QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF MS M PAUL-COKER||(CLAIMANT)|
|LONDON BOROUGH OF SOUTHWARK||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
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(Official Shorthand Writers to the Court)
MR D BROATCH (instructed by Southwark Council, Legal Department) appeared on behalf of the DEFENDANT
Crown Copyright ©
"There are good arguable grounds for saying that the claimant is habitually resident in the UK ...
Although the decision to accommodate pending review is a matter of discretion, it is arguable that the defendant has failed to give proper consideration, pursuant to ex p Mohammed, to the combination of the merits of the claimant's case on habitual residence and the consequence of an adverse decision."
"184(1) If the local housing authority have reason to believe that an applicant may be homeless or threatened with homelessness, they shall make such inquiries as are necessary to satisfy themselves-
(a) whether he is eligible for assistance, and
(b) if so, whether any duty, and if so what duty, is owed to him under the following provisions of this Part.
(3) On completing their inquiries the authority shall notify the applicant of their decision and, so far as any issue is decided against his interests, inform him of the reasons for their decision.
(5) A notice under subsection (3) or (4) shall also inform the applicant of his right to request a review of the decision and of the time within which such a request must be made (see section 202).
202(1) An applicant has the right to request a review of-
(a) any decision of a local housing authority as to his eligibility for assistance.
(3) A request for review must be made before the end of the period of 21 days beginning with the day on which he is notified of the authority's decision or such longer period as the authority may in writing allow.
203(1) The Secretary of State may make provision by regulations as to the procedure to be followed in connection with a review under section 202.
Nothing in the following provisions affects the generality of this power.
(3) The authority, or as the case may be either of the authorities, concerned shall notify the applicant of the decision on the review.
(5) In any case they shall inform the applicant of his right to appeal to a county court on a point of law, and of the period within which such an appeal must be made (see section 204).
204(1) If an applicant who has requested a review under section 202-
(a) is dissatisfied with the decision on the review, or
(b) is not notified of the decision on the review within the time prescribed under section 203,
he may appeal to the county court on any point of law arising from the decision or, as the case may be, the original decision."
"185(1) A person is not eligible for assistance under this Part if he is a person from abroad who is ineligible for housing assistance.
(3) The Secretary of State may make provision by regulations as to other descriptions of persons who are to be treated for the purposes of this Part as persons from abroad who are ineligible for housing assistance."
"Description of persons who are to be treated as persons from abroad ineligible for housing assistance.
4(1) The following are descriptions of persons, other than persons who are subject to immigration control, who are to be treated for the purposes of Part 7 of the 1996 Act (homelessness) as persons from abroad who are ineligible for housing assistance -
(a) subject to paragraphs (2) and (3), a person who is not habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland;
A person shall not be treated as habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland for the purposes of paragraph (1)(a) if he does not have a right to reside in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland."
"(1) If the local housing authority have reason to believe that an applicant may be homeless, eligible for assistance and have a priority need, they shall secure that accommodation is available for his occupation pending a decision as to the duty (if any) owed to him under the following provisions of this Part.
(3) The duty ceases when the authority's decision is notified to the applicant, even if the applicant requests a review of the decision (see section 202). The authority may continue to secure that accommodation is available for the applicant's occupation pending a decision on a review."
"204A(1) This section applies where an applicant has the right to appeal to the county court against a local authority's decision on review.
(4) On an appeal under this section the court-
(a) may order the authority to secure that accommodation is available for the applicant's occupation until the determination of the appeal (or such earlier time as the court may specify)."
"... it is not, in my opinion, appropriate that the remedy of judicial review, which is a discretionary remedy, should be made use of to monitor the actions of local authorities under the Act save in the exceptional case. The ground upon which the courts will review the exercise of an administrative discretion is abuse of power - eg bad faith, a mistake in construing the limits of the power, a procedural irregularity, or unreasonableness in the Wednesbury sense - unreasonableness verging on an absurdity: see the speech of Lord Scarman in R v Secretary of State for the Environment, Ex parte Nottinghamshire County Council  AC 240, 247-248. Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely."
Understandably, on behalf of the defendants in this case, Mr Broatch stressed the importance of the limited nature of this jurisdiction.
"15. Prior to the introduction of the Housing Act 1996, homelessness complaints against housing decisions were made directly to the High Court by way of judicial review against the relevant housing officer's decision. The application, most commonly brought on intentionality or suitability grounds, was invariably accompanied by an application for an interim injunction requiring the authority to provide accommodation pending the full judicial review.
16. The approach adopted by the High Court in considering whether to grant an interim mandatory injunction was set out by the Court of Appeal in De Falco v Crawley Borough Council  QB 460: an interim mandatory injunction requiring a local authority to perform their statutory duty would not be granted unless the applicant could show at least a 'strong prima facie case': per Lord Denning MR, at p 478, and Bridge LJ, at p 481. The court expressly disapproved of the application of the American Cyanamid balance of convenience test in such cases. This was in line with the settled law that a different and higher standard is required for a mandatory than a prohibitionary injunction: see Morris v Redland Bricks Ltd  AC 652.
17. Part VII of the Housing Act 1996 introduced into the homelessness legislation a new scheme of internal reviews followed by a right to a county court appeal on a question of law arising out of that decision, and in so doing relieved the increasing volume of applications to the Crown Office. Materially it provided, by section 188(3), that the duty to provide accommodation whilst inquiries were made as to whether a full duty was owed ceased when the decision was made. Thereafter there was a mere power to secure accommodation for the applicant. Likewise, under section 204(4), there was a further power, not a duty, to accommodate after a review but pending a county court appeal.
18. It is important to note that the de Falco test was in the event more stringent than the American Cyanamid test and that the test would become more stringent still were the applicant to be seeking to enforce the exercise of a power, as opposed to a duty."
"As the court in Ali made clear, and as is clear from its wording, the council have a discretion as to whether or not to house an appellant in circumstances such as those in which the applicant finds himself. Any court, invited to judicially review such a decision, will only do so on well established grounds. Helpful guidance as to what councils making such decisions should consider was given by Latham J in the case of R v Camden London Borough Council ex parte Mohammed 30 HLR 315. I need only read from the headnote of that case where the learned judge was considering the exercise of a similar discretion which the council has pending review of their decision under the provisions of section 188(3):
'in exercising their discretion the authority have to balance the objective of maintaining fairness between homeless persons in circumstances where they have decided that no duty is owed to the applicant, and proper consideration of the possibility that the applicant might be right and that to deprive him of accommodation could result in the denial of an entitlement.
(4) ... certain matters will always require consideration, although other matters may also be relevant:
(a) the ones requiring consideration were the merits of the case and the extent to which it can properly be said that the decision was one which was either contrary to the apparent merits or was one which involved a very fine balance of judgment;
(b) whether consideration is required of new material, information or argument which could have a real effect on the decision under review;
(c) the personal circumstances of the applicant and the consequences of an adverse decision on the exercise of the discretion.'
As I have made clear in the course of this judgment, the provision of temporary accommodation pending appeal (and the same applies pending review) is entirely in the discretion of the council. Where a council, as in this case, has obviously considered the material factors which Latham J identified in his judgment, it is an entirely futile exercise to seek to say that in some way that discretion was wrongly exercised by coming to the High Court for judicial review and saying, as this applicant does, 'We have an arguable case on the appeal to the County Court'. Applications for judicial review on this basis should be strongly discouraged. It is only in a very exceptional case that there will really be any reasonable prospect of interesting the court by way of judicial review to interfere with the exercise of the very broad discretion which the council have, bearing in mind that they exercise it, knowing the circumstances of the applicants, the range and availability of accommodation in their area and the other matters which were identified in the passage I have cited from the case of Ali and Nairne.
For those reasons I would dismiss this renewed application."
"... where the authority appeared to have applied its mind to the correct considerations as set out in Mohammed, the application would be almost bound to fail."
"In considering whether to exercise their power to accommodate pending a decision on a review
housing authorities will need to balance, on the one hand, the objective of maintaining fairness
between homeless persons in circumstances where they have decided that no duty is owed to them
and, on the other, proper consideration of the possibility that the applicant might be right (and the housing authority wrong) and that to deprive the applicant of accommodation could result in the
denial of an entitlement under Part 7. In weighing the balance, there are certain matters that the
housing authority will always need to consider (although other matters may also be relevant):
a) the merits of the case itself and the extent to which it could be said that the decision was either one that appears to be contrary to the merits of the case or one that required a very fine balance of
judgement that could have gone either way;
b) whether any new material, information or argument has been put to the housing authority, which
could have a real effect on the decision under review; and
c) the personal circumstances of the applicant and the consequences to him or her of a decision not
to exercise the discretion to accommodate.
For housing authorities where, generally, only a small proportion of requests for a review are
successful, it may be open to the housing authority to adopt a policy of deciding to exercise the power
to accommodate pending a review only in exceptional circumstances. However, such a policy would
need to be applied flexibly, and each case would need to be considered on the particular facts and
circumstances. In deciding whether there were exceptional reasons in any particular case, the housing authority would need to ensure that account was taken of all material considerations and no account taken of any that were immaterial."
"182(1) In the exercise of their functions relating to homelessness and the prevention of homelessness, the local housing authority or social services authority shall have regard to such guidance as may from time to time be given by the Secretary of State.
(2) The Secretary of State may give guidance either generally or to specified descriptions of authorities."
"... the expression 'habitually resident', as used in Article 3 of the Convention, is nowhere defined. It follows, I think, that the expression is not to be treated as a term of art with a special meaning, but is rather to be understood according to the ordinary and natural meaning of the two words it contains. The second point is that the question whether a person is or is not habitually resident in a specified country is a question of fact to be decided by reference to all the circumstances of any particular case. The third point is that there is a significant difference between a person ceasing to be habitually resident in country A, and his subsequently becoming habitually resident in country B. A person may cease to be habitually resident in country A in a single day if he or she leaves it with the settled intention not to return to it but to take up long-term residence in country B instead. Such a person cannot, however, become habitually resident in country B in a single day. An appreciable period of time and a settled intention will be necessary to enable him or her to become so."
"With the guidance of these cases it seems to me plain that as a matter of ordinary language a person is not habitually resident in any country unless he has taken up residence and lived there for a period. There may be cases where for the purposes of making particular legislation effective (as for founding jurisdiction), it is necessary that a person should be habitually or ordinarily resident in some state at any one time. In other words, there cannot be a gap. Whether that is so does not have to be decided here. It seems to me, however, that whilst of course realising that some people seeking to come here may need immediate financial assistance, it is not necessary to the working of this particular legislation that the ordinary meanings of the word should be set aside in order that there is no gap between habitual residence in one state and habitual residence in another state.
If Parliament had intended that a person seeking to enter the United Kingdom or such a person declaring his intention to settle here is to have Income Support on arrival, it could have said so. It seems to me impossible to accept the argument at one time advanced that a person who has never been here before who says on landing, 'I intend to settle in the United Kingdom' and who is fully believed is automatically a person who is habitually resident here. Nor is it enough to say I am going to live at X or with Y. He must show residence in fact for a period which shows that the residence has become 'habitual' and, as I see it, will or is likely to continue to be habitual.
I do not consider that when he spoke of residence for an appreciable period, Lord Brandon meant more than this. It is a question of fact to be decided on the date where the determination has to be made on the circumstances of each case whether and when that habitual residence had been established. Bringing possessions, doing everything necessary to establish residence before coming, having a right of abode, seeking to bring family, 'durable ties' with the country of residence or intended residence, and many other factors have to be taken into account.
The requisite period is not a fixed period. It may be longer where there are doubts. It may be short (as the House accepted in In re S (A Minor) (Custody: Habitual Residence)  AC 750, my speech at p 763A; and Re F (A Minor) (Child Abduction)  FLR 548, 555, where Butler-Sloss LJ 'A month can be ... an appreciable period of time.')
There may indeed be special cases where the person concerned is not coming here for the first time, but is resuming an habitual residence previously had (Lewis v Lewis  1 WLR 200: Swaddling v Adjudication Officer, (Case C-90/97)  All ER (EC) 217). On such facts the Adjudication Officer may or of course may not be satisfied that the previous habitual residence has been resumed. This position is quite different from that of someone coming to the United Kingdom for the first time."
"What is an appreciable period depends on the circumstances of the particular case. But I agree with the Secretary of State that in the general run of cases the period will lie between one and three months. I would certainly require cogent reasons from a tribunal to support a decision that a significantly longer period was required."
"... I agree with Lord Denning MR that in their natural and ordinary meaning the words mean 'that the person must be habitually and normally resident here, apart from temporary or occasional absences of short or long duration'. The significance of the adverb 'habitually' is that it recalls two necessary features mentioned by Lord Sumner in Lysaght's case, namely residence adopted voluntarily and for settled purposes."
Lord Scarman continued at page 235 as follows:
"Unless, therefore, it can be shown that the statutory framework or the legal context requires a different meaning, I unhesitatingly subscribe to the view that 'ordinarily resident' refers to a man's abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or long duration."
"And there must be a degree of settled purpose. The purpose may be one or there may be several. It may be specific or general. All the law requires is that there is a settled purpose. That is not to say that the propositus intends to stay where he is indefinitely; indeed his purpose while settled, may be for a limited period. Education, business or profession, employment, health, family or merely love of the place spring to mind as common reasons for a choice of regular abode. And there may well be many others. All that is necessary is that the purpose of living where one does has a sufficient degree of continuity to be properly described as settled."
(i) residence must be adopted voluntarily and for settled purposes;
(ii) settled purposes must be part of the regular order of a claimant's life for the time being, whether of short or long duration;
(iii) there is no need for an intention to reside indefinitely;
(vi) all that is necessary is that the purpose of living where one does has a sufficient degree of continuity to be properly described as settled.
"The Council has now reached a decision on your application for housing assistance under the above Act as follows:
• You are homeless as defined in Section 175 of the above Act.
• You are in priority need as defined in section 189(1) of the above Act.
• You are not eligible for assistance as defined in section 185 of the above Act.
The Council has taken into consideration all the evidence and information provided at the time of your interview and the results of the Council's enquiries into your application.
The Homelessness Act 2002 states that a person is eligible for homelessness assistance subject to their being habitually resident in the UK. This applies if they have entered the UK in the last two years. To meet this requirement, you must have been habitually resident in the UK for at least six months prior to your application for housing assistance.
It is the view of this Authority that you are not habitually resident. In reaching this decision we have considered the following facts:
You stated that you have been living in Sierra Leone for the past five years and returned to the UK on 6 April 2005. You also said that you are unemployed and not in receipt of any welfare benefit.
In line with the Homelessness Code of Guidance I have to consider whether you returned to the UK to resume a former period of habitual residence. On the information provided to me I am satisfied that this is not the case. Although you are a British passport holder, you have not resided in the UK for the past ten years. Your main place of residence has been in Sierra Leone.
I have looked at whether you came to the UK to join family or friends. I am satisfied that on the information provided to me you did not come to the UK for this reason.
I have gone on to look at your plans to remain in the UK. You have stated that it is your intention to stay in the UK. It is clear to me that you have made very limited provisions to sort out a move to the UK prior to arriving here. Despite the fact that you are pregnant, you arrived in the UK without making any arrangements either to accommodate or finance your stay here.
The general principles laid down in the Code of Guidance suggest a 'commonsense' approach when looking at habitual residence. I have found, for the reasons outlined above, that you are clearly not habitually resident in the UK. It is clear that you made no plans prior to your arrival here.
Therefore, it is the view of this Authority that you are not eligible for housing assistance, as you are not habitually resident. In line with the provisions of the Housing Act, the Council has no duty to provide you with accommodation."
"I write regarding your request for a review of the Council's decision on your homelessness application. I am the Senior Officer appointed to carry out the review on the basis of facts known to me at the date of review together with the Code of Guidance to the above legislation.
In reaching this decision, I have also taken into account all the information on your homeless file together with written submissions from your legal representative at Hallam Peel & Co.
Having completed by enquiries, I have concluded the following:
- that you are not eligible for housing assistance within the terms of the above legislation.
I must therefore uphold the Council's decision given in the section 184 decision letter of 16 September 2005 and conclude that the Council does not have a duty to house you.
The uncontested facts of your application are that you approached the Council as homeless in September 2005. You stated that you arrived in the UK on 6 April 2005 from Sierra Leone. You stated that you have been living with your uncle at 13 Comus House, London, SE17, but were asked to leave the property due to overcrowding. On 16 September 2005 you were issued with a section 184 decision letter advising you that the Council was of the opinion that you were not habitually resident in the UK and that you were therefore not eligible for housing under the terms of the above legislation.
Your solicitor has made the following statements in relation to this decision:
- They state that you returned to the UK in order to embark on a college course.
- They state that from 1991 until 2000 you lived in the UK and went to school in Peckham, and that in 2000 you returned to Sierra Leone in order to complete your formal education.
- They state that not all of the facts surrounding your situation were taken into account when the original decision was made.
The first issue I have looked into is whether you returned to the UK to resume a former period of habitual residence. On the evidence before me I have concluded that this is not the case. You have stated at interview that you are originally from Sierra Leone and came to live in the UK from 1991 until 2000. You stated that in 2000, your father decided that he would be returning to Sierra Leone to live on a permanent basis. He relocated there and found accommodation for you and him in the private sector. At this time, you were 14 years old and were still a child in the care of your parents. At this stage your parents made a decision to separate and it was decided that you would be living with your father. After you left with your father to go and live in Sierra Leone, your mother stayed in the UK for a short while and then relocated to Spain on a permanent basis. She has re-married and continues to live in Spain. Neither of your parents now live in the UK. Many families travel for periods of time overseas, but you made it clear that your father made a decision to relocate to Sierra Leone on a permanent basis -- he is still living there. As part of the family, you also went there on a permanent basis, attending school. You continued to live there for the rest of your childhood up until April this year. I am satisfied that your decision to return to the UK was not to resume a former period of habitual residence, but was to start a new life for yourself as a young adult."
Pausing there, it is worth noting that Mr Berry made it absolutely clear that it was not any part of the claimant's case in these proceedings that she had returned to the United Kingdom in order to resume a former period of habitual residence. I continue with the quotation from the letter of 25 November:
"I have gone on to establish what arrangements you made for work both prior to coming to the UK and since your arrival. You stated at interview that you made no attempts to find work for yourself in the UK whilst you were still in Sierra Leone. You have stated that you had tried to get work once you arrived in the UK -- you had one job interview lined up but you did not attend the interview as it was in Clapham, which you felt was too far away. You also acknowledged that you were aware that you were pregnant when you came to the UK and so you would have known that your chances of finding employment as your pregnancy developed would become harder for you. Since your arrival in the UK you have stated that you have applied for Job Seekers Allowance twice and for Income Support once. On all three occasions you have stated that you have been rejected for these benefits owing to the fact that you are not considered habitually resident in the UK. You have shown evidence that your last rejection for benefits was on 11 November 2005. I am satisfied that on the evidence available you have not made any realistic attempts to find work either before or since your arrival in the UK and that you have instead sought to rely on the benefit system which has, to date, not made any payments for you.
I have looked at whether you came to the UK to join family or friends. You have stated that you have no family in the UK other than your uncle, and that he has now married and his wife has asked you to leave due to overcrowding. Your father continues to live in Sierra Leone and your mother lives in Spain with her husband. You said that you do not have any brothers and sisters. You said that your plans to stay with your uncle were only temporary until you had sorted somewhere to stay for yourself.
I have gone on to look at your plans to remain in the UK. It is clear to me that you made very limited provisions to sort out a move to the UK prior to arriving here. Despite the fact that you are pregnant, you arrived in the UK without making any arrangement either to accommodate yourself satisfactorily, or finance your stay here. The benefits system exists as a last resort for people who are either unable to work or who are having difficulty in gaining employment. The same is true in applying to the Council as homeless either via Social Services, the Housing Department. Your actions show that you have made no real plans either prior to or since your arrival to secure accommodation or employment other than try to access state benefits and emergency housing.
Your solicitor has stated that the reason you came to the UK was in order to attend college. At interview I asked you what college course you had enrolled for prior to your arrival in the UK. You stated that you did not sort out your college before coming to the UK. I asked you what you had done since arriving in the UK to enrol on a college course. You stated that you had not looked for a college yet, but that you hoped to do this in April next year after you had had your baby. I am not satisfied on the evidence available that it was your true intention to come to the UK to further your academic studies. As a young, single, pregnant woman with a limited support network, I am of the opinion that you would have made far more extensive plans prior to coming to the UK had it been your true intention to study whilst you were here.
I have looked into your length of residence in Sierra Leone. You have confirmed that Sierra Leone has been your principal home for the last five years, and that it was your home from 1986 (when you were born) until you were five years old. It is clear that your family have lived abroad both in the UK and in Spain, but I am satisfied that your principal home has been with your father in Sierra Leone.
I have looked at the issue of where you centre of interest lies. You arrived in the UK a few months ago without knowing anybody who was in a position to give you long term assistance. The arrangement with your uncle broke down after only a few months and you have been asked to leave his home. Having lived in Sierra Leone for the first five years of your life, you returned to live there aged 14 with your father. It would be reasonable to expect you to have acquaintances and a good local knowledge of the community much more so than here in the UK having spent over half your life living there. You stated that you attended schools whilst you lived there and that you had local friends in the area. All of this points to the fact that your centre of interest is clearly in Sierra Leone.
The general principles laid down in the Code of Guidance suggest a 'commonsense' approach when looking at habitual residence. I have found, for the reasons outlined above, that you are clearly not habitually resident in the UK. It is clear that you made very limited plans prior to your arrival here. Your plans since arriving here have been to access state benefits without making any real attempts to find employment or accommodation on your own. You have limited family connections to the UK -- namely an uncle who has assisted you for a short period but has stated that he can no longer do so. Commonsense suggests that while you have a wish to reside here, these actions are not supported by any real plans of long term residence in the UK. In determining where your centre of interest is, I have looked at the two countries and your connections to them objectively, and it is clear that your interest remains in Sierra Leone.
I am satisfied in light of the above that you are therefore not eligible for housing under the terms of the homelessness legislation. This means that the Council does not have a duty to house under the terms of the above legislation. Should you need further assistance, you should consider contacting Social Services who may be able to assist you. To this end you will need to contact your social worker for further advice as to what duties you may be owed under separate legislation."
(i) in order to be eligible "... you must have been habitually resident in the UK for at least 6 months prior to your application for housing assistance";
(ii) the claimant's case was that she had been living in Sierra Leone for the past five years, returning on 6 April 2005, that she was unemployed and not in receipt of welfare benefit;
(iii) it was satisfied on the evidence that the claimant was not returning to resume a period of former habitual residence;
(iv) the claimant is a British passport holder but has not resided in the UK for the past five years;
(v) her main place of residence has been Sierra Leone;
(vi) it was satisfied that the claimant had not come to the UK to join family or friends;
(vii) although the claimant had stated it was her intention to remain in the UK, she had made very limited provision to sort out a move to the UK prior to her moving here, and that notwithstanding that she was pregnant on arrival, she had not made any arrangement to accommodate or finance her stay here;
(viii) the claimant was not eligible for assistance as she was not habitually resident."
"We have been instructed by our above-named client in connection with your negative section 184 decision dated 30 December 2005.
We write on behalf of our client to request a review under section 202 of the Housing Act 1996 (as amended by the Homelessness Act 2002).
We also write to request that you provide our client and his/her family with temporary accommodation pending review.
On 29 December 2005 our client attended at the homeless persons unit. She had just given birth to her daughter, Savannah, on 24 December 2005 and had no accommodation. On that day, she was told that no-one could assist her and she should return on 3 January 2006. She returned to hospital and on 30 December 2005 again applied for assistance. On the same day, without investigation, the homeless persons unit issued to her a letter confirming that whilst she was homeless, in priority need, she was not eligible for assistance because she was not habitually resident in the UK.
Our client was born in Sierra Leone on 10 July 1986. Her mother is English. In 1991 she came to the UK to join her mother. In the mid 1990's her father came to the UK. In 2000 our client's mother moved to Spain and her father decided to return to Sierra Leone. Our client had no choice in this matter; she was 14 and under her parent's authority.
Our client returned to the UK for extended breaks; staying between June and September 2003, June and September 2004, and December 2004 until January 2005. On 6 May 2005 our client returned to the UK as an adult to resume permanent residence.
Ms Paul-Coker considers that her home is the UK. She has lived here during her formative years and has made many friends, with whom she has maintained and continues to maintain contact. A number of her relatives remain in the UK.
In May 2005 our client came to the UK on a single airfare and with all her belongings. She has no intention to return to Sierra Leone in the near future.
Our client is currently staying at a bed and breakfast hotel at 888 old Kent Road, London SE15 1NQ provided by Social Services. This accommodation will end on 18 January 2006.
Grounds for Review Request
The following submissions are based on the evidence currently available to us; we anticipate that we may need to make further representations once we have had sight of our client's file.
We consider that your decision dated 30 December 2005 is flawed for the following reasons:
• You have failed to properly investigate our client's case.
• You have based your decision on incorrect facts; namely that she came to the UK on 6 April 2005.
• You have failed to give any or any adequate reasons for the decision.
• The decision merely reiterates the earlier decision of 16 September 2005.
• You have failed to consider all relevant matters and consider irrelevant matters. In particular, the decision-maker seeks to rely on the refusal of the DWP to grant job-seekers allowance. The decision-maker fails to consider the fact that the applicant came to the UK on a single airfare and with all her belongings.
In the light of the above, we consider that you should withdraw your decision and reach a fresh decision on our client's application. Please confirm whether you will agree to do this."
"Your client has approached this Council as a homeless person and a section 184 decision was issued on 30 December which states that Ms Paul-Coker is not habitually resident in the UK and is therefore not eligible for housing under the terms of the above legislation. Ms Paul-Coker made an application earlier in 2005, and an earlier decision also stated that Ms Paul-Coker was not habitually resident and was therefore not eligible. This decision was upheld on review on 25 November 2005.
The Code of Guidance provides assistance to local authorities when determining whether or not they should exercise their power to accommodate pending review. It advises that Local Authorities should have regard to the merits of the case and the extent to which the decision appears to be contrary to the merits of the case, or where the decision could be made either way. The Local Authority should also consider new information which might affect the decision and also look at the personal circumstances of the applicant.
I have looked through the information available to me on file, together with the information supplied by yourselves relating to Ms Paul-Coker's eligibility."
I pause and interpolate it is noteworthy that, included in the information contained in the file, are the handwritten notes of the two main interviews carried out by the local authority with the claimant. The notes are very cursory in nature and, in my judgment, plainly demonstrate little more than a fairly nominal exercise in enquiring into the circumstances of the claimant.
"Ms Paul-Coker has now resided in the UK for a little longer since the decision made on 30 December 2005. I have also noted that Ms Paul-Coker has now had her baby since the review decision of 25 November 2005. However, aside from this, there is no further evidence to show that Ms Paul-Coker is habitually resident in the UK. I also note that she has been refused access to welfare benefits, and that as a result is reliant on the assistance of Social Services. I am not satisfied that there has been any information made available to the Council either since the review decision of 25 November 2005 or since the section 184 decision on 30 December 2005 that shows that Ms Paul-Coker is likely to be found habitually resident in the UK.
I have balanced this information (in the interests of fairness) with the situation of other homeless families where it has been decided that no duty is owed, and have concluded that the Council will not be providing Ms Paul-Coker with accommodation pending the outcome of her review. Should she be unable to secure accommodation for herself in the private sector, she may consider contacting Social Services to see if they have any ongoing duty to assist her under separate legislation."
"where ... an authority is required to give reasons for its decision, it is required to give reasons which are proper, adequate and intelligible and enable the person affected to know why they have won or lost. That said, the law gives decision-makers a certain latitude in how they express themselves and will recognise that not all those taking decisions will find it easy to express themselves with judicial exactitude."