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
		17 May 2017

Mrs Justice Lang :

1. The Claimant has renewed his application for permission to apply for judicial review of the decision of the Defendant dated 18 October 2016 to exclude him from its housing register under Part 6 of the Housing Act 1996.
2. Pursuant to the order of May J., dated 19 April 2017, the Claimant attended the oral hearing by video link from Woolwich Crown Court. A medical report dated 2 March 2017 from Dr Gaete, Specialty Doctor in Psychiatry at Oxleas NHS Foundation Trust, advised that he was not fit to attend a court hearing in person because he suffers with "severe and enduring mental illness". He has been diagnosed with depression, anxiety, post-traumatic stress disorder, and emotionally unstable personality disorder.
3. The Claimant's application for permission to apply to commit the Defendant for contempt was listed on the same occasion as the Claimant's renewed application for permission to apply for judicial review, as ordered by May J.. However, the hearings were conducted separately because the Defendant declined to take any part in the judicial review claim, on the grounds that it was not appropriate for it to waste further public funds on a completely meritless claim. It did not file an Acknowledgment of Service.
4. Permission to apply for judicial review was refused on the papers by HH Judge Coe QC, sitting as a Deputy High Court Judge, on 20 February 2017. After reviewing the history, she concluded that this claim was an abuse of process since it raised essentially the same issues as previously raised by the Claimant in other proceedings. In relation to the grounds not previously raised, she found that the Claimant had no arguable case.
5. HH Judge Coe QC also refused the Claimant's application for disclosure of documents. An urgent interim application for disclosure of documents had earlier been refused by Lavender J. on 16 January 2017, on the papers.
6. Following refusal of permission by HH Judge Coe QC, the Claimant applied to renew his application for permission. However, on 18 April 2017, he filed a notice of discontinuance in respect of the following grounds pleaded in his Statement of Grounds and Additional Grounds: (1) perversion of the course of justice; (2) res judicata; (3) perversity and irrationality; (4) breach of the Housing Act 1996; (5) breaches of the Children Act 2004 and the ECHR. He stated that he wished to continue with the following grounds in his claim form:

i) Unlawfulness and misapplication of the Defendant's Housing Allocation Scheme, resulting in the decision of 18 October 2016 excluding the Claimant from the housing register (pleaded in paragraphs 1 to 9 of the Statement of Grounds);

ii) Violation of the Data Protection Act 1996 (pleaded in paragraphs 10 to 12 of the Statement of Grounds);

iii) Violation of the Freedom of Information Act 2000 (pleaded for the first time in the Grounds for Renewal).

History

7. The Claimant was born in Nigeria on 20 July 1970, and is resident in the UK.
8. On 16 January 2009, the Claimant was sentenced to 7½ years imprisonment for the offence of being knowingly concerned in the evasion of a prohibition or restriction on the importation of a Class A drug. He entered a guilty plea. A confiscation order was also made.
9. The Claimant was released from prison in August 2012, and submitted an application to join the Defendant's housing register, disclosing that he had just been released from prison. The application was approved and he was placed on the register in December 2012. His address history on the Defendant's records listed his prison addresses between November 2008 and August 2012.
10. On 10 September 2014, the Claimant was sentenced to 7 years imprisonment by the Dublin Circuit Court in the Republic of Ireland for possessing a controlled drug with intent to supply. The last four years of the term were suspended.
11. The Claimant was transferred to a UK prison in August 2015. Prior to his release, the Prison Service made a homeless application referral to the Defendant. Following his release from prison on 13 April 2016, the Defendant refused to provide him with temporary accommodation.
12. The Claimant was admitted to a psychiatric hospital on 20 April 2016 and subsequently discharged.
13. The Defendant's Housing Options and Support Services Form, dated 18 April 2016, set out the Claimant's offending history stating that he had "2 x drug smuggling offence" in 2008 and 2014, and referred to the length of the sentences imposed and the time spent in prison for each offence.
14. On 27 April 2016, the Defendant's Allocation Team wrote to inform the Claimant that:

"…the council has decided to exclude your details from the housing register for the following reasons: due to you not meeting the five year residency criteria and your past offences. The Council will exclude from the register applicants who have been guilty of unacceptable behaviour which makes them unsuitable to be a tenant. Unacceptable behaviour is any criminal or anti-social behaviour, or any significant breach of tenancy conditions such as serious rent arrears."

15. The Claimant appealed against the decision. His appeal was considered and dismissed by the Defendant's Case Review Panel. The decision letter, dated 29 June 2016, informed him that his appeal against exclusion from the housing register had been unsuccessful because "….you do not meet the 5 year residency rule and there is evidence of a previous address in Glasgow prior to prison and your offences are considered to be anti-social". The minutes of the meeting stated that he was currently released on licence (in prison for drug smuggling offences) which did not expire until 21 May 2017.
16. On 28 July 2016, the Claimant sent a pre-action letter warning the Defendant that he intended to apply for judicial review of its decision.
17. On 2 August 2016, a copy of the Claimant's criminal record from the Police National Computer ("PNC") was emailed to Ms Sewell, Access and Allocations Manager, and another housing officer. It showed a Glasgow address for the Claimant, and gave details of the two convictions I have referred to above.
18. On 3 August 2016, Ms Elliott, Senior Housing Lawyer, wrote to the Claimant in response to his pre-action letter stating that the Defendant would withdraw the previous decision and carry out a fresh review by 23 August 2016. She confirmed that the decision related to exclusion of a new application, as his previous registration was cancelled in December 2014, when the Claimant failed to renew it. The Claimant was previously unaware it had been cancelled and had not made a new application.
19. On 23 August 2016, Ms Sewell emailed the Claimant advising that the review would not be completed until 9 September 2016, and saying that "it has also been decided that your past conviction will not be taken into account in considering your eligibility to join the housing register".
20. On 14 September 2016, Ms Sewell wrote to the Claimant informing him that the Case Review Panel had upheld his appeal and decided that he could join the housing register because "you fall within a reasonable preference category as you are homeless and are therefore exempt from the Council's five year continuous residency requirement to join the housing register". He was to be placed in Band B2.
21. On 17 September 2016, the Claimant threatened to bring legal proceedings on the basis that he should have been placed in a higher priority band than Band B2.
22. Throughout this period, there a number of communications between the Claimant and the Defendant concerning his ongoing application for housing as a homeless person under Part 7 of the Housing Act 1996.
23. The Claimant wrote on 23 August 2016 to his Dublin solicitors asking for confirmation about the circumstances in which he was sentenced, including exceptional circumstances which led to a reduced sentence, and authorising them to provide the information direct to Ms Howarth of RB Greenwich, who was conducting an enquiry for the purposes of his homelessness application, to establish the circumstances of his offence and how he came to lose his accommodation in Glasgow in 2014.
24. On 5 September 2016, the Claimant filed a judicial review claim CO/4519/2016 challenging the Defendant's handling of his homelessness application.
25. On 13 September 2016, Ms Howarth emailed the Probation Service, describing her difficulty in obtaining any further information from the Irish courts, and Mr Aroh of the Probation Service said that he had not received information from the Irish courts, and only had information from other sources, such as the internet.
26. During this period, the Housing Allocations team, the Homelessness team and the legal team were receiving a large number of emails and telephone calls from the Claimant, which included allegations about their conduct, which caused concern.
27. On 21 September 2016, the Defendant held a meeting to discuss the Claimant's case. The minutes stated:

"Part 7 [Homelessness application]

Further enquiries required:

On loss of last settled accommodation including any possession proceedings for rent arrears.

The offending history including imprisonment prior to loss of accommodation.

Part 6 [Housing register]

Information from the Part 7 enquiries show the extent of the offending history, namely two convictions (not one) for drug related offences and new information relating to possession proceedings for rent arrears to a private landlord.

Action

Continue homelessness enquiries

Agree to suspend the Housing Application pending consideration of all the information available through enquiries and taking into account the terms of the Allocation Policy."

28. On 23 September 2016, Ms Sewell wrote to the Claimant informing him that his housing application was suspended while further enquiries were carried out, as the Defendant had concerns about his suitability to be on the housing register, arising from enquiries carried out in respect of his homelessness application.
29. On 11 October 2016, the Claimant emailed Ms Sewell, complaining that he could not see any information about the reasons for his suspension from the housing register in the Part 6 housing file which had been disclosed to him, at his request. On 12 October 2016, Ms Sewell replied stating that nothing had been withheld from his file apart from documents which were duplicated in the Part 7 housing file, also disclosed to him. Among other matters, she said "your past offence(s) and housing related debt are the issues under consideration and you will be notified of the outcome of this review shortly".
30. On 12 October 2016, Ms Elliott sent an email to a colleague stating "Coral [Sewell] is very upset over this (see below) and I don't blame her. She is working on the letter, once the letter is done the suspension will be superseded by the exclusion. I have been trying to get her to stick to the factors in the A policy, however I doubt that it will be done today and he is threatening action tomorrow although not sure what form it will take! C'est la vie. Debbie is working on the minded letter."
31. On 10 October 2016, the Case Review Panel met to consider the Claimant's case. On 18 October 2016, Ms Maureen Dignam, the Defendant's Senior Operation Manager, wrote to the Claimant informing him that the further enquiries had now been concluded and his case had been reviewed by the Case Review Panel. The Panel had decided that he would be excluded from the housing register in accordance with paragraph 2.3.1 of the Council's Allocations Policy on the basis of his unacceptable behaviour which was serious enough to make him unsuitable to be a tenant. The letter stated:

"Criminal Convictions

The Panel notes that on 16 January 2009 you were convicted for the offence of evading a prohibition on the import of a Class A drug and you were imprisoned for 7½ years. After your release from prison you were again convicted on 10 September 2014 for the offence of possessing a controlled drug with intent to supply, for which you were sentenced to seven years in prison with the final four years suspended. Both offences are very serious and that is reflected in the sentences you received. Both offences put others at risk from Class A/controlled drugs and all the harmful and negative issues associated with such drugs.

You say in your submission of 29 May 2016 that your 'conviction resulted from an incident that occurred outside the UK, and it was not related to anti-social behaviour or behaviour that directly placed other people at risk: hence I consider it inappropriate to deem me an unsuitable council tenant- on the basis of unacceptable behaviour.'

The Panel did not accept your submission and concluded that drug related offence have a serious impact on society. The offences involve the importation of a Class A drug and the latter with an intention to supply drugs. Had you been successful in the importation, people would inevitably have been put at risk. Notwithstanding, that you did not succeed in your endeavour, it is clear that your general conduct is sufficient to put others at risk particularly as you have shown no remorse. The Panel noted that you were on licence when you committed the second offence. You continue not to accept the seriousness of your conduct and imprisonment for the first offence, clearly this did not deter you from committing the second offence. The Council faces significant problems with drugs misuse in its area. The Council has a duty to the residents of the borough to manage the its allocation of accommodation and its housing estates in a way that ensures that it safeguards its residents and does not exacerbate or contribute to the on-going problems.

The Panel has taken into consideration the information you supplied regarding your risk to the community and note that your risk was reduced from medium to low following the completion of a work book given to you to complete whilst in prison. I note that the work book took three days to complete and was completed to a very high standard. The Panel has however taken into account the Council's responsibilities as a social landlord, the nature, frequency and seriousness of your criminal offences (for which you are still under licence), and concluded that you are a risk to others. This is more so given that you have not yet demonstrated a meaningful period since your release from prison in April 2016 without committing a serious offence.

2. Judgement for £1570

On the 21 May 2014 at Glasgow Sheriff Court, the solicitors for the landlords were granted decree for eviction, payment of the claimed arrears on £1570 and expenses. You are therefore subject to an order for breach of tenancy namely failure to pay you rent resulting in substantial arrears.

The Panel has also taken account of your assessed medical condition of PTSD and have concluded that that in itself or when combined with other factors does not prevent the Council from excluding you from the Housing Register.

The Council is mindful of its duties towards persons with protected characteristics under the Equality Act 2010 and having due regard to your disability, namely PTSD, has concluded that this is a proportionate decision. It is a legitimate aim to seek to safeguard the interests of other borough residents in the light of your serious offending behaviour and other matters sited above by excluding you from the housing register.

These matters can be reviewed in 12 months but if you are unhappy with this decision, you have the right to request a review. The request for a review must be made in writing within 21 days of the date of this letter."


 


32. There was evidence to show that the Defendant's homelessness team had been making enquiries in Scotland about the Claimant's tenancy in Glasgow and the circumstances in which it terminated, both prior to, and after, the decision of the Case Review Panel. Consideration of the homelessness application was still ongoing at that time.

Previous claims

33. On 17 October 2016, the Claimant filed judicial review claim CO/5374/2016 in which he challenged the Defendant's decision-making process on his housing allocation. He subsequently added further grounds.
34. The Claimant challenged the Defendant's decision to suspend and exclude him on the basis that the Defendant's decision was irrational and unfair. The Defendant had unlawfully deviated from its Housing Allocation Scheme by taking into account his previous convictions and rent arrears, as they arose more than two years previously. Since the two year period had to be assessed at the point an offer of housing was made, a person could not be suspended from the register on the grounds of rent arrears prior to an offer date. In addition, because the Claimant had a serious medical disability and was in priority need for housing, the existence of rent arrears ought not to have been taken into account when deciding whether to include him on the housing register. The Claimant also submitted that he had a legitimate expectation that he would not be excluded from the register on the basis of his past convictions. In addition, he submitted that the Defendant had no power to revisit and reverse the decision of 14 September 2016, entering him on to the register, and that the Defendant had falsely claimed it had received new information about his rent arrears and his convictions. The decision to suspend him was procedurally unfair and in breach of Article 6 ECHR. He also submitted that the Defendant's decisions were in breach of Articles 8 and 14 ECHR, and that the Defendant acted in breach of the Equality Act 2010. In his additional submissions, he alleged that the Defendant was misleading the court by making false claims and by refusing to disclose vital information to him.
35. The Defendant filed its Acknowledgment of Service and Summary Grounds of Defence on 3 November 2016, responding fully to the points raised by the Claimant.
36. At an oral permission hearing on 9 November 2016, HH Judge Wall QC, sitting as a Deputy High Court Judge, refused the Claimant permission to apply for judicial review in claims CO/4519/2016 (homelessness) and CO/5374/2016 (housing allocation). In respect of claim CO/5374/2016, he said in his judgment:

"17. The defendants in this case have made a number of decisions relating to whether the claimant ought to be on the housing register. On 23 August 2016 the claimant was written to by the defendant saying that his past conviction will not be taken into account when that decision was made. In fact he has not one conviction but two; each of them relating to dealing in drugs and for both of which he received lengthy custodial sentences.

18. I accept that the defendant authority were in possession of information as to both of those convictions before they wrote that letter on 23 August. Having written that letter, however, on 23 September the defendant authority suspended the claimant from its housing register, to which he had been admitted a few days before on 14 September, and then finally on 18 October of this year they excluded the claimant from their housing register altogether, that being the final decision.

19. The claimant seeks to bring judicial review of those last two decisions: firstly the suspension decision and then the exclusion decision. The most significant point that he brings for consideration is whether the letter of 23 August saying that his past conviction will not be taken into account means that the decisions that were made to suspend and then to exclude him which expressly did take into account his previous convictions are challengeable. His assertion in reality is that there was a legitimate expectation set up by the council on 23 August which meant that they could not act in the way they purported to do thereafter.

20. As far as the claim of legitimate expectation is concerned, it is arguable whether that was a clear representation or not as it referred to conviction, whereas in fact there were two significant convictions. But when one looks at whether there is a public law remedy for a legitimate expectation when it arises, one must look at the way in which the claimant acted in reliance upon that expectation. There was nothing that he did in this case that was in reliance upon it and indeed it is difficult, if not impossible, to think of anything that he could have done in reliance upon the expectation that he claims was created by the letter of 23 August.

21. There is a line of authority, the case in particular to which I have been referred being Oxfam v Her Majesty's Revenue and Customs [2009] EWHC 3078, in which it is said that not relying on a purported expectation is fatal to any claim of this sort.

22. In this case, given all the other factors, including the timescale and the lack of reliance and the lack of any way in which he could have relied upon what was in that letter, I do not find that there is anything within the decisions that is challengeable on that basis.

23. Other points have been taken which are on their face of less merit. Firstly, the claim is made that the claimant was not informed of the reasons why he was suspended from the register initially. That suspension decision has in any event now been superseded but it is clear from the correspondence in this case that he was well aware of the issues that were being investigated by the defendant and that there is no procedural unfairness in the way in which they acted.

24. It is also submitted on the part of the claimant that the defendant has unlawfully deviated from the scheme set in place in order to determine whether one should be on the housing register or not. A number of points are made, including the fact that his past criminal offences do not amount to antisocial behaviour or unacceptable behaviour.

25. In fact, his criminal offences are catered for as one of the reasons for removal from the scheme within the text of the scheme itself. His assertion that past criminal offences which took place more than 2 years ago cannot be considered is factually inaccurate.

26. The authority have also relied on past rent arrears. He has past rent arrears. He seeks to explain them through his medical condition, but the medical condition does not mean that these are arrears that cannot be considered.

27. In any event, even if one removed the rent arrears from the calculation in this case completely, it seems to me I should apply section 31(3)(c) of the Supreme Court Act 1981 to say that the previous convictions on their own would undoubtedly provide a good basis for refusing his application to be on the register.

28. He further submits that the local authority has acted in breach of the Human Rights Act and in violation of the Equality Act.

29. I need say no more than I see no basis upon which that assertion can be made with any hope of success.

30. There are, therefore, in my judgment, no grounds for allowing this case to go forward for judicial review and I refuse the application."

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38. HH Judge Wall QC refused the Claimant permission to appeal and so the Applicant applied for permission to the Court of Appeal. Gloster LJ refused permission to appeal, stating that the decision of HH Judge Wall QC was plainly correct and there was no arguable basis for an appeal. She found the application to be totally without merit. In her written reasons she stated:

"… the judge was correct to hold, for the reasons he gave, that the Respondent acted lawfully in excluding the Appellant from the housing register. I should record that a number of arguments on this appeal were entirely misconceived: for example, the arguments concerning the absence of an express reference to section 184 or specific background facts, the supposed failure to give reasons, res judicata and estoppel.

Accordingly, under CPR 52.3(4A)(a), these applications are refused as totally without merit and I order that the appellant may not request the decision to be reconsidered at a hearing."

39. The Applicant commenced committal proceedings against the Respondent on 18 November 2016, alleging that false or deliberately misleading statements had been made by the Respondent in its Acknowledgment of Service and Summary Grounds of Defence in claim CO/5374/2016. Following a hearing, I refused the Applicant permission to apply to commit the Respondent as he had not established any proper grounds on which to do so.

Ground 1: Exclusion of the Claimant from the Defendant's housing register under its Allocation Scheme

40. Most of the Claimant's grounds of challenge to the Defendant's decision of 18 October 2016 have already been considered and dismissed by HH Judge Wall QC and Gloster LJ in claim CO/5374/2016. The Claimant drew my attention to authorities indicating that re-litigation was not, in all circumstances, an abuse of process (see R (Opoku) v Principal of Southwark College & Others [2003] 1 WLR 234, per Lightman J. at [9], [13-16]; Bragg v Oceanus Mutual [1982] 2 Lloyds Rep. 132, per Sir David Cairns at [138-139]; Bradford & Bingley BS v Seddon [1999] 1 WLR 1482, per Auld LJ at 1492; Johnson v Gore-Wood & Co. [2002] 2 AC 1, per Lord Bingham at [31]. Applying those authorities to the facts of this case, I did not consider that the Claimant was entitled to re-run any of the legal or factual submissions which had already been considered and decided against him. There had been no material change of circumstances to justify that course. However, he was entitled to raise new submissions, not previously considered.
41. The only new submission under this ground, not previously considered, was the Claimant's contention that the Defendant's Housing Allocation Scheme was unlawful because it excluded people from joining its housing register on the ground of unacceptable behaviour. Such an exclusion was previously permitted under sections 160A and 167 of the Housing Act 1996, but repealed by sections 146 and 147 of the Localism Act 2011, and so could no longer be applied.
42. In my judgment, this submission was unarguable. The Defendant's Housing Allocation Scheme was published in 2015, and was in accordance with the amended legislation. The purpose of the amendments introduced by the Localism Act 2011 was to give local housing authorities more freedom to determine their own housing allocations, not less.
43. Section 159(1) of the Housing Act 1996 provides that a local housing authority shall comply with the provision of Part 6. Subsection (7) provides that, subject to the provisions of Part 6, a local housing authority may allocate housing accommodation in such manner as it considers appropriate.
44. In common with many housing authorities, the Defendant operates a housing register, and only those who are on the housing register can be allocated housing.
45. Section 160ZA of the Housing Act 1996 provides that accommodation may only be allocated to eligible and qualified persons. There are statutory criteria for eligibility, but subject to those, a local authority may decide what classes of persons are or are not qualifying persons (subsection (7)). By subsection (8), the Secretary of State has power to make regulations to prescribe or restrict qualification criteria, but no regulations have been made which are material to this case.
46. Thus, the Defendant was entitled to adopt in its Housing Allocation Scheme at paragraph 2.3 a qualification criterion which excluded those who have been "guilty of unacceptable behaviour serious enough to make them unsuitable to be a RGB tenant" and also those with rent arrears. These criteria were considered in more detail in the Scheme, but it was unnecessary for me to examine them here since, in the previous judicial review claim, the Administrative Court and Court of Appeal found that the Defendant's decision to exclude the Claimant was lawful under the terms of the Scheme.
47. The fact that the Claimant had mental health and other needs, and so could be accorded priority for housing, did not prevent the Defendant from excluding him from the housing register. The ministerial guidance "Allocation of Accommodation: Guidance for Housing Authorities 2012" confirms this in chapter 3, where it states:

"3.21. Housing authorities should avoid setting criteria which disqualify groups of people whose members are likely to be accorded reasonable preference for social housing, for example, on medical or welfare grounds. However, authorities may wish to adopt criteria which would disqualify individuals who satisfy the reasonable preference requirement. This could be the case, for example, if applicants are disqualified on a ground of anti-social behaviour."

Grounds 2 and 3: breach of the Data Protection Act 1996 and the Freedom of Information Act 2000

48. In response to the Claimant's formal application for disclosure of information relating to his housing applications, the Defendant disclosed material from its housing files in November 2016, which the Claimant utilised in his previous judicial review claims and committal application.
49. The Claimant's principal ground in this claim was that the Defendant had delayed in disclosing the Case Review Panel's report of its meeting at which the decision to exclude was made. The decision letter was dated 18 October 2016. In response to the Claimant's further applications for disclosure, the report was disclosed on 3 February 2017. It was very brief and added nothing to the reasons given in the decision letter, so it did not assist the Claimant in his challenge to the exclusion decision. Whilst the delay in disclosing it was regrettable, it could not possibly form the basis of a claim for judicial review of the decision of 18 October 2016, as it had no bearing on the lawfulness of the decision.
50. There were references in the correspondence to other documents which the Claimant sought, and which he claimed have been withheld, but these were not specified in the grounds for judicial review or identified at the hearing.
51. There is a statutory regime under the Freedom of Information Act 2000 which governs applications for the disclosure of documents from public bodies, including remedies for non-disclosure. It provides for initial applications to be made to the Information Commissioner, with a right of appeal to the First-tier Tribunal. The Claimant was well aware of this, as he has already applied to the Information Commissioner in connection with this matter. Judicial review is a remedy of last resort, and the Claimant must exhaust his alternative statutory remedies before applying for judicial review. Nothing in this case justified any exception to that general principle.

Conclusions

52. The Claimant has failed to establish any arguable grounds for judicial review, and so his application for permission is refused. This is yet another wholly unmeritorious claim which he has made against the Defendant in respect of its housing decisions, and I consider that this claim should be designated as totally without merit. As the Defendant has not taken part in the claim, there is no order for costs.