England and Wales High Court (Administrative Court) Decisions

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

		Sitting at: Manchester Civil Justice Centre 1 Bridge Street West Manchester M3 3FX
		24th April 2009

HIS HONOUR JUDGE PELLING QC:

1. In these judicial review proceedings the claimant seeks an order that the defendant local authority provide temporary accommodation for the claimant, his wife and a ten-month old child, pending the completion of a review of a decision to refuse to house the applicant and his family on the basis that he was intentionally homeless.
2. These proceedings were commenced by the issue of a judicial review claim form on 23 April 2009. However, the applicant applied for and obtained on 22 April 2009 from Langstaff J an order without notice, requiring the defendant to provide accommodation over until today. This hearing is the hearing of an application to continue that order. The local authority asks that the application be dismissed. If I adopt this course then the claimant and his family will, at any rate apparently, be street homeless from tonight.
3. The statutory framework is relatively straightforward. By Section 180(1) of the Housing Act 1986:

"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."

By subsection 3 it provided that:

"2) The duty under this section arises irrespective of any possibility of the referral of the applicant's case to another local housing authority (see sections 198 to 200).

(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 secure that accommodation is available for the applicant's occupation pending a decision on a review."

4. In relation to persons who, it is concluded, are intentionally homeless that have priority need, the duties are set out in Sections 190(1) and (2), which are to the following effect:

"(1) This section applies where the local housing authority are satisfied that an applicant is homeless and is eligible for assistance but are also satisfied that he became homeless intentionally.

(2) If the authority are satisfied that the applicant has a priority need, they shall --

(a) secure that accommodation is available for his occupation for such period as they consider will give him a reasonable opportunity of securing accommodation for his occupation, and

(b) provide him with advice and such assistance as they consider appropriate in the circumstances in any attempts he may make to secure that accommodation becomes available for his occupation."

5. The claimant says that he is married and was living with his mother and had lived with his mother all his life. He says he had married on 28 February 2007 and that his wife came to live with him with his mother on 26 August 2007. The applicant says that his wife gave birth to their son on 28 May 2008.
6. The claimant claims that, having lived with his mother down to 9 March 2009, he was ejected by his mother on that date. He applied to the local authority for assistance and he and his family were accommodated at a hostel down to 20 March 2009 when the local authority decided he was intentionally homeless, communicating that decision by a decision letter of that date. The basis of the conclusion, as set out in the penultimate paragraph on page 1 of the decision letter, was:

"Our visiting officer visited your mother on 19/03/09. Your mother informed her she did not ask you to leave, you left of your own accord. As you have voluntarily ceased to occupy the accommodation that was reasonable and available for your continued occupation we find you to be intentionally homeless and as such will provide you with a reasonable period of accommodation which we deem to be 14 days."

7. He was given until 3 April to vacate the accommodation that was provided for him and an application for a review was submitted on 7 April 2009 with a request for accommodation to be provided pursuant to either Section 188(3) or Section 190(2)(a) of the 1996 Act. The claimant and his family were provided with accommodation voluntarily by the local authority, albeit by a series of extensions, down to 22 April 2009 and thereafter, pursuant to the order of Langstaff J.
8. The basis of the review to be undertaken by the local authority was that the original decision was based, as I have said, on an assertion by the claimant's mother that the defendant left voluntarily. Since the hearing before Langstaff J, the review has progressed and a lengthy letter, described as a "minded to" letter, was issued today. I do not intend to recite the contents of the letter in detail; suffice to say that the claimant's mother has been re-interviewed, apparently at length, and she now says that she ejected the claimant; but the local authority, for a variety of apparently cogent reasons set out at length in the letter, believe that evidence to be untrue, and that the claimant's conduct shows that, in reality, he is seeking to manipulate matters so that he obtains accommodation from the defendant.
9. As is apparent from the judgment in R v Camden London Borough Council ex parte Mohammed [1998] 30 HLR 315 -- a decision of Latham J -- a local authority, in exercising a discretion to provide interim accommodation, had 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, so that to deprive him of accommodation would result in the denial of an entitlement. In carrying out the balancing exercise Latham J identified certain matters, which will always require consideration, they being three in number and being:

"(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."

10. In relation to Section 190(2)(a), the principles are those identified by the Court of Appeal in R (on the application of Conville) v Richmond-Upon-Thames London Borough Council [2006] HLR 45, where it was held that, when an authority decides how long they should secure that accommodation is available so as to give an applicant a reasonable opportunity of securing accommodation for himself pursuant to the duty under Section 190(2)(a) of the 1996 Act, they may not have regard to considerations peculiar to them such as the extent of their resources and other demands on them; but what is reasonable for the purposes of the subsection is to be assessed by reference to the particular needs and circumstances of the applicant, including the possibilities open to him of obtaining accommodation. If the applicant is not making reasonable efforts to pursue such possibilities, that will be a strong indication that he should not be given more time. Even if the applicant makes reasonable efforts, a moment will normally be reached when time will expire if these possibilities have not come to fruition.
11. Against that background I now turn to the facts of this case. It is accepted by all parties that I must look at things as they are today; and so it is conceded on behalf of the claimant, rightly in my judgment, that I have to proceed on the basis that it is highly likely that the review being carried out by the defendant local authority will be resolved very shortly after next Wednesday and against the claimant. Although I cannot eliminate the possibility that the result of the "minded to" letter may be further information forthcoming from the claimant which may persuade the defendant, notwithstanding the context of the "minded to" letter, to take a different view to that provisionally indicated in the letter. The defendant's case is that the claimant has made no real efforts to find accommodation. In answer to this the claimant maintains that he is not able to get alternative accommodation because of outstanding rent arrears in respect of his current accommodation.
12. The defendant's case, in essence, is that this is nothing but a sham. In support of that the defendant relies on some internal notes which suggest that might be so. The notes are contained in a document headed: "Case Notes - Support and Move Out" maintained by the Homeless Families Shared Accommodation at Egerton. It is necessary for me only to identify a few of the entries in order to demonstrate the nature of the local authority's case. So, on 28 March 2009 there appears an entry to the following effect:

"Family came to the hostel at about 22:15hrs. I asked Adeel what he had done so far to identify a property to stay after 03/04/09.

Adeel's reply was quite relaxed and said that he had been phoning about and had been to view one property and has another appointment to view another property. I assisted the family to complete a rent wise application form and did a referral to social services for assistance of deposit towards a private let.

I had given Adeel a few number of landlords. I also advised Adeel to try and speak to his mum to let him stay with her until he had enough for a deposit just in case his leave date is due and the family have no where to go. Adeel said that his mum does not want to hear from him or his family."

Again on 9 April 2009 there appears an entry timed at 13:45 hrs to the following effect:

"I asked Adeel what areas he was interested in residing in. He stated Longsight, Levenshule, Rushholme (South Manchester). I asked Adheel if he had been given the numbers for Skyline Properties & Madina Properties who both accept both HB and Bond Scheme. Adheel confirmed that he had previously been given both numbers. He said he had been in touch with them, but had not had the time to go to there office and discuss type of property required and arrange viewings. I emphasised that he really should do this sooner rather than later. Adheel said he will go to the office."

Again on 13 April 2009 there appears an entry to the following effect:

"Spent some time with Adheel asking him if he was interested in any of the properties that staff had given him on-Thursday-09/04/09 from Madina-Properties.

Adheel said he was'nt interested in them, as they were all 3-Bed-Properties,and he really wants 2-Beds.

Staff contacted Skyline,on Adheel's behalf,the same day that they spoke to Madina-Properties.Adeel was aware of this,as staff informed him they did not have anything in the area's that he was interested in."

Again on 14 April it is recorded that:

"Staff spoke to Adeel,when the family came back in tonight,staff asked Adeel if he had any luck in securing a property-NO-he told staff this morning,that he was going to Madina-Properties,to see what properties they may have,but on returning to Egerton tonight,he said he has'nt been,as he had to go to work."

Finally for the purpose of completing this exercise. I need refer to only two other entries, one dated 20 April 2009 where it is recorded that:

"Staff contacted Madina-Properties,on behalf of Adeel,asking if they would fax over,an up-to-date list of properties-YES-staff have given Adeel a copy."

Then on 21 April 2009 it is recorded that:

"Adeel came to the office to phone Madina. When he came off the phone I asked if there was anything available. Adeel claimed that there was only one property which wasn't available yet in Longsight and Madina would be getting back to him. There was a property in Gorton 2 bed, but he said it wasn't suitable as it was too small for a child!. Explained that a 2 bed house is suitable. When Adeel left the office I phoned Madina so I could update the list. I was told that there was a 2 bed property in Rushhulme available, 2 Parkfield Ave at £550 Pm and a 2 bed Property in Gorton on Windsor St at £495 pm. These properties are ready to be viewed and let. The property on Delafield av Longsight isn't ready yet. Will inform Adeel."

13. However, as against that there is one entry which is relied upon by the claimant, demonstrating the true nature of the problems he faces. It is dated 22 April and appears as the last entry in the document that I have been quoting from at length already. It is to the following effect:

"Adeel and family moved out today. Informed Adheel need to provide 2 months of transactions for each bank account if [housing benefit] is to be processed with a deadline of 21/5/09

Adeel paid £60 rent. Balance to be paid at Egerton Hostel as he does not have a rent card. Tried to obtain a card via FTA section but unable to help. Rentwise application had missing addresses. Faxed back form with requested information. Adeel says unable to persue Medina properties because of rent arrears with Egerton - next pay date next thursday. Adheel says has nowhere to go on leaving Egerton. Advised can contact social services and should do so if any concerns about child."

14. I am bound to say that, on the evidence that is available to me, I am very doubtful as to whether the claimant has made the strenuous effort required in order to obtain accommodation. I accept he is in employment. On his own case he is in employment working 35 hours a week. Apparently, on his employer's version of events he is employed for 40 hours a week. This generates an income of between, as I understand it, roughly £350 and £650 per fortnight, and the number of hours claimed to be worked leaves in my judgment sufficient hours available for the purpose of visiting properties and looking at them and deciding whether or not they are suitable for his needs.
15. However, all of that said, I am satisfied from what I was told that from next Thursday, on any view, the claimant will have or will have the means of discharging all relevant arrears which on his case explains why he has been unable to take up apparent offers of accommodation prior to today's date. It has not been suggested that accommodation would not be available as at that date, and indeed his counsel has told me on instructions that one property that has been looked at and found to be suitable will be available then.
16. In the circumstances of this case I bear in mind the following factors which lead me to the conclusion that I have reached. They are: a) that the application for judicial review is at least arguable; b) an outright refusal to extend the order made by Langstaff J may mean that a 10 month old child will be street homeless tonight, though it is possible that may not be so, although the position is, on the council's case, in relation to that issue far from clear; c) there are good grounds for thinking that reasonable efforts to obtain alternative housing had not been made; d) there is a possibility that arrears may prevent the applicant from obtaining immediate re-housing, but on his own case that will cease to be so next Thursday; e) it is likely that the statutory obligation to provide temporary accommodation, even under Section 190, is likely to come to an end very shortly after next Thursday in any event.
17. In approaching an application of this sort on incomplete material prepared on a hurried basis, there is an obvious risk of serious error. It is preferable in my judgment for these reasons to err on the side of caution. For these reasons I am prepared to extend the order made by Langstaff J but only over until 6pm next Friday.
18. An order in these terms gives full effect to the defendant's submission that he cannot get accommodation before next Thursday at the earliest, when various sums will be released to him which will enable him to discharge outstanding arrears. The additional day is designed to cater for any unanticipated delays that might occur in either the receipt of the money or the administrative processes that will need to be carried out following the receipt of such sums. However, in my judgment it would be wrong in principle for me to grant any further relief beyond that which I have indicated I am prepared to grant, at any rate on the information that is currently available.
19. To that limited extent, therefore, this application succeeds.