England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		30/10/2009

The Honourable Mr. Justice Burnett:

Introduction

1. This application comes before me as a rolled-up application for permission to apply for judicial review of a decision of the defendant local authority ["the Council"] dated 27 March 2009. The Council refused to exercise their statutory functions under sections 183 and 184 of the Housing Act 1996 ["the 1996 Act"], on the ground the application was based on exactly the same facts as a previous application which had resulted in a decision that the claimant was not homeless.
2. The procedural history of the claimant's dealings with the Council in outline is as follows. The claimant first applied to the Council for assistance on the ground that she and her daughters were homeless in March 2008. That application was rejected on 29 March 2008 on the basis that the claimant was not homeless. The reason for that conclusion was that the claimant had a home in Colombia which the Council concluded it was reasonable for her to occupy. The essence of the argument advanced by the claimant as to why it was not reasonable was that one of her daughters, S, was autistic and in need of care and support, including educational support, which was not available in Colombia, from where the claimant and her two daughters had returned in November 2007. On 17 April 2008 the claimant's solicitors requested a review of that decision. The decision was then withdrawn and a new decision made on 23 July 2008 to the same effect. A review of that decision was requested. The review decision was issued on 15 September 2008 but the decision that the claimant was not homeless was affirmed.
3. The claimant appealed that decision to the County Court. On 18 December 2008 His Honour Judge Collender QC dismissed the appeal and refused permission to appeal to the Court of Appeal. Papers were in due course lodged with the Court of Appeal.
4. On 22 January 2009 the claimant's solicitors made a fresh application to the Council for housing on the basis that circumstances had changed since the September review, thus asking for a new decision. On 27 March 2009 that application was rejected on the basis that the application was made on exactly the same facts as before. It is that decision that is challenged before me.
5. On 30 April 2009 Jacob LJ gave permission to appeal the decision of Judge Collender QC. That appeal is due to heard in the week beginning 2 November 2009.
6. These proceedings were issued on 25 June 2009 and came urgently on paper before a Deputy High Court Judge four days later. He ordered a rolled -up hearing with expedition. He had an eye to the claimant's current housing situation, namely that she and her daughters were in temporary accommodation which the Council had agreed to provide without prejudice to the issues on the appeal. The reason for directing that the case proceed in the way described was to enable this matter to be heard in time for any subsequent appeal in the Judicial Review proceedings to be linked to the existing appeal relating to the earlier decision of the Council. The matter came on for hearing in the Administrative Court on Wednesday 21 October, in circumstances where judgment had to be reserved. This chronology demonstrates that the purpose for which the rolled-up hearing had been ordered had been frustrated by the passage of time. I expressed my concern to the parties because it appeared to me that there was a risk that duplication in the proceedings was causing a great deal of public expense for limited utility. Mr Nabi, who appeared for the claimant, explained that if his client was successful the Court of Appeal would be notified so that the hearing in that Court might be stood out. On that basis this application continued. My decision was notified to the parties on Tuesday 27^th October 2009. These reasons were circulated on Wednesday 28^th October 2009 with a view to handing down judgment on 30^th October 2009.

The Facts

7. The claimant is a British national with two children, S born on 24 February 1995 and Melissa born on 24 July 1997. The claimant is Colombian by birth. She, her husband, S and Melissa moved to Colombia in April 2006. They believed that Sabina's need could be met adequately in Colombia but that turned out not to be the case. They wished to establish a business in Colombia and bought a seven bedroom house which, although said to be at some risk of flooding, is otherwise an entirely satisfactory home. The marriage came under strain. The claimant returned to the United Kingdom in November 2007 and, as already indicated, sought assistance with housing under Part 7 of the 1996 Act in March 2008 which was finally determined by the Council in the review decision of 15 September 2008.
8. Before me, the claimant agreed that she had an interest in the house in Colombia and that absent S's condition it would be reasonable for her to return there. Mr Nabi readily accepted that the underlying contention is that it is not reasonable to expect the claimant to occupy any property in Colombia given S's condition. The suggestion that the property is prone to flooding is not any longer relied upon.
9. The material concerning S's condition that was placed before the Council before the impugned review decision included a report dated 17 April 2008 from Dr Torres, a psychologist at the University Mental Hospital in Risaralda, a report from Dr Barnes of the Barnet Mental Health NHS Trust, a specialist in child and adolescent psychiatry, dated 21 August 2008 and input from Maria Lister, the special needs coordinator for S. Dr Torres confirmed that no specialist teaching was available in Colombia to enable S to develop her intellectual potential. He recommended that the family return to the United Kingdom to enable S to have the opportunity better to develop that potential. Dr Barnes first examined S in June 2008. She was under the care of a multi-disciplinary team which included a speech therapist. He indicated that she had profound medical, social and educational needs. His assessment was not complete but he thought that 'her difficulties suggest that she presents as a young person who fits on the Autistic Spectrum Disorder.' He considered that there may be more enduring mental illness. The substance of his discussion of what S needed was contained in the following passage from his letter:

"Given S's autistic-type presentation, it therefore affects all aspects of her life - having a global impact. In education she has a statement of Special Educational Needs, requiring 25 hours of one-to-one support throughout the academic week. S does display high academic and intellectual abilities in very specific area, but without the appropriate one-to-one support she would be lost and completely unable to cope within a normal secondary school environment. Even with this support, her behaviour can at times become disruptive and difficult for those working with her to manage. I am not aware that she would receive this level of support educationally in Colombia.

Socially, S is completely dependent on the care of her mother and younger sister M, whose lives need to be able to react immediately to her drives and impulses. S is a very energetic and enthusiastic young person, but finds it very difficult to tolerate any sense of frustration or limits to her wishes and her reaction can often be quite extreme if she feels that her wishes are being impeded. Again here in Haringey, we hope we might be able to provide the necessary support for S and her family through Social Services and through respite provisions such as the Marksfield Project or Moselle School, in order to allow S to engage with others who might be able to tolerate the intensity of her needs for a brief period of time and to allow her family the opportunity of some respite. Again, I am not aware of the opportunity for this type of support for the family within Colombia.

Finally, given S's extremely complex needs, a whole array of therapeutic and behavioural management options may need to be considered for S and for the family. Although the assessment is far from complete, I am aware that specialist input from a team such as Haringey Autism will be required as well as specialist advice and potential therapeutic support from Child and Adolescent Mental Health Services. I see this as something that S is going to need all the way through her adolescent years and she will need ongoing support as a young adult. S also takes medication, 0.5 Risperidone once daily and this needs close review and monitoring. Likewise, the need to explore different forms of media and opportunities for communication and working with S need to be constantly reviewed and monitored. All of these considerations need to be taken into account when trying to address the needs of such a complex young person. I again doubt that this would be something that would be available in Colombia.

As a result, I feel that there are clear grounds for considering S's needs when trying to address the housing needs for this family as a whole. As you will see from the letter above, S's needs are global and span medical, psychological, educational and social components of her life. I therefore hope it will be possible for the housing department to reconsider their decision with regards to the housing needs of this family."

10. Maria Lister noted that S was the most vulnerable child for whom she had responsibility at present.
11. The Council took account of all this information at the review when considering whether it was reasonable for the claimant to live with S in Colombia. The review decision was made by Martin Wierzbicki. The material conclusions are contained in the following extract from the decision letter:

"However, in November 2007, G returned to the UK with her 2 daughters and stayed with her sister at B Road, London N15. The reason for leaving Colombia was a combination of wanting to provide a better standard of education for her daughter, S, and that the relationship with her husband had broken down.

There is no doubt that S has many needs. Although a formal diagnosis of autism has not been made, her difficulties suggest that she presents as a young person who fits on the Autistic Spectrum Disorder (from Dr Nick Barnes - dated 22 July 2008). S was in school in Colombia. She had been moved from one class to another where she received a higher degree of support. However, G was concerned that S's development was regressing in Colombia. Rather than dwell on this point, I am satisfied that although S was getting a degree of educational support in Colombia, there is a higher degree of support available in the UK and there is evidence on the housing file that supports this.

I do not have many details of the state of G's relationship with her husband, only that there are divorce proceedings pending. It seems that while in Colombia, the relationship ended and divorce proceedings were commenced by G in 2008 after she had returned to the UK. There is no violence spoken of, so I assume the relationship has ended non-violently. The details of the divorce settlement are not available yet, but I assume G stands to financially benefit from the sale of the house in Colombia and continued support for the children.

This is of significance as G claims to have left Colombia mainly to ensure S receives better support, but she makes no secure housing arrangement beyond staying with her sister at B Road. From the letters and notes on the housing file, this could only have been a very temporary measure as the living arrangements were clearly unsuitable. So if G's intention was to improve her daughter's support and education, why put her at so much risk? I conclude that G must have been thinking ahead and assuming that she will be able to find adequate housing possibly through the sale of the house in Colombia, which would give her a deposit to either buy a home in the UK, or to rent one. It couldn't have been the intention of G to come back to the UK and apply to the Local Authority for housing as homeless a few months later. This would be truly reckless.

The decision made by the Council on the 23^rd July 2008 is that G is not homeless because she still has the right to live in the marital home at KM1 Via Troncal Combia Pereira-Risaralda, Colombia. Even though she left there to come to the UK, it was available to her and reasonable for her to continue to occupy.

I have a great amount of sympathy with G as it is clear that she has S's best intentions at heart. But I uphold this decision because at this time the house in Colombia is available to her as she is the joint owner; she is not at risk of violence if she returns there; and the divorce proceedings are not concluded. G stands to gain financially when the divorce proceeding are concluded and this will give her the means to plan her on-going housing.

The main question is whether the house in Colombia is reasonable for G and her 2 daughters to continue to occupy. The house is of adequate size and is solid, despite its problems with flooding. The issue is whether the education received in Colombia for S is suitable for her complex needs, and whether the schooling in Colombia was so poor that G could no longer remain in her home as there was better education available in the UK. I do not support this view. There is no doubt that the provision of support for S is better in the UK than in Colombia. There is a letter dated the 31^st October 2007 on file from the University Mental Hospital in Risaralda advising G that at that time, S's physical, emotional and intellectual development was suffering and that she was unlikely to obtain a higher level of intellectual functioning. Within a month, G was back in the UK to arrange schooling for S. However I do not take the view that on this advice, the home in Colombia is suddenly rendered 'unreasonable to occupy'. It is probably right that G took steps to improve S's educational chances, but this needs to be planned, and whilst G has rights to the home in Colombia, it is not the proper course of action to seek housing from the Local Authority as a homeless person, G is in a better position than most as she can use the proceeds of the divorce settlement to plan for her future. I do not support the view that because the most effective level of education and support is not available in one area, that all homes in that area suddenly become unreasonable to occupy. This logic would mean that homes in many areas of the world are unreasonable to occupy.

Having considered the information available to me, I must conclude that KM1 Via Troncal Pereira-Risaralda, Colombia is available to G, and that it is not unreasonable for her to occupy the property. I have therefore decided that your client is not homeless pursuant to Part VII of the Housing Act 1996 and this authority does not owe a legal duty to house her. I must therefore uphold the Council's decision in the letter of 23^rd July 2008."

12. The fresh application following the dismissal of the claimant's appeal on 18 December 2008 was contained in a letter dated 22 January 2009 which contended that that it was not made on the same facts as before. It drew attention to a new letter from Maria Lister and Alex Atherton, the head teacher of Park View Academy, in which they said that S's mental well-being would be significantly adversely affected by instability. They also indicated that without the support currently being provided, S would not be able to function positively. Recently she had made enormous progress. Ms Lister and Mr Atherton gave a description of the ways in which S had improved. Poor behaviour had almost completely subsided 'to reveal an intelligent young person who attends all subjects and functions well in most areas. She is beginning to have conversations with staff and peers'. They concluded by saying that 'S needs to remain in a system that entitles her to an environment that is professionally geared to supporting her continued development and the meeting of her human rights.' The letter enclosed subject reports from S's school. That material was augmented by an updated report from Dr Barnes dated 30 December 2008. He confirmed 'considerable and dramatic improvements' in S's condition. He described her case as extremely complex. He concluded that disturbing features of her behaviour which had earlier been manifest had resulted from disruption in her life. He characterised her time in Colombia as being 'devastating' for her. The school had been able to increase the hours of specialist support provided to S to the extent that she was now thriving. He went on to emphasise the point he had made in his earlier letter that it would be damaging for S to return to Colombia:

"I subsequently refer back to my previous letter to yourselves back in August 2008. In that letter I was very clear that I did not feel that there was the recognition or the capacity to provide adequate support for such complex needs in the educational system in Colombia. The level of provision and the skill associated with that provided by Park View Academy is simply not available within Colombia. The other extended services such as those provided by Haringey Autism or other community projects within Haringey is likewise not available in Colombia. Social recognition of the needs of a child such as S simply is not present. I therefore remain convinced that if S were to return to Colombia then she would simply retreat once again back into her autistic view of the world and this would have a resultant negative impact on all areas of her subsequent development.

Finally given the complexity of S's presentation, I am aware that there are still ongoing areas of need to be thought about, perhaps diagnosed and treated. As a result of this that I have asked for further input from Dr Reenee Barton. S clearly needs this input if we are to maintain the level of progress that has been achieved over the last few months.

Subsequently I hope it is possible for those involved in considering this case to recognise the immediate and direct impact of this decision upon the prognostic outcome for S. S has many complex needs that can potentially be addressed. By meeting those needs we are seeing a direct and immediate impact. I can only hope that we are given the opportunity to continue to meet those needs for I fear that if all services are withdrawn, as they would be if S were to return to Colombia then the outcome would be quite detrimental.

I hope that this therefore sufficiently clarifies my concerns for S with regards to this recent decision that went against G. My concerns are clearly about the clinical impact on such a decision. If however you feel that it would be helpful for me to clarify these issues then please do not hesitate to contact me."

13. The Council's response to that material was contained in a letter from its legal department. The test applied by the Council was whether the application was based on exactly the same facts as the previous application. Mr Daykin, the legal officer, acknowledged that the material provided showed that S was making satisfactory progress. However, since the earlier review decision recognised that facilities would be better here than in Colombia he concluded that the facts remained the same so that the Council would not entertain the new application. In reply to that letter the solicitors acting for the claimant emphasised that the material they had provided went far beyond supporting the general proposition that education and care available here was better than that in Colombia. They stressed the enormous progress S had made, which was not foreshadowed in the earlier material and the damage which would result if she were to go back to Colombia. Mr Daykin maintained the Council's position. He thought S's improvement was a manifestation of the natural progression of autism and 'neither an unusual nor unexpected thing'.

Legal Framework

14. It is sufficient for present purposes to set out sections 175, 183 and 184 of the 1996 Act

"175 Homelessness and threatened homelessness

(1) A person is homeless if he has no accommodation available for his occupation, in the United Kingdom or elsewhere, which he—

(a) is entitled to occupy by virtue of an interest in it or by virtue of an order of a court,

(b) has an express or implied licence to occupy, or

(c) occupies as a residence by virtue of any enactment or rule of law giving him the right to remain in occupation or restricting the right of another person to recover possession.

(2) A person is also homeless if he has accommodation but—

(a) he cannot secure entry to it, or

(b) it consists of a moveable structure, vehicle or vessel designed or adapted for human habitation and there is no place where he is entitled or permitted both to place it and to reside in it.

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

(4) A person is threatened with homelessness if it is likely that he will become homeless within 28 days.

183 Application for assistance

(1) The following provisions of this Part apply where a person applies to a local housing authority for accommodation, or for assistance in obtaining accommodation, and the authority have reason to believe that he is or may be homeless or threatened with homelessness.

(2) In this Part—

"applicant" means a person making such an application,

"assistance under this Part" means the benefit of any function under the following provisions of this Part relating to accommodation or assistance in obtaining accommodation, and

"eligible for assistance" means not excluded from such assistance by section 185 (persons from abroad not eligible for housing assistance) or section 186 (asylum seekers and their dependants).

(3) Nothing in this section or the following provisions of this Part affects a person's entitlement to advice and information under section 179 (duty to provide advisory services).

184 Inquiry into cases of homelessness or threatened homelessness

(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.

(2) They may also make inquiries whether he has a local connection with the district of another local housing authority in England, Wales or Scotland.

(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.

(4) If the authority have notified or intend to notify another local housing authority under section 198 (referral of cases), they shall at the same time notify the applicant of that decision and inform him of the reasons for it.

(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).

(6) Notice required to be given to a person under this section shall be given in writing and, if not received by him, shall be treated as having been given to him if it is made available at the authority's office for a reasonable period for collection by him or on his behalf."

15. It is common ground that the question of whether it is reasonable to continue to occupy accommodation under section 175(3) is to be approached subjectively (see R v LB Brent ex parte McManus (1993) 25 HLR 643 at 648). The reasons given at the review stage in September gave rise to the possibility that the Council may have thought that the educational and medical needs of S were not material considerations in deciding whether it was reasonable for the claimant to continue to occupy the home in Colombia. However, that was not an argument advanced by the Council on the Appeal before Judge Collender QC nor is it part of their argument in the Court of Appeal. Miss Maxwell, who appears for the Council tentatively raised the possibility but it was not argued before me, not having been raised in the Council's Acknowledgement of Service and Summary grounds of Resistance. Such an argument would be very difficult in the face of the decision in Maloba v Waltham Forest London Borough Council [2008] 2 All ER 701 where the Court of Appeal rejected the proposition that the council, when making a judgement under section 175(3), was entitled to consider reasonableness solely in terms of the size and structural quality of the accommodation and its amenities. (See Toulson LJ at [59] -[61] and Carnworth LJ at [83], who held that the fact that the home in question in that case was in Uganda was a factor which should have been taken into account.)
16. Under section 182 of the 1996 Act, the Secretary of State may issue guidance to which housing authorities must have regard in the exercise of their functions relating to homelessness and prevention of homelessness. Paragraph 6.27 of the Guidance issued pursuant to that provision provides:

"There is no period of disqualification if someone wants to make a fresh application. Where a person whose application has been previously considered and determined under Part 7 makes a fresh application, the authority will need to decide whether there are any new facts in the fresh application which render it different from the earlier application. If no new facts are revealed, or the new facts are of a trivial nature, the authority would not be required to consider the new application. However, where the fresh application does reveal substantive new facts, the authority must treat the fresh application in the same way as it would any other application for accommodation or assistance in obtaining accommodation. Therefore, if the authority has reason to believe that the person is homeless, or threatened with homelessness, the authority should make inquiries under section 184 and decide whether any duty is owed under section 188(1). "

17. The language of the guidance has been drawn from the speech of Lord Browne-Wilkinson in R v Harrow LBC ex parte Fahia [1998] 1 WLR 1396. That was a decision on the predecessor provisions in the Housing Act 1985 but the reasoning in Fahia has been applied to the 1996 Act (see Rikha Begum v Tower Hamlets LBC [2005] 1 WLR 2103.) Fahia was a case where the housing authority had discharged their statutory duties in relation to one application for accommodation. They received a second application when the applicant was about to leave the temporary accommodation earlier provided whilst they considered the first application, the conclusion of which was that she was intentionally homeless. Although there was no doubt that the applicant was threatened with homelessness, the housing authority sought to avoid the need to investigate the claim under the predecessor to section 84 of the 1996 Act, believing that the conclusion would be the same. It was in that context that Lord Browne-Wilkinson observed that the statutory provisions were clear. The duty to investigate arose if the necessary belief in homelessness was present and it was not appropriate to seek to short cut the statutory duty.

"Duty to inquire

The problem is this. When a local authority, having discharged its statutory duties in relation to one application for accommodation, then receives a second application from the same applicant, is it bound in all circumstances to go through the whole statutory inquiry procedure and provide interim accommodation or is there a "threshold test" which the second application must satisfy if it is to be treated as an application under the Act? So, in the present case, Harrow having discharged its statutory duty in relation to Mrs. Pahia's application in 1994, could it decide as it purported to do that there was no fresh application before it in 1995 thereby avoiding the necessity to go through the full statutory inquiries required by section 62 and to provide interim accommodation under section 63?

It is Harrow's case that a person making a second application must demonstrate a change of circumstances which might lead to the second application being successful and it is for the local authority to decide whether that test has been satisfied. So, it is said, in the present case Mrs. Fahia had not shown any new circumstance which could lead to the conclusion that she was not intentionally homeless and that accordingly Harrow could refuse to go through the whole process of making statutory inquiries again.

I have sympathy with Harrow's case on this point but I am unable to extract from the statutory language any sufficient justification for the suggested short cut. Under section 62 the statutory duty to make inquiries arises if (a) a person applies for accommodation and (b) "the authority have reason to believe that he may be homeless or threatened with homelessness." It is established that requirement (a) is not satisfied if an application purports to be made by someone who lacks the capacity to do so: Reg. v. Tower Hamlets London Borough Council, Ex parte

Begum [1993] A.C. 509. Moreover when an applicant has been given temporary accommodation under section 63 and is then found to be intentionally homeless, he cannot then make a further application based on exactly the same facts as his earlier application: see Delahaye v. Oswestry Borough Council The Times 29 July 1980. But those are very special cases when it is possible to say that there is no application before the local authority and therefore the mandatory duty imposed by section 62 has not arisen. But in the present case there is no doubt that when Mrs. Fahia made her further application for accommodation she was threatened with homelessness. Moreover in my judgment her application could not treated as identical with the earlier 1994 application. She was relying on her eviction from the guest house which, for one year, she had been occupying as the direct licensee of the guest house proprietor, paying the rent for that accommodation. She was reimbursed the amount of the rent by way of housing benefit but the fact was that she had occupied premises as licensee for a year. It is impossible to say that there has been no relevant change in circumstances at all.

In the circumstances, I agree with the judge and the Court of Appeal that there was no short cut available to Harrow by way of so-called "non-statutory" inquiries. It may well be that legislation is required to lay down a streamline procedure for processing second or later applications from the same applicant. But the wording of section 62 is too clear to allow the development of such a procedure by judicial decision."

In Rikha Begum Neuberger LJ analysed that decision and concluded that it applied to the 1996 Act despite the minor differences in language from the earlier statute:

"48 The wording and structure of the effectively equivalent provisions of the 1996 Act, sections 183(1) and 184(1), are somewhat different. Nonetheless, it appears to me that the reasoning in Fahia in relation to the 1985 Act is equally applicable to the 1996 Act. Section 183(1) provides in unambiguous terms that "[t]he following provisions apply" once two conditions are satisfied, namely, that ¹¹ a person applies ... for accommodation" and that "the authority have reason to believe that he is or may be homeless or threatened with homelessness". The immediately ensuing section 184(1) then provides that, if they have reason so to believe, the authority "shall make ... inquiries ..." as to (a) whether the applicant is eligible, and (b) what, if any "duty is owed to him".

In my judgment, it is clear, as a matter of ordinary language, that, once there is a genuine and effective application, and once the authority are satisfied that the applicant is or may be homeless, or threatened with homelessness, the operative part of section 183 is engaged, and the "following provisions" become effective. They include section 184(1), which plainly obliges the authority to make inquiries in relation to the matters identified in paras (a) and (b) thereof. So far as para (a) is concerned, eligibility is governed by section 185. As to para (b), the potential duties consist of an interim duty, set out in sections 188 to 189, and final duties, set out in sections 190 to 193. The circumstances in which those duties arise are set out in those sections, as expanded in other sections, as explained above."

Once again the question was whether a duty to investigate arose on the facts, the criterion of belief in homelessness or threatened homeless being established.

18. The reasoning in Fahia and Rikha Begum may not apply directly to the anterior question whether the housing authority have reason to believe that an applicant for assistance may be homeless or threatened with homelessness. There is no question in that context of shortcutting the statutory duty to investigate under section 184 which, ex hypothesi, arises only if such a belief is formed. However, both parties invited me to approach the decision on the basis that the test is the same and the reasoning applies directly. Whilst I have considerable doubts about that proposition it is unnecessary and undesirable for me to decide it. It is undesirable because there has not been argument on the point. It is unnecessary because the statutory guidance in paragraph 6.27 advises authorities to apply that test and the Council in this case indeed sought to apply it. On that basis I am content to accept that it is by that test that this application was to be judged. Had they concluded that the facts were different, the new application would have been entertained and an evaluation of the reasonableness of the housing in Colombia would have been made in the light of the new material. In terms of section 183(1), different facts would have led to a belief that the claimant may be homeless, that triggering the duty to investigate under section 184.

Discussion

19. The question that arises for consideration is thus whether the Council was entitled to conclude that the facts upon which the claimant made her second application in January 2009 were the same as those which were considered at the review the previous September. For the reasons I have given that has become the surrogate question in this case for whether they were entitled not to believe that the claimant may be homeless.
20. Miss Maxwell submits that the essential question relating to S with which this case has been concerned is whether the educational, medical and care facilities available in the United Kingdom are better than those available in Colombia. That question was considered and answered positively in the September review. Nonetheless, the view taken by the Council (and upheld on appeal) was that it was reasonable for the claimant and her two daughters to live in the Colombian accommodation. The material provided with the fresh application at the beginning of this year does no more than provide additional information that confirms the answer to that essential question. So, submits Miss Maxwell, the facts are the same even if the conclusion is more emphatically supported.
21. By contrast, Mr Nabi submits that the facts are self-evidently different. The evidence suggests that living in Colombia would have a profound impact on S in a way that was not suggested by the earlier evidence.
22. In my judgment the information regarding S's condition is central to the question whether it would be reasonable for the family to utilise the accommodation in Colombia. The fact that the facilities available in Colombia are less satisfactory than in Haringey is important but not necessarily decisive. As the reviewing officer found, that was not sufficient to establish that it was unreasonable to expect the claimant and her daughters to reside there. Judge Collender QC did not consider that conclusion to be irrational on the material available. In my view, the extent of the difference and the impact of that difference upon S would be important factual matters in determining the question of reasonableness. So, for example, if the conclusion were that the facilities in Colombia were less good that those in the United Kingdom but that the outcome for S would not be very different, it might well be thought reasonable that the claimant, with S and her sister, should live in the Colombian accommodation. Conversely, if the difference in quality of education and treatment resulted in a very different quality of life for S, that judgment might be different. I am unable to accept the Council's submission that they did not need to look beyond whether Colombian facilities were better or worse than those available here.
23. In my view the material sent in support of the application in January 2009 did amount to 'new facts in the fresh application' which rendered it different from the earlier application, to use the language of the Guidance. The claimant was seeking to persuade the authority that irrespective of the judgement made on the review in September, the new material showed that the environment in Colombia would not simply be worse, but would have a very profound adverse impact upon S. I have set out extracts from, and summaries of, the old and new material on which the claimant relied. In my judgment the factual position had indeed moved on in the period between the review and January 2009. The picture of what would happen if S were to live in Colombia was very stark indeed.
24. The decision on whether the facts were or were not the same is one for the Council under the statutory regime and Guidance. All the material that was before the Council is before the Court. A comparison of that available in September 2008 and early 2009 shows that the Council were not entitled to conclude that the application was based on exactly the same facts. In terms of section 183(l) they were bound to conclude that the claimant may be homeless. In those circumstances, permission to apply for judicial review is granted. The decision of the Council recorded in the letter of 27 March 2009 refusing to entertain the new application is quashed. The matter will be remitted to the Council for the application to be determined on its merits. That will involve an evaluation by the Council of whether the claimant is, or is not, homeless applying the test in section 175(3) of the 1996 Act as part of the duty to investigate under section 184. If they conclude that she is not homeless, the statutory review mechanisms may be engaged with the possibility of a second statutory appeal process. If that were to be the outcome of this process I would emphasise the importance of avoiding a multiplicity of proceedings, with the parties needing to make an early decision on whether there is any utility in keeping the current appeal in being pending the outcome of the fresh application.