on that occasion an order was made giving possession to the Council in 14 days. The Council then took out a warrant for execution due to be executed on 17th June, and on 10th June the claimant applied to the County Court for the warrant to be set aside and for the order of possession to be set aside. On that occasion the warrant was suspended pending the outcome of an appeal by the claimant against the making of the possession order.
11. Those proceedings in the County Court gave rise to evidence being filed by the Council and, in particular, evidence of Jonathan Radcliffe who is an estate manager and the person who was present when Miss Malika signed the notice to quit form which he had filled out for her. In that witness statement, Mr Radcliffe said the following in paragraphs 6 and 7. In paragraph 6 he said this:

"On or about 6th August 2003 I was contacted by Marcia Anglin who is a case worker in the Homeless Persons Unit that Miss Malika had presented herself as homeless. Given that Miss Malika was a joint tenant of 16 Whitgate House, she would need to relinquish her tenancy there before she could be offered another tenancy. I can confirm that an appointment was made for me to see Miss Malika further to her interview with Marcia Anglin."

Then in paragraph 7 he says this:

"I can confirm that Miss Malika was made aware by the Homeless Persons Unit when she presented herself as homeless that it is the Council's policy that she would be required to relinquish her current tenancy before she could be granted a further tenancy."

12. There was a hearing of the appeal in the County Court on 9th August last and, in the course of that, the Council confirmed that the policy to which Mr Radcliffe was referring at paragraph 7 of his witness statement was a policy which was adopted as an allocation scheme pursuant to section 167(8) of the Housing Act 1996, that being part of Part 6 of the Act. In fact, the policy document produced was a scheme which came into effect, apparently, on 6th October 2003 and so it was not an actual scheme on 30th September when the letter the subject of this application was written. However, it is clear a that it had been approved as a matter of Council policy by the Housing Overview and Scrutiny Committee at its meeting on 25th September 2003 and that it became a scheme only when it was approved subsequently by the executive on 6th October.
13. The full paragraph relied on as representing the Council's policy is paragraph 2.13.7 and it reads as follows:

"Tenancies are created by the prospective tenants signing a tenancy agreement. The tenant will be given a copy of the signed tenancy agreement."

This was as far as that paragraph went until the alteration which became part of the scheme on 6th October. As from 6th October, however, the following passage was added to this paragraph:

"Applicants who, at the time of an offer made under the scheme, hold an existing Council tenancy will be expected to relinquish their interest in that tenancy on acceptance of an offer for a transfer."

It is clear from a document which was annexed to the minute of the Housing Overview and Scrutiny Committee meeting that the change in paragraph 2.13.7 to add that passage simply reflected existing procedure and was added as a matter of clarification. Thus, even though it may not have been formally part of the allocation scheme until 6th October 2003, that statement represented Council policy.

14. When it became apparent that an issue had arisen as to whether the letter of 30th September reflected a Council policy and whether that Council policy was a lawful one, or the letter of 30th September represented an unlawful decision being a deviation from an otherwise lawful policy, the County Court concluded that permission to appeal out of time should be given to the claimant but adjourned the determination of the appeal until the claimant had had the opportunity to canvass the issue of the policy before the Administrative Court. Accordingly, judicial review proceedings were launched and filed with the Administrative Court on 2nd November 2004. It must be noted that this was well over a year after the decision letter of 30th September 2003 but the Council, in my judgment sensibly and properly, has not sought to take any point on undue delay as being a knock-out blow, but rather reserves the question of undue delay to the question of whether discretionary remedy ought to be granted.
15. The question of whether the letter of 30th September represented the policy or was an aberration from it has been very much in issue. It is clear, in my judgment, that the passage in the allocation scheme (paragraph 2.13.7 to which I have referred) does not by its terms apply necessarily to homeless persons. In particular, it does not explicitly do that which the claimant says it does, namely impose an additional obstacle not warranted by the statute before the Council can be satisfied that the duty under section 193 arises. It is, however, clear to me that when Miss Anglin wrote her letter of 30th September, she was attempting to give effect to a Council policy which was to apply, as a matter of practice, what appears in the latter part of 2.13.7 to cases where persons present themselves as homeless but who already have Council tenancies.
16. Mr Radcliffe in his witness statement before the County Court makes clear his understanding that there is a requirement that they relinquish their tenancy before another tenancy can be offered, although it is right to say that in the subsequent paragraph he seems to indicate that that requirement only bites before a further tenancy can be granted. In my judgment, the letter of 30th September does represent what, at the time, was Council policy, albeit not formally enunciated in terms of an allocation scheme.
17. The question which arises is: Was this policy and/or the letter of 30th September purporting to give effect to it an unlawful policy? This turns on the requirements of the Housing Act 1996, Part 7. Section 175 of that Act defines homelessness and threat of homelessness. Subsection (1) provides that the person is homeless if he has no accommodation available for his accommodation in the UK or elsewhere which he is entitled to occupy by virtue of an interest in it, or by virtue of an order of the court. Subsection (3) provides:

"A person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for him to continue to occupy."

18. Section 177 makes provision for whether it is reasonable to continue to occupy accommodation. Subsection (1) reads:

"It is not reasonable for a person to continue to occupy accommodation if it is probable that this will lead to domestic violence against him or against any person who normally resides with him as a member of his family."

Later in that subsection:

"For this purpose domestic violence in relation to a person means violence from a person with whom he is associated, of threats of violence from such a person which are likely to be carried out."

19. The net effect of these provisions is that a person such as Miss Malika who is an existing secure tenant of the Council, and who therefore on the face of it has accommodation available for her occupation, is not to be treated as having accommodation available unless it would be reasonable for her to continue to occupy it. But it is not reasonable for her to continue to occupy that accommodation if it is probable that this will lead to domestic violence against her or a member of the family. In the circumstances in which Miss Malika presented herself to the Homeless Persons Unit, and on the account which that Unit accepted after investigation, Miss Malika was, by that statutory definition, homeless.
20. If the Council was satisfied of the other statutory matters, then under section 193 the duty under Part 7 arose. Those matters are set out in subsection (1) which provides:

"This section applies where the local housing authority are satisfied that an applicant is eligible for assistance and has a priority need and are not satisfied that he became homeless intentionally."

The duty is expressed in subsection (3), namely that the authority are subject to the duty under this section until it ceases by virtue of any of the following provisions in the section. The duty may be discharged by the local housing authority pursuant to section 206(1) in a specific number of ways. That is to say:

"(a) by securing suitable accommodation provided by them is available;

(b) by securing that he obtains suitable accommodation from some other person; or.

(c) by giving him such advice or assistance as will secure that suitable accommodation is available from some other person."

21. It necessarily follows that once the authority is satisfied that the criteria are met, then the duty arises; a duty which can be discharged either by the provision of authority's accommodation or accommodation from some other source made available by the authority, or pursuant to advice or assistance given by the authority. It therefore follows that once the authority is satisfied that these criteria are met, it would be unlawful for them to impose any further hurdle or proviso before accepting that the duty arises.
22. In my judgment, the letter of 30th September is abundantly clear in its meaning and effect. It begins by a statement that the authority is satisfied that the statutory criteria have been met. It would therefore follow that the duty arose without more. The letter, however, goes on to say that the authority accepts that it has a duty, but only provided that the applicant relinquishes her tenancy at 16 Whitgate House, Westbridge Road, SW11. In my judgment, that is plainly the imposition of a further requirement over and above the statutory requirements. As I have indicated, I am satisfied that Miss Anglin was not off on a frolic of her own. She was writing at a time when this particular requirement was becoming an explicit part of the Council's allocation scheme. Therefore, in my judgment, what she wrote was pursuant to a policy which applied not only to those seeking transfers, but also to those who had presented as homeless, and in respect of whom a duty under section 193 had arisen. In my judgment, therefore, the decision letter was unlawful and was the manifestation of an unlawful policy.
23. Of course, the Council was, as is acknowledged by Mr Colville, perfectly entitled to have, as part of its Part 6 allocation scheme, a paragraph such as 2.13.7 which provides that where an existing Council tenant applies for a transfer to other Council accommodation, and before that Council accommodation is accepted by that tenant, it is only sensible for them first to have given up their interest in their existing Council tenancy. Otherwise they would be in the position of holding two Council tenancies at the same time. That would potentially be a waste of scarce public resources administered by the Council and it would also give rise to difficulties in respect of the ability of the person to meet the rental requirements where they were required to gain public assistance in the form of housing benefit.
24. The problem for the Council is that what was, and is, a perfectly sensible and lawful policy which might well apply at the stage at which the Council, having accepted a duty under section 193, was minded to discharge it in one of the three ways envisaged under 206 (namely by providing its own accommodation to that homeless person) becomes an unlawful additional requirement when it is imposed as a requirement before the duty is accepted in the first place. It may be a matter of timing, it may be a matter of the precise sequence of events, but, in my judgment, undoubtedly by getting that sequence of events wrong and as a matter of policy doing so, the Council has adopted an unlawful policy which has given rise to an unlawful decision on 30th September.
25. Mr Colville seeks to argue that he is entitled to declarations in the forms sought in the claim form. In my judgment, he is entitled to the order in the form of a declaration which is at paragraph 1. For the purpose of elucidation, however, and subject to anything Mr Colville might wish to say, I would have thought that it would be best to clarify what the policy was by referring to the policy as giving effect to in the letter of 30th September 2003.
26. The second declaration which he seeks, however, is an order declaring that the notice to quit dated 13th October 2003 is invalid and unenforceable. In my judgment, that does not necessarily flow. The policy which was unlawful was a policy which affected the acceptance by the Council of its section 193 duty. It in fact, as events turned out, did accept that full section 193 duty because a document was signed by Miss Malika which was what the policy required her to sign.
27. There are a number of arguments which Mr Colville, on behalf of Mr Hammia, seeks to advance on why that document was invalid and unenforceable. He says it was obtained by oppression and there are issues as to whether Miss Malika knew what she was doing, whether there were appropriate interpreter facilities available to her, whether the letter of 30th September misled her as to what was required on the next occasion, whether she had independent advice available, and so on. In my judgment, these are matters which are all essentially private law matters and are matters with which the County Court is best equipped to deal, albeit with the assistance that this court can give it in terms of the background to that particular issue formed by the conclusion to which I have come and the declaration which I accept is necessary in order that the County Court may be truly appraised of the outcome of this hearing.
28. It therefore follows that Mr Colville has not persuaded me that he is entitled to the declaration sought under paragraph 2 nor, it is clear, has Mr Clarke persuaded me that this is the kind of case where no declaratory relief should be granted as a matter of discretion. This is a matter of some significance to Mr Hammia and, in particular, it may be of assistance to the County Court to have a declaration given to the court as part of its knowledge before it embarks upon the question of whether the order for possession should be set aside.
29. Before leaving this subject, Mr Colville has sought to argue that there must be some way in which Miss Malika could have removed herself from the tenancy and given up her interest as a tenant without having brought the joint tenancy to an end. He points out, as is plainly the case, that by adopting this kind of approach -- an approach which, as I have indicated, would have been open to the Council had they gone about it in the right sequence of events -- in effect, Mr Hammia can have his tenancy terminated in circumstances in which he has never had the opportunity to contradict, or to test, the very serious allegations of fact on the basis of which the decision was taken which resulted in the tenancy coming to an end. The Council does have the power to seek possession from one of its tenants in circumstances in which another tenant has had to flee on the grounds of domestic violence and it would be reasonable for the court to grant possession. But the Council, by virtue of the fact that Miss Malika had given a tenant's notice to quit, is immune from having to go through the discipline of that process and has been able, in the proceedings before the County Court, simply to rely upon the notice to quit given by one of the joint tenants.
30. That is a consequence of the law concerning joint tenancies. It is to be observed that it was one of the matters which formed the subject of a report by the Law Commission (No 284) on renting homes, in the course of which it pointed out what it considered to be the unsatisfactory nature of the law in this respect, and put forward recommendations for arrangements to be put in place whereby a tenant who was one of a number of joint tenants could, by the agreement of all concerned, cease to be a tenant without necessarily bringing the entire tenancy to an end.
31. However meritorious those suggestions may be -- and Mr Clarke for the Council has indicated that they might be problematic as far as local authorities are concerned -- these matters are not presently the law and therefore Mr Colville's interesting submissions effectively go nowhere on this point. However, he has succeeded in persuading me that he is entitled to the first declaration that he seeks, and that is the order that I make.
32. Subject, Mr Colville, to any comment you may make, the suggestion --
33. MR COLVILLE: My Lord, I have no difficulty with your Lordship inserting the policy that was applied. My Lord, the declaration, in light of your Lordship's judgment, should also go on to say that the decision letter of 30th September was unlawful as it --
34. MR JUSTICE WILKIE: The defendant's policy is evidenced by the letter of 30th September 2003 and the decision evidenced by that letter.
35. MR COLVILLE: My Lord, yes.
36. MR JUSTICE WILKIE: Mr Clarke, do you have anything to say?
37. MR CLARKE: My Lord, I rather liked the way you put it first, that the decision requiring the imposition or requiring notice to quit to be served. My concern is this, my Lord. This lady has been offered a duty that has been accepted. It would be unfortunate if that were to be quashed at the same time.
38. MR JUSTICE WILKIE: Nothing has been quashed. I am simply identifying, so that one knows what it is, that it is the policy as evidenced by that letter and the decision evidenced by that letter. I think both of them are -- or would you rather that the decision was not?
39. MR CLARKE: I would rather that the decision was not.
40. MR JUSTICE WILKIE: Mr Colville, do you require the decision to be in there as well?
41. MR COLVILLE: My Lord, yes. One has to tie the two together. It was the policy that led the decision-maker to make the decision which was then relied upon and used. For the purposes of the County Court, it was necessary for the decision letter to be --
42. MR JUSTICE WILKIE: Mr Clarke, I think both the policy and the decision pursuant to the policy ought to be the subject of the declaration, but I make it clear that nothing in the fact that there has been a declaration affects the standing of the decision. It has not been quashed.
43. MR CLARKE: Perhaps we can agree a form of words.
44. MR COLVILLE: My Lord, as far as my learned friend's fear that in making the declaration my Lord will unravel Miss Malika's tenancy, the authority have accepted that there is a tenancy. They have granted her tenancy.
45. MR JUSTICE WILKIE: I think she has now moved again, has she not?
46. MR COLVILLE: She has.
47. MR CLARKE: She moved in December 2003.
48. MR COLVILLE: Given that that is the case, it cannot be said that she obtained the tenancy through unlawful means.
49. MR JUSTICE WILKIE: No doubt the transcript will be available.
50. MR COLVILLE: My learned friend's fears do not come home, because Miss Malika's position, I would say, is protected.
51. MR JUSTICE WILKIE: If you can put your heads together and produce a formulation which reflects both the policy evidenced by 30th September and the decision evidenced by that letter then I am happy to grant an order in those terms. Is there anything else?
52. MR COLVILLE: My Lord, costs. I would ask for an order that the defendant pay the claimant's costs in this matter.
53. MR CLARKE: My Lord, I would seek to persuade you that the appropriate order in this case is no order for costs. I accept that the local authority, on the basis of your judgment, were the instigation of this issue in that you have said that the wording of the letter of 30th September was wrong and it was a reflection of an unlawful policy.
54. MR JUSTICE WILKIE: Yes.
55. MR CLARKE: My Lord, if it was Miss Malika coming to this court making this application then I would not be resisting the application at all. I accept also that Mr Hammia has some interest in taking these proceedings. Having accepted all of that, what Mr Hammia really came to court for today, making this application for judicial review on adjournment of the possession proceedings, was to challenge the notice to quit, and also through his skeleton to challenge the possession order itself. On that basis he has not succeeded.
56. There have also been subsidiary issues on the question of whether the Council could have followed an alternative course in severing the tenancy which you have not acceded to. But principally the substantive part, the meat of what this is about, is the notice to quit which I would say we have succeeded on in satisfying you that it is not an appropriate matter for this court.
57. MR JUSTICE WILKIE: Mr Colville, the point is well made. You have succeeded to some extent, but not entirely, with what you sought to argue. There might be some apportionment.
58. MR COLVILLE: My Lord, as far as what was sought, clearly there was declaration in respect of the policy. Notice to quit arises from the policy, and the fact that your Lordship has found it was unlawful and that the decision letter is unlawful because it was evidence of the application of the unlawful policy, it follows then, my Lord I take the point, the argument is not: is the notice to quit valid or not. This was a tenant notice to quit as opposed to an authority notice to quit.
59. MR JUSTICE WILKIE: Is this matter where there has been public funding?
60. MR COLVILLE: Yes. The claimant is publicly funded.
61. MR JUSTICE WILKIE: It is a question of to what extent Wandsworth Council should stump up.
62. MR COLVILLE: The Commission are entitled to an order for costs where the claim has been successfully brought. The CPR normal presumption is that the winning party succeeds in getting --
63. MR JUSTICE WILKIE: I do not think that is any more than our rule.
64. MR COLVILLE: My Lord, given that the claimant has been successful, they are entitled to an order for costs. I hear my learned friend's submission that costs should be apportioned because we have not succeeded as far as the notice to quit is concerned. My Lord, the core thrust of the submission was in respect of the policy, the application of that policy and the effect of that policy. Notice to quit is not a matter on which, in my submission, there should be any apportionment against the claimant.
65. MR JUSTICE WILKIE: The claimant has succeeded in the main part of what he claims but he has not succeeded in respect of what was by no means a minor issue, namely in respect of the notice to quit. That should be reflected in the order for costs. I will make an order that the defendant pay 70 per cent of the claimant's costs. Is there any other order that you require?
66. MR COLVILLE: My Lord, detailed assessment of the claimant's costs for public funding purposes. My Lord, as far as the public declaration is concerned, is your Lordship happy for that to be dealt with outside court and to be submitted to this court tomorrow morning?
67. MR JUSTICE WILKIE: That is excellent, yes. You do not have to come and do it. It will be done through the usual channels.