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 WC2A 2LL
		14 May 2008

1. MR JUSTICE OUSELEY: In these judicial review proceedings, commenced on 10 April 2008, the claimant sought to challenge what was described as the failure of the London Borough of Islington to reach any or any timely decision on the claimant's request for accommodation pending a review of a section 184 Housing Act 1996 decision, made by the authority on 2 April 2008. Interim relief in the form of accommodation was sought, not until the decision on interim accommodation, but until the outcome of the review. In other words, the interim relief sought extended somewhat beyond the final relief sought in the events which happened, namely that there was a decision on the interim accommodation request before the decision on the review. That is the normal sequence in which these decisions are taken.
2. Sir Michael Harrison adjourned the application for interim relief on 11 April to an oral hearing on 15 April. At that hearing the local authority was not represented because they did not receive notice from the claimant or the court of that hearing until the day after the hearing. Nonetheless, at that hearing, Stadlen J granted permission to apply for judicial review and ordered the defendant to provide temporary accommodation for the claimant. Permission was granted notwithstanding that the time for service by the defendant of the acknowledgment of service had not expired, and no order abridging time had been made.
3. The matter comes before me on the Council's application made on 1 May 2008 to discharge the interim injunction, on the basis that on 28 April 2008 the Council had reached a decision on interim accommodation, refusing it pending its review decision. It also seeks to set aside the grant of permission on the grounds that the time for service of an acknowledgment of service had not expired, and the hearing had taken place without the Council in fact being on notice.
4. Turning to the merits of the case as it has evolved before me, I need to set out briefly a little of the background. On 2 April 2008, following a request from the claimant for housing on the grounds that she was homeless or threatened with homelessness, the Council decided that she was homeless, eligible for assistance, but not in priority need. The claimant said she was in priority need because she had living with her a dependant, her sister, who was 18 and a student in the United Kingdom. The claimant and her sister are French nationals.
5. The section 184 decision letter appeared to reject the contention that the sister resided with the claimant, although Miss Cafferkey says that that is not the way it was intended to be written, and it also rejected the suggested dependency by the sister on the claimant. Some reasons are set out. The local authority were threatened the following day with judicial review proceedings because it was not by then appreciated that the section 184 decision had actually been made.
6. On 4 April 2008, the claimant requested a review of the Council's section 184 decision, emphasising that she was the sole carer of her sister in the United Kingdom and was in receipt of child benefit and child tax credit. She also requested emergency accommodation forthwith. On 9 April, judicial review proceedings were threatened if accommodation pending review was not provided. On 10 April proceedings, as I have said, were commenced. On 9 April, the local authority had replied to the claimant's solicitors by fax, saying that the letter requesting temporary accommodation contained no material to support that request by reference to the considerations set out in the case of R v Camden London Borough Council ex parte Mohammed 30 HLR 315. This was followed on 10 April 2008 by a letter from the claimant's solicitors setting out the merits of the case, but in reality doing no more than repeating bits of guidance and law, and containing no point of fact of any significance. So as at the date when the proceedings were issued, there had been a decision refusing interim accommodation. But if not then, certainly by 28 April 2008, there could have been no doubt but that the request was refused in this elaborate letter from the Council, which considered the various factors as required by Mohammed.
7. Taking the proceedings as they stand, and they have not been amended, it is perfectly clear that the claim must fail, for there now is a decision on interim accommodation and the very basis of the claim has ceased to exist. In effect, therefore, the interim injunction must be discharged because there is no remaining claim upon which it could be founded. The application for interim accommodation pending review cannot now be founded in the allegation that the required decision has not been made. Interim accommodation could only have been ordered on the temporary basis it was until the decision in interim accommodation was made. Accordingly, leaving proceedings as they stand, there is no point in doing other than treating these proceedings as being before me for full hearing, as Ms Tueje accepted, and dismissing the proceedings and discharging the injunction, putting an end to this case. There would simply be no point in setting aside the grant of permission because that would leave intact a challenge to an alleged failure by the Council which has already been made good.
8. But in reality, that does not grapple with the essential point now arising. There is in effect a further application before this court, which is the reply of the claimant to the application to discharge the injunction. It is not before this court in a formal way, but it has been before the court in substance. That is, in effect, an amended claim that the decision in relation to interim accommodation pending review contained in the letter of 28 April 2008 is or is arguably unlawful, and so interim relief until the outcome of the review itself should be granted. I note that, following 28 April 2008, no steps were made to amend the proceedings or to seek a continuation of the injunction on the appropriate legal basis.
9. Leaving aside for one moment how the formalities of that are to be dealt with, it is necessary to consider the merits of that discharge application and the response to it. Insofar as Miss Cafferkey suggests that it would be unfair to consider the lawfulness of that letter, it must have been obvious that the merits of that letter would become the subject matter of the claimant's response to the discharge application, and the claimant and defendant can properly be expected to be ready to deal with it.
10. The letter considers carefully the merits of the case to see whether there is a strong prima facie case for the claimant, or indeed a finely balanced case which might go her way on review. The letter comes to a conclusion that all the matters were fairly considered and, without putting it this way, it regards the position that it has arrived at as a perfectly sound one.
11. It is necessary to highlight one or two facts. The claimant lived in the United Kingdom after arrival with friends, and indeed applied for homeless assistance to another authority in September 2007. It is not contended that she by herself could be a person who has any priority need. Her sister arrived in the United Kingdom, it was contended, in January 2007 aged 17. There is uncertainty and an issue over where she lived and upon what basis she sustained herself. Clearly she was not living with her mother, who lives in France, and there is no clear evidence as to any support for her from her sister during that period. At some point, the claimant applied for child benefit and child tax credit from the Revenue, and was granted it with effect from 28 February 2008 on the basis, it is said, that the Revenue had been satisfied that the claimant's sister, now 18, was in full-time education and residing with and dependent upon the claimant.
12. The Council has raised a number of issues under the heading of "merits" in relation to what the actual dependency was, given that the sister has no vulnerabilities in terms of mental or physical health, and from September 2007 through to at least January 2008 was in part-time education only. The letter describes the way in which a person of 18 in full-time education can be a child, but the Homelessness Code of Guidance for local authorities not merely requires actual dependence (although that need not be a complete dependence on that particular person), but it envisages that the dependency, where the relationship is not parent and child, be akin to a parent and child relationship. The letter says that the sister is not in full-time education, although it is accepted before me that it is wrong in that respect, and that from February 2008 until early July, if the course continues, the sister will have been in full-time education.
13. The letter considered whether there was new material following the decision that the claimant was not in priority need, and concluded that there was no material that was new. Personal circumstances were considered, including whether the claimant or her sister had any particular housing needs, and pointed out they would be entitled to housing benefit and can access private rented accommodation. The Council is obviously concerned in the light of that as to whether or not there is in reality dependency on the mother, as one would expect to be the position normally where someone is in full-time education and travels abroad to receive that full-time education.
14. It is not necessary to set out the relevant passages from Mohammed, but I simply identify that what Latham J said on page 321 in relation to the merits of the case, new material, and personal circumstances are not intended to be exhaustive of the relevant considerations, and I add that, in approving what he said, the Court of Appeal added in R v Brighton and Hove Council ex parte Nacion 31 HLR 1095 through Tuckey LJ that arguability of a case on appeal to the county court provided no basis by itself for an application for judicial review, and only in exceptional cases would there be any reasonable prospect of interesting the court by way of judicial review in interfering with the exercise of the very broad discretion which the Council have in deciding whether or not to grant interim accommodation pending review.
15. Ms Tueje, who has been realistic and cogent in her submissions, contends that there are a number of areas where not merely does she have an arguable case so that she may succeed on review, but there have been errors of understanding of a significant order by the Council: these include effectively ignoring the way in which the claimant and her sister have lived together; and the fact that there is no evidence of dependency on the mother. The Council is said in particular to have erred, as is acknowledged, in a fundamental aspect in relation to dependency, which is that from February 2008 onwards the claimant's sister was in full-time not in part-time education. The latter point is not an adequate basis for showing strong prospects of success on review so as to show that the Council' decision is an erroneous exercise of its discretion.
16. A whole host of points of concern are raised by the Council about the dependency here of an 18 year-old who has been, it is said, in the country for a long time now (well over a year) before being in full-time education, and who for that time was not in receipt of support indirectly from child tax credit or child benefit from her elder sister. The concerns about her continued dependency on the mother are very important, as too is the way in which this particular relationship falls clearly outside what the Homelessness Code has in mind as dependency. It could not be asserted that significant new material was provided, either after the decision of 2 April or after the decision of 28 April 2008. Indeed, what the claimant and her sister have actually been doing and the position in relation to the mother, is material which one would expect the claimant to supply in considerable detail. Its absence is bound to lead to real concern as to whether the "dependency" has been more a matter of convenient residence enabling child benefit and child tax credit to be obtained. But what to my mind is plain is that as it is accepted that, taken individually, neither the claimant nor her sister would be able to say that they were in priority need, it is impossible for the two taken together to acquire such a priority need. A child taken by him or herself would have a priority need where a father or mother on her own might not. Here neither by themselves have any priority need, as is conceded. I for my part find real difficulty in seeing how it is going to be contended successfully on review that there is a priority need for them when taken together. However, what that amounts to is this: I see no sound basis for suggesting that the letter of 28 April 2008 is other than a proper response to the request for interim accommodation, or contains an arguable error of law. So therefore ignoring for the moment the means whereby that issue has come to be argued, the injunction even in the fuller form sought, that is accommodation pending review, will be refused or discharged.
17. The question then arises as to the manner in which any such proceedings come before me. It seems to me, in the light of what I have said, that to require formal amendment of any proceedings would be a waste of time. In the light of what I have said, it is difficult to envisage that a further application for interim relief pending review could be made, and in any event what I have said would have to be placed before any judge dealing with a challenge in that respect. I have made clear that I do not consider that the Council's exercise of its discretion is arguably unlawful. It seems to me in those circumstances that the appropriate order would be to treat this hearing as the hearing of the full application for judicial review and to dismiss it, and to discharge the injunction and grant no further relief for the reasons which I have given.
18. MISS CAFFERKEY: My Lord, I make an application for costs, not to be enforced without the usual --
19. MR JUSTICE OUSELEY: You are legally aided, are you?
20. MS TUEJE: That is correct, yes. So I would ask if we could please have a detailed assessment.
21. MR JUSTICE OUSELEY: You can certainly have detailed assessment. You do not wish to respond to the costs?
22. MS TUEJE: If it is subject to the usual requirements of not to be enforced, then I do not wish to.
23. MR JUSTICE OUSELEY: There will be an order for costs in favour of the local authority, not to be enforced without leave of the court. The discharge of the injunction is immediate. It be appropriate for there to be a little bit of packing up time in this case. I would have thought that it should be discharged with effect from -- what do you say?
24. MS TUEJE: Well, I would be like to ask until next Monday, but if that is considered to be too long a period -- that is less than a week -- I would ask at the very least until this Friday.
25. MR JUSTICE OUSELEY: Miss Cafferkey?
26. MISS CAFFERKEY: We have no objection to next Monday.
27. MR JUSTICE OUSELEY: This injunction will be discharged with effect from 19 May. Thank you very much to you both.