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
		03/08/2016

Mr ter Haar QC :

1. In these proceedings the Claimant challenges a decision dated the 12^th November 2015 by the Defendant's Housing Appeals and Review Panel ("HARP") to refuse the Claimant's appeal against the decision of the Housing Needs Review Panel ("HNRP") not to offer the Claimant a new tenancy of 33 Duncombe Close, Luton, following the death of the Claimant's father.
2. Following an initial refusal of permission on paper, permission to apply for Judicial Review was granted by Gilbart J. on the 22^nd June 2016 limited to ground 4 of the original application only, namely that the Council did not deal with the fact that Jake Town was part of the application.
3. The tenancy of 33 Duncombe Close, a 2 bedroomed property, was granted to the Claimant's mother and father, jointly, in 1997.
4. The Claimant moved into the property in 1997 at the age of 14.
5. In 2011, the Claimant entered into a civil partnership with Mr. Philip Town. By this time, the Claimant's mother had become unwell. The Claimant and Mr. Town cared for both of the Claimant's parents.
6. In October 2011, the Claimant's mother was diagnosed with terminal lung cancer and the Claimant gave up employment to care for his parents. The Claimant's mother died in June 2012.
7. The Claimant's father then became the tenant of the property by survivorship.
8. In March 2015, Mr. Town's brother, Jake Town, moved into the property following the breakdown of a long-term relationship and the loss of his home. Jake Town has complex health issues including brittle diabetes and frequent episodes of diabetic ketoacidosis necessitating emergency hospital admissions.
9. There is before the Court a letter from Jake Town's G.P. which addresses the implication for Jake Town's health if he were to become homeless. As is pointed out by Mr. Birks on behalf of the Defendant, it does not say that he cannot live on his own.
10. From December 2014, the Claimant's father had become progressively unwell. On the 12^th May 2015, he had a chest X Ray, following which he was admitted to hospital. On the 15^th May 2015, the Claimant was informed that his father had terminal lung cancer. His father dies on the following day, the 16^th May 2015.
11. The Claimant had and has no statutory right of succession to the tenancy. The Defendant served a Notice to Quit which expired on the 3^rd August 2015.
12. In considering whether to allow the Claimant to take over the tenancy, the Defendant had to consider its wider obligations.
13. In common with all housing authorities, the Defendant has a much greater demand for its housing than it can supply. The evidence before me was that there were at the material time over 4,400 households in Luton which had sought help from the Defendant and were in need of 2 bedroom accommodation. The greatest need, and the greatest shortage, was of 2 bedroom accommodation.
14. The Defendant's case is that it owed duties, and sometimes a duty to provide accommodation, to the members of all those 4,400 households. The Defendant says that it was mindful of the needs of those households.
15. The Defendant has a published Choice Based Lettings Allocations Policy. Paragraph 4.4 of the Policy provides as follows:

"Non-Successors

If a tenant of the Council dies and there is another member of the household who does not have the right to succeed but who:

Had been living with the tenant for the year before the tenant's death (this does not include lodgers or B&B guests) or

Had been resident and looking after the tenant for the year before the tenant's death or

Has lawfully accepted responsibility for the tenant's dependants

The Council will consider offering a new tenancy where the landlord is satisfied this is a priority when viewed in the context of other demands on housing needs in the area. If a new tenancy is considered, this could be either in the same accommodation or in suitable alternative accommodation."

16. To resume the narrative: the Defendant having served the Notice to Quit, the Claimant provided medical evidence to the Defendant's HNRP which explained that the Claimant suffered from chronic depression and advised that eviction from the property could exacerbate his condition. The medical evidence also explained that Philip Town also suffered from chronic depression. Again in his case the advice was that eviction from the property could exacerbate his condition.
17. The HNRP considered the Claimant's submission. It decided that Jake Town was not a permanent member of the household. However the HNRP did recognise the circumstances of the Claimant and his civil partner and offered them the lease of a one bedroom property.
18. The Claimant subsequently went before the HNRP for a second time. The Claimant provided further submissions, including a submission from Jake Town, in which he stated that he would be asking his GP to provide a letter.
19. Although the Claimant provided a letter from Jake Town's GP, this was not placed before the HNRP as the Defendant's Housing Officer was absent from work when it was received.
20. In a decision dated the 30^th July 2015 the HNRP decided as follows:

"Panel has considered case under section 4.4 of the Council's Allocation Policy. Having considered prevailing local conditions, it is agreed that an allocation of a one bed property in Runfold or Saints area will be made to the non-successor by way of a direct let. Partner's brother is not considered to be a permanent member of the household.

Having reviewed –

All paperwork submitted by and on behalf of Mr. Jones;

The contents of the Council's published Allocations Policy;

The Council's Housing Landlord and Housing Benefit records

The Panel ratified its original decision.

It is felt that an offer of a one bedroom unit of accommodation in the current area is reasonable and fully complies with the published Allocations Policy. The Panel is mindful that neither Mr. Jones's partner or partner's brother were declared as residing at the property for the purposes of Housing Benefit calculations immediately prior to the tenant's death. As such, Jake Town is not considered to be a relevant member of the household for the purposes of considering an allocation of accommodation. Case therefore needs to be forwarded to Appeals Committee for review of case by Members of the Council."

21. As the HNRP had not changes its position, the Claimant appealed to the HARP. The HARP refused to allow the appeal. The appeal decision was dated the 12^th November 2015. The HARP had a report before it, of which the following passages are relevant:

"5. In recognition of the fact that Jack lived in the property and was the main carer for his father rather than require him to seek his own accommodation, the Housing Needs Review Panel have agreed to make a direct let of a one bedroom property to Jack and his partner Philip. It was agreed that this would be within the Runfold or Saints area of Luton as this area is where Jack had resided most of his life. No provision was made for Jack's partner's brother as he had only moved into the property two months before the death of Mr. Peter Jones and was not considered part of the family unit. However, it was acknowledged that should he apply to be rehoused in his own right he could be given priority as he was threatened with homelessness and he therefore had a reasonable chance of securing at least a bedsit within social housing within a period of six months or could be assisted with a deposit in the private rented sector for the same.

6. The Council has a duty to ensure that it makes the best use of its housing stock and also to minimise the risks to and impact on households from legislative changes which aim to reinforce this approach such as the introduction of the Spare Room Subsidy (or Bedroom Tax), and the Benefit Cap.

7. The greatest demand for housing within Luton is for two bedroom properties. At present there are 371 households awaiting a transfer and a further 3,051 households on the Housing Waiting List. Many of these households have been waiting for more than 3 years.

8. It is also the case that we have numerous households in Temporary Accommodation to whom we have a Duty who are accruing arrears as a result of the Benefit Cap. These families are struggling with the expectation to pay the rental shortfalls not covered by Housing Benefit and cannot be expected to secure accommodation within the private sector as our decision on priority was made prior to the Legislation which permitted discharge into the private sector. Every property we give to a household where we have no legal obligation denies the opportunity to a family currently on the list under these circumstances.

…

17. There are three options available to the Panel as follows:

1. Decide that Mr. Jack Jones' circumstances do warrant a deviation from the Council's normal policy and advise the Service Director Housing to offer him a new tenancy at 33 Duncombe Close. This would of course create new succession rights.

2. Reject the appeal on the basis that the circumstances are not exceptional: Jake is not a dependant of any of the household members and uphold the decision of the Service Director Housing, to make a direct offer to the couple Jack and Philip of a one bedroom property.

3. Refer the matter back to the Housing Needs Review Panel for further specified investigations to be carried out prior to making a decision."

22. The HARP adopted option 2 above. A letter was sent on the 16^th November 2015 confirming that decision.
23. In Grounds for Judicial Review, this decision is challenged in the following terms:

"24 . The HARP failed to consider Mr. Jake Town adequately: The HARP incorrectly decided that Mr. Jake Town should not be considered a permanent member of the household.

25 . The HARP set a threshold that Mr. Philip Town and Mr. Jake Town needed to be declared by the Claimant as residing at the Property for the purposes of Housing Benefit calculations. This set the threshold too high for the determination of whether either are members of the household.

26. Further or alternatively, the HARP decided that Mr. Jake Town was not dependent on the Claimant and Mr Philip Town, despite this conclusion not being open to them on the evidence before them.

27. Further or alternately, the Defendant failed to take into account adequately the Article 8 rights of the Claimant and/or Mr. Philip Town and/or Mr. Jake Town by adopting a construction of Article 8 rights which was too narrow and did not recognise that Mr. Jake Town was a member of the Claimant's family.

28. In the premises, the Defendant failed to conduct the appropriate balancing exercise in assessing the proportionality of its decision-making exercise; and/or failed to exercise the appropriate level of anxious scrutiny as to its decision-making."

24. As the Defendant points out, the case is somewhat unusual in that the prime point of concern now is the position of Jake Town who is not the Claimant in these proceedings nor was he the applicant for a tenancy before the HNRP and HARP. However, it is clear that both before the HNRP and the HARP the point was clearly put forward upon the basis that Jake Town was a dependant of the Claimant and his partner and should therefore be regarded as part of the Claimant's household. The consequence is, so it is said, that a one bedroom property is inadequate.
25. The Defendant in answer points to its policy which I have set out at paragraph 15 above, and argues that in terms of that policy Jake Town would not be regarded as part of the deceased tenant's household, as he had not resided in the property for a year as required by that policy. This seems to me to be right as far as it goes, but is slightly off the point which is that it having been accepted that the Claimant fell within the policy guidelines to justify the offer of accommodation, whether the accommodation to be offered should be one or two bedroomed.
26. As set out in the Grounds, the Claimant relies upon Article 8 of the ECHR. In that regard I have been helpfully referred to two decisions of the Court of Appeal. In the first, Kugathas v The Secretary of State for the Home Department [2003] EWCA Civ 31 at paragraph 14 Sedley L.J. said this:

"Mr. Tam relies in particular on the Commission's decision in S v United Kingdom (1984) 40 DR 196. At page 198 of the report, the Commission said:

"Generally, the protection of family life under Article 8 involves cohabiting dependents, such as parents and their dependent, minor children. Whether it extends to other relationships depends on the circumstances of the particular case. Relationships between adults, a mother and her 33 year old son in the present case, would not necessarily acquire the protection of Article 8 of the Convention without evidence of further elements of dependency, involving more than the normal emotional ties."

This, while it is not black-letter law, sets out what I would accept is a proper approach."

That decision was discussed and followed by the Court of Appeal in Singh v The Secretary of State for the Home Department [2015] EWCA Civ 630.

27. Applying those authorities, it is clear that in exceptional cases an adult living with other members of his or her family and dependent upon those other members of the family may be regarded as being part of a "family" so as to engage the protections granted by Article 8. Whether that is so or not will depend upon the particular facts of each case.
28. In this case, as I have pointed out at paragraph 9 above, the letter from Jake Town's G.P. which has been placed before me and was as I understand it placed before the HARP does not establish that Jake Town is dependent upon the Claimant and Philip Town in the sense that he, Jake Town, could not live independently.
29. On the other hand, a letter from Jake Town to the Defendant dated the 18^th August 2015 does make that assertion, saying that he needs their close attention because of the risks attendant upon his diabetes.
30. In my view, the HARP was entitled to form the view based upon the G.P.'s letter that the real risk to Jake Town would be if he were made homeless. In that regard I pressed Mr Birks as to the Defendant's position as to Jake Town's accommodation. He told me that if as a result of these proceedings the Claimant and his partner go into one-bedroom accommodation, and if in those circumstances Jake Town were to take up accommodation in the living room of that one bedroom accommodation, the Defendant would be obliged to consider any application on behalf of Jake Town for accommodation as a homeless person. In such an application Jake Town would have to show that he had no accommodation reasonably available to him. Living on a sofa in the living room of a one-bedroom flat would not in itself prevent him being regarded as homeless.
31. Clearly, that is far from being a copper bottomed guarantee of how the Defendant would treat an application for accommodation as a homeless person, but it is, in my view, sufficient to answer the concerns expressed by the G.P.
32. In my judgment, the HARP was entitled on the evidence before it to take the view that Jake Town's medical condition was not sufficient to render him a dependent member of the family of the Claimant.
33. Apart from the point as to his medical condition, the other facts before the HARP were such as to justify fully its decision. Jake Town had only moved into the property very shortly before Mr. Jones senior died. In my view that period of residence was so short that the HARP could legitimately take the view that Jake Town was not a member of the household.
34. In a better world, a tenancy of a two-bedroom property would be desirable in order that the Claimant and his partner could provide support and companionship for Jake Town. However the pressures upon the Defendant's housing stock are acute and hard decisions have to be made.
35. This Court can only interfere on well established public law grounds. In my view, although immensely disappointing to the Claimant, his partner and Jake Town, the decision made by the HARP was a decision which it was entitled to make on the materials before it.