QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| The Queen (On the Application of Mr Roger Plant)
|- and -
|Somerset County Council
- and -
Taunton Deane Borough Council
Mr Andrew Byass (instructed by Somerset County Council) for the First Defendant
Miss Emily Orme (instructed by Taunton Dean Borough Council) for the Second Defendant
Hearing dates: 21st April 2016
Crown Copyright ©
MRS JUSTICE CHEEMA-GRUBB:
1. Whether TDBC should be given permission to contest this claim out of time and to seek revocation of the mandatory order made against it in March 2015.
2. C's challenge to SCC's continuing decision to seek an order for possession in the Taunton County Court of the land upon which he lives. Those proceedings having been stayed pending a decision on this claim. SCC seeks final resolution of the claim despite C's outstanding challenge to the purported discharge of TDBC's statutory duty.
a) 16th January 2013 SCC issued a notice to vacate to C requiring him to leave its land by noon on 21st January 2013.
b) 18th January 2013 C made an application to join TBDC's Housing waiting list in which he included the following statement describing his health issues
"I have severe tinnitus and damaged hearing caused by my time in the RAF this causes me severe stress if I am near ANY other source of noise. I am under the care of the Asperger's specialist service CTN Kay Griffin . I have poor mobility and get full rate DLA. I am not able to tolerate noises and odours from natural domestic sources as they cause me severe stress.
I have to find somewhere away from "normal" domestic noises and odours including radios TV's yappy dogs children playing lawnmowers air fresheners smells bonfires etc. These all cause me severe stress by overloading my senses. I have been trying since 1991 to find such a suitable living situation. All of my efforts have been overridden by LA- housing and planning officials".
c) 7th July 2013 Proceedings for trespass were issued by SCC in Taunton County Court. The claim for possession was adjourned on a number of occasions by agreement (see below) and remains stayed pending the conclusion of these proceedings against SCC.
d) 2nd August 2013 C went to TDBC's Housing Options Department and stated that he was about to become homeless because SCC had issued repossession proceedings. He was offered interim accommodation pursuant to s.188 (1) Housing Act 1996 while his housing application was being investigated but he preferred to stay where he was.
e) 23rd August 2013 was to be the initial hearing of the claim for possession in Taunton County Court but C was unwell and the hearing was adjourned by agreement to 24th October 2013.
f) 3nd October 2013 TDBC issued a decision on C's homelessness application and accepted that he was unintentionally homeless, eligible for assistance and in priority need. As a consequence the Taunton County Court proceedings were adjourned to be listed on 13th December 2013.
g) 10th December 2013 A Pre-Action protocol letter was sent to SCC, which responded on 12th December 2013.
h) 13th December 2013 the possession proceedings were stayed pending resolution of this claim.
i) 20th December 2013 A Pre Action Protocol letter was sent to TDBC requiring a response by 4pm Thursday 3rd January 2014. It will be apparent that the time allowed for a response was extremely short and over the holiday period. However TDBC responded by letter dated 24th December 2013 enclosing C's housing file, which had been requested.
j) 1st January 2014 C issued this claim against SCC and TDBC. It will be noted that this was no more than three months after TDBC had accepted a housing duty to C. Form N461 states that C sought the following remedies:
a. A quashing order in respect of SCC's decision to seek and obtain, and/or to continue to seek and obtain, possession of the land (at Otterford B); and
b. A declaration that it would not be lawful for SCC to seek to obtain and/or to enforce any possession order obtained in respect of the land unless and until TDBC provided C with suitable alternative accommodation in satisfaction of their duty under Part VII Housing Act 1996; and/or
c. A mandatory order requiring TDBC to provide C with suitable alternative accommodation in satisfaction of their duty under Part VII Housing Act 1996.
k) 9th January 2014 C wrote to TDBC enclosing the grounds of claim in draft form with supporting documentation to follow.
l) 26th February 2014 An order was made by an ACO lawyer pursuant to delegated powers granting an extension of time for SCC to file and serve an acknowledgment of service to 3rd March 2014. This order was made upon application from SCC.
m) 3rd March 2014 SCC served an Acknowledgment of Service and summary grounds of Defence.
n) 4th April 2014 No Acknowledgment of Service or Defence were filed by TDBC. Mr Ben Emerson QC sitting as a Deputy High Court Judge granted permission for Judicial Review observing
"The Claimant, who is statutorily homeless, has an arguable case against the first Defendant that
(a) The decision to pursue possession proceedings is flawed on the ground that in the Claimant's case, having regard to his age and state of health, and having regard to the arguable failure of the second Defendant to discharge its statutory duty to re-house the Claimant, there are exceptional circumstances justifying the submission that eviction would be disproportionate;
(b) That the decision to pursue possessions proceedings is a continuing decision such that the claim is not to be regarded as out of time and/or the court should, in its discretion, extend time; and
(c) That the present claim is properly dealt with jointly with the claim against the second Defendant since they are clearly interlinked.
The second Defendant has accepted that it is under a duty to provide the Claimant with accommodation pursuant to Part VII of the 1996 Act, but has so far failed to discharge that duty, and has filed no acknowledgment of service or summary grounds to explain its position."
By way of case management directions both Defendants were directed to file and serve detailed grounds for contesting the claim and any written evidence within 35 days of service of the order and a Defendant wishing to file and serve a skeleton argument had to do so not less than 14 days before the date of the hearing of the Judicial Review.
o) 28th April 2014 Mr Roy Pinney, Legal Services Manager of TDBC emailed C's solicitor's in the following terms
"Further to your letters dated 28th March and April I can confirm that Borough Council is not contesting your client's claim. I apologise for my delay in providing this information"
It is to be noted that this concession is entirely unconditional and is provided by a Legal Services Manager.
p) 13th May 2014 The C's solicitor wrote to TDBC in the following terms
"We write further to Mr Pinney's email of 28th April 2014. We note that the Council is not contesting our client's above claim. We therefore assume you are happy for an order to be made as outlined in our client's Judicial Review claim. We would be grateful for your clarification on this matter and would also ask for confirmation as to how the council is to discharge its duty owed to our client."
q) 30th October 2014 C's solicitor wrote again to TDBC in the following terms
"We note that we have not received a response. We enclose herewith copy (letter dated 13th May 2014) and look forward to hearing from you as soon as possible. Please confirm what steps have been taken to provide our client with suitable accommodation considering that the Council is not contesting our client's claim."
r) 31st December 2014 SCC wrote to Taunton County Court indicating that the claim was to be heard on 4th March 2015 and in the circumstances seeking the County Court's direction that the resolution of its possession action should be delayed until the middle of May 2015.
s) 22nd January 2015 C's solicitor wrote to TDBC enclosing a copy of C's solicitor's draft second witness statement and exhibits. The statement provided an update since the issue of proceedings in January 2014. C sought agreement that the statement be admitted.
t) 4th March 2015 Upon the basis of an agreement between C and SCC that SCC would not pursue an order of possession against C until final determination of the claim and no objection from TDBC, Mr Justice Hayden made an order in the following terms:
"UPON hearing counsel for the Claimant and counsel for the first Defendant and
UPON the second Defendant neither attending nor being represented and
UPON the first Defendant agreeing not to seek to obtain or to enforce any order for possession in respect of the land known as Otterford B in issue in this claim until this claim is finally determined or until further order and
UPON the Claimant agreeing to use reasonable endeavours to engage with the second Defendant in respect of the second Defendant's discharge of its statutory duty to him under Section 195 of the Housing Act 1996
IT IS ORDERED THAT:
1. The second Defendant shall discharge its statutory duty to the Claimant under Section 195 of the Housing Act 1996 by no later than 4pm on 15th April 2015.
2. The second Defendant shall pay the Claimant's reasonable costs to be subject to detailed assessment if not agreed.
3. The claim against the first Defendant is stayed until further order. The Claimant and the first Defendant have liberty to apply to restore the claim any such application not to be made before 4pm on 6th May 2015"
Section 195 of the Housing Act 1996 is headed 'Duties in case of threatened homelessness' and provides:
(1)This section applies where the local housing authority are satisfied that an applicant is threatened with homelessness and is eligible for assistance.
(2)If the authority
(a) are satisfied that he has a priority need, and
(b) are not satisfied that he became threatened with homelessness intentionally,
They shall take reasonable steps to secure that accommodation does not cease to be available for his occupation.
C had not sought an order under s.195 but s.193 Housing Act 1996, which is headed 'Duty to persons with priority need who are not homeless intentionally'. It provides:
(1) This section applies where the local housing authority are satisfied that an applicant is homeless, eligible for assistance and has a priority need, and are not satisfied that he became homeless intentionally.
(2)Unless the authority refer the application to another local housing authority (see section 198), they shall secure that accommodation is available for occupation by the applicant.
(5)The local housing authority shall cease to be subject to the duty under this section if the applicant, having been informed by the authority of the possible consequence of refusal .refuses an offer of accommodation which the authority are satisfied is suitable for him and the authority notify him that they regard themselves as having discharged their duty under this section.
There is no duty to house an applicant once the housing authority has discharged its housing duty even if the applicant seeks a statutory review or an appeal to the County Court pursuant to s.204 Housing Act 1996.
C accepts that once TDBC has discharged its statutory duty to him, whether or not he is satisfied with the property, the claim against SCC will have to be withdrawn. He accepts that the legitimate purpose of the litigation is to obtain an offer of objectively suitable property from TDBC although it has been initiated because of the on-going actions of SCC which presents a continuing threat to C's possession of a home at Otterford B.
u) TDBC applied seeking an extension of the period specified in paragraph 1 of the order of Hayden J. The extension sought was until 15th June 2015. C objected to the extension but it was granted to 13th May 2015.
v) 29th April 2015 TDBC offered C accommodation under Part 6 of the Housing Act 1996. The accommodation was at 3 Ladyacre Staple, Fitzpaine in Taunton, Somerset: a one bedroom bungalow, "the Ladyacre property". TDBC notified him that it regarded itself as having satisfied its housing duty to him.
w) 15th May 2015 C refused the offer of accommodation and sought a review available to him under the Housing Act 1996. C subsequently sent further medical evidence in support of the application for a review and a psychiatrist was instructed to provide a report.
x) 24th June Dr Christie, a psychiatrist saw C and provided a report which was sent to TDBC on 17th July 2015.
y) 28th July 2015 TDBC indicated a review was being carried out.
z) 14th September 2015 the independent reviewer provided a "minded to" letter seeking further oral or written representations by 21st September. This was to alert C to the likelihood that the review would uphold TDBC's offer as that of a suitable property. This period was extended at the request of C.
aa) 12th November 2015 the Court having sought to list the claim in respect of SCC which had been stayed in March all three parties agreed a consent order seeking to delay a hearing fixed by the Court for 19th November. The Court did not approve the proposed consent order.
bb) 19th November 2015 Having heard from counsel for SCC and C (TDBC choosing yet again not to attend and to make no representations) Miss Amanda Yip QC, sitting as a Deputy High Court Judge made an order in the following terms:
4. The first Defendant's application to restore the Claimant's claim against the first Defendant is Granted;
5. The Claimant has permission to file and serve the evidence by 4pm on 10th December if so advised;
6. The first Defendant has permission to file and serve further evidence by 4pm on 7th January 2016 if so advised;
7. The Claimant shall file and serve a supplementary trial bundle by 4pm 14th January 2016;
8. The Claimant and first Defendant to file and serve skeleton arguments by 4pm on 28th January 2016;
9. The Claimant to file and serve an agreed bundle of authorities no later than three days before the trial;
10. The Claimant's claim against the first Defendant to be listed for a trial with a time estimate of one day on the first available date after 4th February 2016;
The order was predicated upon the observation that TDBC has "failed to comply with paragraph 2 of the order of Hayden J of 13th May 2015 and wishing to impress upon the second Defendant the need to so comply urgently".
cc) 23rd November 2015 The independent statutory housing review upheld the offer of the Ladyacre property and concluded that the full housing duty on TDBC has been discharged. This decision was to be the subject of a statutory appeal in the County Court which was settled by consent once it became apparent that the reviewer had failed to take into account the psychiatric report on C from Dr Christie.
dd) 16th March 2016 TDBC informed C that it had revised its approach to this judicial review and intended to seek permission to contest the claim. On the same date it informed C that a fresh review of the decision to offer him the Ladyacre property in discharge of its statutory duty would be undertaken. The current independent statutory review is due to be completed by the end of May 2016.
ee) 8th April 2016 TDBC lodged detailed grounds in opposition and witness statements.
ff) 13th April 2016 TDBC's skeleton argument was provided to the court and emailed to counsel for C.
gg) 18th April 2016 A skeleton argument in response to the applications now made by TDBC was lodged by C.
a) What is the seriousness or significance of the failure to comply with the rule Practice Direction or Court Order?
b) Why did that failure occur?
c) What are all the circumstances of the case so that the application for relief can be dealt with justly?
(7) A power of the court under these Rules to make an order includes a power to vary or revoke the order.
(1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need
(a) for litigation to be conducted efficiently and at proportionate cost; and
(b) to enforce compliance with rules, practice directions and orders.
(2) An application for relief must be supported by evidence.
(1) The court may proceed with a trial in the absence of a party but
(a) if no party attends the trial, it may strike out(GL) the whole of the proceedings;
(b) if the claimant does not attend, it may strike out his claim and any defence to counterclaim; and
(c) if a defendant does not attend, it may strike out his defence or counterclaim (or both).
(2) Where the court strikes out proceedings, or any part of them, under this rule, it may subsequently restore the proceedings, or that part.
(3) Where a party does not attend and the court gives judgment or makes an order against him, the party who failed to attend may apply for the judgment or order to be set aside.
(4) An application under paragraph (2) or paragraph (3) must be supported by evidence.
(5) Where an application is made under paragraph (2) or (3) by a party who failed to attend the trial, the court may grant the application only if the applicant
(a) acted promptly when he found out that the court had exercised its power to strike out or to enter judgment or make an order against him;
(b) had a good reason for not attending the trial; and
(c) has a reasonable prospect of success at the trial.
(1) Any person may apply for permission
(a) to file evidence; or
(b) make representations at the hearing of the judicial review.
(2) An application under paragraph (1) should be made promptly.
a) The chronology of TDBC's involvement in the claim speaks for itself and cannot be explained away. TDBC did not expend resources contesting the claim, believing that it was principally aimed at SCC and that it was likely to be compromised. TDBC was already seeking to discharge its duty to C. More recently, having obtained external legal advice its view of the claim has changed.
b) Although TDBC is in substantial breach of the rules it seeks relief from sanction. The failure to comply with the rules and directions as to filing and serving an acknowledgment of service etc are serious and significant. Nonetheless the justice of the case requires permission for relief to be given because:
1. There is a challenge to the jurisdiction of the court to make the order made by Mr Justice Haydon on 4th March 2015. The order is ambiguous (referring to s.195 rather than s.193) and the court may have proceeded under a misapprehension of the relevant housing law.
2. The court was and is without important relevant factual information relating to the claim against TDBC. The court may have been misled when it exercised its jurisdiction to make the order it did because it was not told that TDBC had been actively seeking to discharge its homelessness duty towards the claimant and the Claimant had stated clearly his intention to remain at the site where he is rather than move. Rather the court must have proceeded on the basis that TDBC had not made any progress towards discharging its housing duty.
c) In consideration of the Denton v White principles the third stage of the test is significant in this case and justice requires the applications to be granted.
d) The order of Mr Justice Hayden should be set aside and C should be awarded no remedy because he has an alternative remedy, namely a statutory appeal pursuant to the Housing Act 1996 in the County Court, if the current independent review upholds TDBC's offer of the Ladyacre property as discharging TDBC's housing duty to C.
Decision on TDBC's applications
C's challenge to SCC's continuing decision to seek an order for possession in the Taunton County Court
Is C's claim out of time?
Should the claim be dismissed because there is an alternative remedy?
Does pursuing a possession order in the County Court amount to a disproportionate, irrational and unlawful interference with C's rights?
"The suggestions put forward on behalf of the Equality and Human Rights Commission that proportionality is more likely to be a relevant issue "in respect of occupants who are vulnerable as a result of mental illness, physical or learning disability, poor health or frailty", and that "the issue may also require the local authority to explain why they are not securing alternative accommodation in such cases" seems to us well made."
"The question is always whether the eviction is a proportionate means of achieving a legitimate aim."