QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
Sitting as a Deputy High Court Judge
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THE QUEEN (on the application of Hindis Abdulrahman) |
Claimant |
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- and - |
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THE LONDON BOROUGH OF HILLINGDON |
Defendant |
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Ms Stephanie Smith (instructed by the London Borough of Hillingdon Legal Services) for the Defendant
Hearing dates: 5 October 2016
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Crown Copyright ©
The Deputy Judge (Neil Cameron QC):
Introduction
a) The Defendant adopted the wrong test when considering the Claimant's application.
b) In the event that the Defendant applied the right test, the decision making process was irrational.
The Facts
i) "Whilst this authority accepts that your client's marriage has ended, the Council does not accept that this is an intervening change of circumstances which has caused a new instance of homelessness justifying a new application."
ii) "…………our client's decision is compliant with the court's guidance in Tower Hamlets LBC v Rika Begum EWCA Civ 340. The facts of your client's case are exactly the same as they were when she made a joint application with her husband in 2013. The reason for homelessness remains the same. We do not accept that a reduction in the family composition merits the acceptance of a new homelessness application."
iii) "Furthermore, the loss of temporary accommodation is as a result of our finding that your client is homeless intentionally as opposed to the relationship ending. It is not a new instance of homelessness in itself."
iv) "…we will not be accepting a new application from your client…"
The Defendant's Decision
The Legal Framework
183.—Application for assistance.
(1) The following provisions of this Part apply where a person applies to a local housing authority [ in England] 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).
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) ……………
(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.
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188.—Interim duty to accommodate in case of apparent priority need.
(1) 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.
190.—Duties to persons becoming homeless intentionally.
(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 [(or secure that he is provided with) advice and assistance] in any attempts he may make to secure that accommodation becomes available for his occupation.
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191.—Becoming homeless intentionally.
(1) A person becomes homeless intentionally if he deliberately does or fails to do anything in consequence of which he ceases to occupy accommodation which is available for his occupation and which it would have been reasonable for him to continue to occupy.
Duty to inquire
The problem is this. When a local authority, having discharged their statutory duties in relation to one application for accommodation, then receive a second application from the same applicant, are they 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 their statutory duty in relation to Mrs. Fahia's application in 1994, could they decide as they purported to do that there was no fresh application before them 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 Ferdous 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 be 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.
i) Held that the reasoning in Fahia in relation to section 62 of the 1985 Act is equally applicable to the 1996 Act (Neuberger LJ (as he then was) at paragraph 48).ii) Rejected the argument that a further requirement, such as establishing a material change of circumstances, could be implied before a local authority was obliged to consider a second application under sections 183 and 184 of the 1996 Act (Neuberger LJ at paragraph 50).
iii) Held that it is for the applicant to identify in a subsequent application, the facts which are said to render the application different from earlier applications. If no new facts are revealed the application may, and normally should, be rejected (Neuberger LJ at paragraph 59).
iv) Held that in a case where the new application purports to reveal new facts, if the facts are not new, or are fanciful or trivial, the authority may, and normally should, reject the application (Neuberger LJ at paragraph 60).
v) Held that in a case where a new application appears to reveal new facts, which are neither trivial or fanciful the authority must treat the subsequent application as a valid application (Neuberger LJ at paragraph 61).
vi) Provided guidance on the comparison to be made when considering whether a later application is based on exactly the same facts as an earlier application. At paragraph 46 Neuberger LJ stated:
[46] Accordingly, in order to check whether a subsequent purported application is based on "exactly the same facts" as an earlier application, the authority must compare the circumstances as they were at the time when the earlier application was disposed of (i e when it was decided or when the decision was reviewed) with those revealed in the document by which the subsequent application is made (and any other associated documentation). This should prove less onerous on the authority, and should involve less delay and uncertainty for the applicant, than if the comparison was with the circumstances as they are discovered after inquiries by the authority to be after receipt of a subsequent application.
The Grounds of Challenge
i) In refusing to accept the Claimant's application, the Defendant misdirected themselves as to the correct test to be applied, namely whether the application was based upon exactly the same facts at the previous application.ii) If the Defendant applied the correct test, the decision to refuse to accept the application is irrational.
Ground 1
Ground 2
i) The Claimant's relationship with her husband had come to an end. The 2016 application was made by the Claimant alone. The application made in 2013 was made jointly by the Claimant and her husband.ii) The 2016 application was based upon a family/household comprised of fewer people. At the time of the application the Claimant had three fewer dependent children than in 2013.
iii) When she made the 2016 application, the Claimant had spent over two years in temporary accommodation.
i) That if relevance is the test, new facts are those which are relevant to a homelessness application per se, not facts which are relevant in the sense that they make a material difference to the basis upon which the original application was made.ii) If, in Rikha Begum (at paragraph 54) an increase in the number of people living in a household was considered to be a new fact, it follows the decrease in household size in this case must be a new fact.
iii) If in Fahia the second application was considered to be a new application as Ms Fahia relied upon a new fact, namely her eviction from her temporary accommodation in a guesthouse, in this case the Claimant's eviction from temporary accommodation provided by the Defendant's social services department must be considered to be a new fact.
iv) It is wrong to say that because a new application is not based upon a fresh cause of homelessness it is not a new application.
i) The fact that the second application was made by the Claimant alone was irrelevant as it did not go to any consideration which is relevant to making a decision under Part VII of the 1996 Act, and in particular whether she is homeless, eligible for assistance and has a priority need for housing.ii) The fact that the Claimant was separated from her husband has no relevance to the making of a decision under Part VII of the 1996 Act.
iii) The fact that the Claimant has fewer dependent children is not relevant and/or is fanciful or trivial, as the only factor that is relevant is whether the Claimant has dependent children not the number of dependent children.
iv) The fact that the Claimant had ceased to be provided with temporary accommodation by the Defendant's social services department was not relevant as the Claimant was homeless when she was evicted from 101, Tudor Road and remained homeless.
Conclusion