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
		27 January 2010

1. DEPUTY JUDGE: This is an application for judicial review, permission having been granted on 2 July 2009 on papers.
2. I will start with an issue which I can dispose of very quickly. The defendant's counsel has asserted that the claim was not brought promptly and therefore that the court should not provide relief on the grounds of delay. Having considered the correspondence and the pleadings in this case, I have concluded that the case was brought promptly. Therefore I reject that argument.
3. The claimant Lizzie Osei lived at an address in the London Borough of Newham with her two children who now are aged 8 and 6 respectively. In the Spring of 2008 she became pregnant with her third daughter who is now 1 year old. Her former partner was violent and abusive towards her. He had been in prison. On his release he resumed his former pattern of serious violence towards her. He ignored court orders designed for her and her children's protection. Unfortunately, he knew their address only too well.
4. The claimant was supported by the defendant council's domestic violence team. The case worker wrote to the Housing Department on 20 June 2008 (bundle pages 114-115). For convenience during this judgment, I shall refer to pages from the trial bundle, lest anyone needs to find them later. The case worker confirmed that the claimant was homeless on the grounds of domestic violence, and supported out-of-borough rehousing. A child protection plan was created for the claimant's children because of the continuing violence. A social worker in the children-in-need team in the borough supported an urgent out-of-borough transfer (bundle pages 70 to 84 and 101). The council's Anti-Social Behaviour team supported the claimant's inclusion in the Priority Housing List on 15 June 2008 (bundle page 113).
5. The claimant applied to the defendant council for emergency rehousing. That request was accepted on 26 August 2008 by the defendant's letting agency manager, Mr G Savill, and Mr S Whitehead, Head of Strategy (Service Development). In accepting the claimant's request, they commented (bundle page 128) -

"Agreed subject to either (a) clearance of FTA debt or (b) substantial reduction and/or suitable arrangements made to clear FTA debt over, say, six months (the then report for rehousing outside policy)."

6. The relevant statutory provisions applicable to this case concerning the allocation of housing are in the Housing Act 1996. Section 167 of the Act provides as follows, so far as relevant. Section 167 (1):

"(1) Every local housing authority shall have a scheme (their 'allocation scheme') for determining priorities, and as to the procedure to be followed, in allocating housing accommodation.

For this purpose 'procedure' includes all aspects of the allocation process, including the persons or descriptions of persons by whom decisions are to be taken."

Section 167 (2) provides as relevant:

"(2) As regards priorities, the scheme shall be framed so as to secure that reasonable preference is given to —

(a) people who are homeless."

At the end of sub-section (2) (e), there is the following:

"The scheme may also be framed so as to give additional preference to particular descriptions of people within this sub-section (being descriptions of people with urgent housing needs)."

Section 167 (2) (A) reads:

"The scheme may contain provision for determining priorities in allocating housing accommodation to people within sub-section (2) and the factors which the scheme may allow to be taken into account include -

(a) the financial resources available to a person to meet his housing costs;

(b) any behaviour of a person (or of a member of his household) which affects his suitability to be a tenant.

.....

(5) As regards the procedure to be followed, the scheme shall be framed in accordance with such principles as the Secretary of State may prescribe by regulations."

7. The defendant council has a scheme. There is no dispute in this case that the scheme complies with the statutory provisions. The scheme is called an allocation policy. It runs to 128 pages, and came into force on 9 September 2002. It hardly needs saying that there is enormous pressure on the allocation of houses by the defendant. Some of the evidence before me indicates a normal waiting period of seven to nine years for a non-priority allocation of a two-bedroom property. Unfortunately, it hardly needs saying too that there is a substantial cohort of applicants for housing who are victims of serious misfortune and violence, as is this claimant.
8. The scheme provides (bundle page 167) at paragraph 2.2:

"2.2 Initial Assessment of Applications

For the purposes of the choice-based scheme, applications are placed broadly in one of three applicant groups by the allocations officer assistant based on information supplied by the applicant on the registration form.

Priority Home Seeker

This group contains those applicants, both council tenants wanting to transfer and general housing applicants whose circumstances are such that the fulfill one or more of the reasonable preference criteria defined by Section 167 Housing Act 1996.

2.3 Direct Offers

Additionally and after appropriate assessment some applicants within these groups may receive direct offers of accommodation. These direct offer groups are:

• additional preference (emergency rehousing);

..... "

9. Paragraph 2.4 deals with that additional preference group (emergency rehousing). The group contains applicants with exceptional circumstances and who need to move urgently on harassment, medical or social welfare grounds. Paragraph 2.4.1 is headed "Harassment Grounds" and it reads, so far as relevant:

"2.4.1 Applicants with an assessed emergency rehousing need on harassment grounds are, in the case of Newham Council tenants, referred to the lettings agency and are authorised by an enforcement manager. These referral agencies have their own procedures for determining and agreeing emergency rehousing status but this would normally involve people who would be in serious danger by remaining at their current address and where perpetrator action has either been unsuccessful or considered to be inappropriate."

At paragraph 2.4.3 social welfare need grounds are set out and they include:

"A child experiencing abuse needs to be moved away from the perpetrator.

The applicant or member of their household is at serious risk of harm either to themselves or to other people in their present accommodation and, in addition, the following conditions have to be met:

the applicant is receiving significant support from the Social Services Department;

the applicant's well-being is seriously affected by their housing situation."

10. At paragraph 2.1.3 of the allocation policy (bundle page 179), it is provided under the heading "Miscellaneous":

"2.13.1 Rehousing outside normal policy where there are exceptional circumstances/delegated authority

The head of Housing Needs ..... has delegated authority to agree rehousing outside policy in exceptional circumstances. This will normally apply where there are special cases not covered by normal allocation rules which warrant special priority, for example, additional priority to ensure a speedier offer may be requested, following which a procedure for such cases is set out."

11. Finally, from the allocation policy (bundle page 184), at paragraph 3.2:

"3.2 Other situations where applicants may be given less or no priority

3.2.2 Applicants who owe the council money

Applicants who have any property-related debt such as rent arrears, council tax arrears or a housing benefit overpayment to the council either relating to their existing home or a former home are normally given less priority than other applicants when being considered for offers of accommodation or when being considered for a nomination to a registered social landlord for housing until such time as they clear all debts owed."

12. It is plain that the claimant falls within the most serious category of need set out and envisaged in the policy. It is equally the case that the claimant owed a substantial amount of money in rent arrears to the council. It is undisputed that, as a result of the Act and the policy, the defendant had to exercise a discretion whether to rehouse the claimant.
13. I return to the decision of 26 August 2008, from which I quoted earlier. The claimant says that the comments which I quoted strongly suggest a fixed policy of non-allocation if there is debt in existence without, at least, an agreed scheme for reduction. The claimant was in debt to the council for rent to the tune of over £3,000.
14. The document of 28 August 2008 was the response to a letter sent to the council on the claimant's behalf by her solicitors Messrs Hereward & Foster, dated 19 August. In it, they set out the important facts. I will not name the violent former partner. The letter stated:

"We have been instructed that our client has been the victim of domestic violence from her former partner, Mr K, for approximately 13 years. Mr K is the father of our client's two children. Our client is now pregnant with her third child. Mr K was arrested on suspicion of raping another woman earlier this year. Our client instructs us that he was due to attend court but has absconded. He has since repeatedly called our client. Our client is unsure of his current whereabouts and is extremely scared about what he might do to her. Our client's children have been placed on the Child Protection Register and social services have apparently advised that our client is transferred to urgent accommodation as a matter of urgency in order that her and her children might feel safe again."

Further comments in the letter emphasise those issues strongly.

15. On 3 September 2008 the council wrote to the solicitors. The letter included the following:

"I can confirm that Miss Osei has been awarded emergency rehousing statement, 23 July 2008. However as you have alluded to in your letter, Miss Osei has a former tenant arrear of £3,859.63 from when she was placed in temporary accommodation by our then Homeless Persons Unit."

Further the letter states:

"Newham operates a 'no debt' policy. Therefore until the matter is resolved satisfactorily, miss Osei will not be offered alternative accommodation."

16. On 9 September 2008 the solicitors wrote again to the defendant council. This was, in effect, a letter before action. In that letter the solicitors referred to the failure of the defendant to transfer the claimant to suitable alternative accommodation and that that decision would be challenged. The duties were set out as asserted by the solicitors. At bundle page 133 the solicitors repeated the factual background involving domestic violence and the registration of the children on the Child Protection Register.

17. On 17 September 2008 (bundle pages 138 and 139) the council gave their decision, the subject of this judicial review.

17. In her persuasively presented argument, Miss Meacher, for the claimant, said that though the defendant's policy was lawful, they failed to apply it lawfully. The principal failure relied upon was that the council only had regard to the debt position. Counsel argued that the documents and correspondence make it clear that no regard was had to the claimant's very difficult circumstances and the danger she was in. In effect, said Miss Meacher, debt trumped everything, but not as an exercise of a discretion but as slavish application of a no-debt policy. Miss Meacher said that is self-evident from the phraseology used in documents from which I quoted earlier. She says too that as much is clear from a witness statement by the defendant's Mr Savill, to whom I referred earlier, a statement dated 6 October 2009 but regrettably served only yesterday.
18. Miss Meacher argued that restricting the provision of housing in relation to debtor applicants to exceptional cases, as the council has argued, is too restrictive an application of the policy and therefore unlawful. And, she has argued, this was an exceptional case anyway.
19. Miss Meacher relies, by analogy, on a similar case decided in 1993, albeit under different statutory provisions which have now been superseded, R v London Borough of Islington ex p Aldabbagh 27 HLR 271. At page 281, Harrison J said:

"I turn next to the submissions that were made relating to the operation of the policy, that is the decisions made in this case. The first decision was that in deciding to suspend active consideration of the applicant's transfer application, the council only took into account the rent arrears and failed to take into account other considerations, particularly her medical category A status. This point was taken, both in relation to the decision notified by the letters and in relation to the decision notified by [a later letter].

In my view there is considerable force in the applicant's submission to be borne out by the wording of the letters notifying the decisions. I have already quoted the relevant parts of those letters earlier in this judgment but it is worth pointing out the salient parts of them. The letter of May 29, 1992 specified the amount of the applicant's arrears and then said 'as a result' her application would not be given active consideration. That has all the hallmarks of a decision taken on the grounds of rent arrears alone. There is no mention of the applicant's medical category A status. Later, it continued in the next sentence to say that the delay in rehousing was 'therefore' directly attributable to her rent arrears since 'no offer can be made whilst this situation persists'.

These sentences suggest strongly to me that the only matter that was considered was the rent arrears. Whilst the applicant's medical category A status is mentioned in that letter, there is nothing to show why that was not considered to be an exceptional circumstance under the council's policy."

20. That decision of remains a good illustration and a sound application of the well-known principle that a public law authority acts unlawfully if it fetters a discretion with a rule.
21. Further, says Miss Meacher, the defendant was bound to give reasons and did not give any, or any that were adequate or intelligible.
22. To the contary, Mr Johnson for the defendant council argued that the correspondence showed that the defendant had applied their policy and exercised their discretion in a proper way, giving all that was required of them in reasons. He reminded the Court that in Ahmad v London Borough Council of Newham [2009] UKHL 14, 46, Lord Neuberger of Abbotsbury said:

"46 ..... as a general proposition, it is undesirable for the courts to get involved in questions of how priorities are accorded in housing allocation policies. Of course, there will be cases where the court has a duty to interfere, for instance if a policy does not comply with statutory requirements, or if it is plainly irrational. However, it seems unlikely that the legislature can have intended that Judges should embark on the exercise of telling authorities how to decide on priorities as between applicants in need of rehousing, save in relatively rare and extreme circumstances. Housing allocation policy is a difficult exercise which requires not only social and political sensitivity and judgment, but also local expertise and knowledge."

23. Counsel argued that it is accepted that an authority must follow a published allocation scheme and that failure to do so is unlawful. However, that obligation must be read in the light of Section 167 (5), which I cited earlier, and the observations in Ahmad which disclose, as trite public law, that an authority has a wide discretion in the adoption and application of their allocation policy: it is a matter for them how they apply it, subject of course to the limits imposed by of public law. Mr Johnson argued that the claimant has failed to show in that context and against that background that there has been any error of law in the treatment of her application. This is especially so in circumstances where the wording of the decision letter made it clear that the Council knew that it had the exercise of "determining priorities between applicants in the conditional preference group".
24. Mr Johnson also helpfully reminded me of another set of remarks by Lord Neuberger in Holmes-Moorhouse v Richmond on Thames Borough Council [2009] UKHL 7, a decision about homelessness provisions, in which Lord Neuberger said:

"51 ..... a decision can often survive despite the existence of an error in the reasoning advanced to support it. For example, sometimes the error is irrelevant to the outcome; sometimes it is too trivial (objectively, or in the eyes of the decision-maker) to affect the outcome; sometimes it is obvious from the rest of the reasoning, read as a whole, that the decision would have been the same notwithstanding the error; sometimes, there is more than one reason for the conclusion, and the error only undermines one of the reasons; sometimes, the decision is the only one which could rationally have been reached. In all such cases, the error should not (save, perhaps, in wholly exceptional circumstances) justify the decision being quashed."

25. In relation to the adequacy of reasons, Mr Johnson cited the judgment of Cranston J in R (on Application of M) v Mayor and Burgesses of the London Borough of Hackney [2009] EWHC 2255 (Admin). At paragraph 34 of that judgment, the learned judge said:

"34 ..... When all the correspondence is read together it is plain that from the first reference to removal of the claimant 'from our system' the Council was applying its housing scheme's eligibility criteria.

35 As for the reasons given by the Council, in my view it was obvious to the claimant the basis on which the decision was being made. There was no procedural unfairness ..... So he would have known the considerations which led to the withdrawal of the offer and the background to the ultimate decision in the letter of November 2007 now challenged. However opaque to outsiders the correspondence might have been, it would have been obvious to the claimant the reasons for the Council's decision. In my judgment, the allegation of a failure to give reasons cannot be sustained."

26. With the principles ringing in my ears, I turn to their application in this case. Like Cranston J, I look at the documents in their context and at the whole picture. Letters from housing staff at the defendant's council are not to be passed as if they were statutory provisions, subject to the restrictive rules of statutory interpretation. The internal decision document (bundle page 128) of 26 August 2008, and the letter of 27 August 2008 (bundle page 131) suggest a restrictive approach. They even suggest the restriction of the exercise of discretion by a rule. They are certainly not felicitously phrased.
27. However if one turns to the decision letter of which review is sought (bundle page 138), the situation is different. One must bear in mind that it was a response to a letter which set out the domestic situation as the underlying context. The letter from the council's Mr Savill of 17 September 2008 states:

"I write in response to your letter sent to the council's legal services division dated 9 September 2008."

It continues later:

"Miss Osei falls within the latter group [additional preference categories] by virtue of the decision to award her application emergency rehousing status on grounds of domestic violence. One of the factors which the scheme may allow to be taken into account is 'any behaviour of the applicant or a member of his or her household which affects his or her suitability to be a tenant.'.

The council's position is that Miss Osei's large outstanding debt relating to her former tenancy represents such behaviour. We are therefore taking this into account when determining priorities between applicants in the additional preference group. This, in turn, means that Miss Osei is highly unlikely to receive an offer of accommodation whilst this debt remains given the large number of other households in the additional preference group who do not have any such debts.

I appreciate that the council should always consider exercising discretion in exceptional circumstances. However because Miss Osei has made no attempts to reduce the outstanding debt or even enter into an agreement with the council to reduce the debt, we are not minded to exercise such discretion at the present time."

28. I have in mind, too, for I consider that it assists me, the witness statement by Mr Savill, to which I referred earlier. At paragraph 23 he says:

"I have before me all of the information which the claimant provided in the documents to which I have referred and consider her housing file, all of which contain the background to her application. That information demonstrated the domestic violence that the claimant had suffered and arrears and her attitude to arrears. Having looked at that material, I took the view that because the claimant had made no attempt to reduce the debt we are not minded to exercise the discretion. Although not phrased as such, this was essentially a judgment taking into account all of the claimant's circumstances and the overall consequences of the scheme, and weighing one against the other to reach a conclusion. It was my view that the property-related debt provisions applied in the claimant's case and there is nothing exceptional in her circumstances which justify departing from those provisions."

29. In my judgment that describes a rational exercise of the discretion vested in the council with reference, as the decision letter also makes clear, to the whole file. That does not mean that every rational person exercising that discretion would necessarily reach the same conclusion. The question is whether it is a lawful conclusion.
30. Having applied the facts to the principles, in all the circumstances, in my judgment, (a) the full circumstances were taken into account and a discretion was exercised; (b) in the exercising of the discretion the council's allocation policy was applied in a lawful way; and (c) given that there is no statutory requirement to provide reasons in any particular form, sufficient reasons were given in the circumstances and, in the context, which included the knowledge which the claimant and her solicitors had.
31. It follows from what I have said that I therefore decline to grant the relief sought.
32. MR JOHNSON: I am grateful. The only question that remains is one of costs. Miss Osei is, as I understand it, publicly funded. We would ask for the usual costs. I think liability cannot be disputed. You have dismissed the claim. Therefore we would be entitled to our costs, that the claimant do pay the defendant's costs, not to be enforced without an assessment of her ability to pay under the - - - - -
33. DEPUTY JUDGE: Without leave of the court.
34. MR JOHNSON: Yes, without leave of the court.
35. MISS MEACHER: I do not think I can resist that, unfortunately, save to ask for detailed assessment.
36. DEPUTY JUDGE: I will order that costs be awarded to the

defendant but, given the fact that the claimant is legally aided, that it not be enforced without assessment of the claimant's financial position and further order of the court.

37. MR JOHNSON: We need to say expressly detailed assessment of publicly funded costs.
38. DEPUTY JUDGE: Detailed assessment of publicly funded costs.