Edwards & Ors, R (on the application of) v Birmingham City Council [2016] EWHC 173 (Admin)

This was a quite extraordinary judicial review (or rather four joined judicial review claims with another 16 cases put in evidence in support) in which what was in the end at stake was not any remedy for the individual claimants – it was agreed that their individual issues had been remedied and the claims were academic on that basis – but whether there were systemic failings in Birmingham’s handling of homeless applications such that Birmingham:

generally, discourage and divert applications so that individuals are denied their statutory rights to have their situation properly inquired into and be given interim accommodation whilst those inquiries are being made.

As we will see, this challenge – ambitious in scale, and in law – came to grief, and did so on the individual cases.

There was a preliminary issue – the standard and nature of the court’s review. The claimants argued that whether a housing authority has reason to believe that: (i) an applicant is or may be homeless or threatened with homelessness such that Part VII applies, by virtue of section 183; (ii) an applicant may be homeless or threatened with homelessness such that a duty to make inquiries arises, under section 184; and (iii) an applicant may be homeless or threatened with homelessness and may have a priority need such that an interim duty to accommodate arises; is an issue of precedent fact for the court to determine. Birmingham argued that these were issues for the council to decide, subject only to conventional public law grounds, following Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223.

The court held that the formulation “where… the [local housing] authority have reason to believe that an applicant…” as found in sections 183, 184 and 188 was “a flag that the question is one primarily for the housing authority”. After a lengthy trek through Bubb, Puhlhofer, Cocks v Thanet District Council [1983] 2 AC 286, Ferdous Begum and R v Northavon District Council ex parte Palmer (1994) 26 HLR 572, the court concluded that Wednesbury was the appropriate test and further that “the range of rational decisions” was not so narrow as to determine the outcome.

There was also a dispute about the triggering of the s.183 threshold. Was it ‘immediate’ or could the council ask further questions in order to establish if it had ‘reason to believe’ the applicant may be homeless, etc., bearing in mind the prohibition on additoonal ‘non-statutory’ inquiries in R v Harrow London Borough Council ex parte Fahia [1998] 1 WLR 1396. The answer, for this court, was:

42. I agree that the duty to make statutory inquiries under section 184 is lightly triggered; and that is so whether the applicant says that he is (or is threatened to be) “roofless” or “homeless at home” to which the same statutory formula equally applies. However, in my respectful view, that does not mean that every housing complaint to an authority will necessarily require the authority to make section 184 inquiries. The authority is required to focus on whether it has reason to believe that the individual may be homeless or threatened with homelessness, because he is either roofless or homeless at home. If a person claims to be roofless, then the authority is entitled to ask him questions to clarify his housing status as such. Equally, the authority is entitled to question a person who claims that he is homeless at home, to clarify whether, in fact, there is reason to believe that the accommodation occupied by that person is such that it may not be reasonable for him to continue to occupy it. It is simply not the case that every complaint about the condition of a property – of which the Council, and no doubt other housing authorities, receive very many – gives rise to such a reason to believe, despite the lowness of the threshold. Where the complaint is about the condition of the property, the authority will often be able to proceed on the basis that the condition (even as described to them by the complainant) is reparable, and it will not be unreasonable to expect the complainant and his family to continue to live in the property until the remedial works have been carried out.

So, potentially further questions to the applicant before the s.183 obligation is triggered.

Some of the back history of this case was in R (Kelly, Mehari and JI) v Birmingham City Council [2009] EWHC 3240 (Admin) (our note) and R (Khazai, Ebrahim, Azizi and Mirghani) v Birmingham City Council [2010] EWHC 2576 (Admin) (our note), in both of which Birmingham faced substantial criticism of their homeless procedures and gatekeeping. A new head of homeless service joined in August 2010, and Birmingham’s case was that its policies and procedures had been substantially revised.

The issue, in each case, was how ‘homeless at home’ homeless applicants were dealt with by the Council.

Birmingham’s stated policy was considered by the court to be in excess of statutory requirements.

The statute provides that, if an authority has reason to believe that the applicant may be homeless and in priority need, then it must secure that “suitable” accommodation is available for his occupation. As I have explained (see paragraphs 29 and 86(ii) above), that involves an evaluative exercise by the authority, which might conclude that the accommodation occupied by a homeless at home applicant is “suitable” for him to occupy temporarily, for the whole (or for at least a part) of the period in which the homeless application is being considered. However, the Council do not make an assessment of “suitability”. As a matter of policy, if it considers an applicant may be homeless and in priority need, then it will provide him with interim accommodation, if he requires it. If the applicant indicates that he does not require it – because (e.g.) he prefers to stay in his current accommodation, or at family or friends, until the homeless application has been determined – the accommodation the applicant voluntarily stays in is, equally, not assessed for suitability by the Council. This policy – of course, more generous than the statutory requirements – is key to an understanding of how the Council purport to comply with its statutory duty under section 188 to provide interim accommodation pending a housing application decision.

This rested on ‘triage’ customer service advisers (CSAs) taking an initial interview and either making an immediate appointment with a Senior Housing Needs Officer (SHNO), or, if the CSA was satisfied that (i) the applicant is definitely not homeless and definitely not in priority need, and (ii) the applicant does not wish to have interim accommodation, a future appointment with a housing needs officer (HNO) is made.

Birmingham admitted that dates of homeless application were being wrongly recorded as date of interview, not date of first approach and said this was being corrected. While the period between first approach and interview may be long in some cases, this in itself was not arguably unlawful, given that an initial assessment had been carried out.

The claims were set out as follows, which I must quote at length:

Part of the claim is based on the facts of the Claimant’s own case, which are to a varying extent contentious, especially in relation to the nature of some of the engagements between the Claimant and the Council. However, it is submitted that the Council breached its duties under Part VII in failing (in each case) to commence a statutory inquiry into the Claimant’s request for assistance with homelessness under section 184 and (in some cases) to secure that suitable interim accommodation is available under section 188. However, it is accepted that, although allegedly delayed, the Council has now determined each application and, in appropriate cases, has now offered suitable accommodation, and so is not in continuing breach. Therefore, Mr Nabi concedes that, since their issue, the four claims have become academic (paragraph 156 of his skeleton argument). No specific substantive relief is being sought in respect of any of the four claims.

However, in each case, there are also general complaints about and criticisms of the Council’s practices and policies when handling inquiries and applications from homeless people, the thrust of which is that the Council deliberately seeks to avoid its statutory duties and/or to delay complying with its obligations, or at least acts in such a way that it inevitably breaches or unlawfully increases the risk of breaching its statutory duties. The general part of each claim is, for all intents and purposes, the same; and it is said that the individual claims illustrate that the procedures currently employed by the Council (i) fail to reflect the urgent and immediate nature of the inquiries and interim accommodation duties mandated by Part VII, and (ii) employ a similar approach to interim accommodation as that declared unlawful in Kelly (paragraph 6 of Mr Nabi’s skeleton argument). These failings lead to “an unacceptable risk that applicants entitled to assistance under Part VII will not be dealt with lawfully” (paragraph 11(d) of that same skeleton argument). These systemic claims are also supported by reference to sixteen other cases in which no formal claim is made, but which (it is said) further illustrate systemic deficiencies. In respect of the four claims, the same relief is sought in each case, namely a general declaration that the Council’s procedures and practices when dealing with persons seeking assistance with accommodation fail to comply with its obligations under Part VII, and a general mandatory order that the Council implements procedures and practices that allow and facilitate compliance with those obligations, ensuring in particular that there is no delay in compliance with its obligation to investigate a homeless claim and its duty to provide suitable accommodation in the meantime obligations under section 184 and 188 respectively.

However, the court pointed out that it was not a general court of inquiry. It would not deal with the general allegations by themselves. Instead, each of the claimants’ cases would be considered and, if there was a breach in one or more of the four cases, only then would the general claims come into play, to the extent that the specific breaches might appear to arise from a general policy or procedure.

So, it was consideration of the individual cases that was key. This was not helped by an absence of contact notes on Birmingham’s part, and the difficulties in recollection of events by the claimants.

And it was on the individual claims that matters went badly wrong for the claimants.

Ms Edwards

Her evidence of going to the council to make a homeless application ‘on numerous occasions’ was ‘hopelessly confused’. When she did, an appointment with an HNO was made for her about a month later, after she was asked whether she wished to have temporary accommodation that night. It appears that she was not asked if she would need temporary accommodation before the HNO appointment.

Following a protocol letter from her solicitors, demanding temporary accommodation and the issue of proceedings, Ms Edwards declined B&B or hostel accommodation in an interview with an HNO. She did then accept it a few days later, when offered by the council after service of proceedings. (We won’t dwell on the subsequent history).

On these findings, the claim that the council had failed to take a homeless application and then had failed to offer suitable interim accommodation could not stand. The homeless application had been taken and a later appointment made, on the basis that Ms E had indicated that she did not wish temporary accommodation at that point (and again turned it down at the following interview). The only censure on the council was that one of the temporary accommodation places offered had been manifestly unsuitable and that had been remedied.

Claim dismissed.

Ms Cole

Ms Cole asserted she had tried to make a homeless application on 11 March 2015, but there was no evidence that this had happened. A pre action protocol letter had subsequently been sent on 17 March asserting that she had been sent away. The council replied saying there was no record of this and they had not been able to contact Ms C. Proceedings were issued on 30 March. The council interviewed Ms c over two days. She declined temporary accommodation.

On these findings, there was no breach by the council.

Claim dismissed.

Ms Saeed

Her evidence was that she had tried to make a homeless application on several occasions in February 2015, but had been sent away because ‘she was a council tenant’ or told they could not help her.

It was far from clear which office she claimed to have attended, two of the offices mentioned may have been Solihull Council offices, and there was no record of any of the visits. The court was not persuaded she had made a homeless application before March 2015, when her solicitors called and sent a pre action letter. Ms Saeed was interviewed 2 days later. Ms Saeed’s evidence was that she requested temporary accommodation, relying on a handwritten note, while the council’s application form showed it as being refused and there was no mention in the protocol letter of temporary accommodation.

The court found that the handwritten note was consistent with a discussion at interview of future temporary accommodation needs and did not prove it been requested and refused.

On these findings, there was no breach by the council.

Permission for JR refused.

Mr Noworol

Mr N had applied as homeless in January 2014, with a finding of not in priority need in March 2014> After eviction from the temporary accommodation in December 2014, he again presented as homeless on 7 January 2015, this time mentioning a heart condition and depression. He was sent away with a decision letter stating that as there was no material change in his circumstances since the last application, the council didn’t have to accept this application. At the trial, Birmingham conceded this was wrong and should not have happened.

Following a protocol letter from his solicitors, the 7 January application was accepted and an interview arranged for 19 January. Mr N did not attend that interview, apparently thinking he did not have to because he had a support worker. At the start of March, his solicitor sent a pre action letter on failure to make a s.184 decision within 33 days. Birmingham pointed out the failed attendance and offered an interview at a housing office (HAC).

That, I am afraid, prompted another PAP letter, sent by CLP at 4.27pm on 9 March. It said that CLP were not prepared to advise Mr Noworol to attend an HAC – because applicants were often simply sent away from such offices – and the letter required the Council to forward a homeless application form, which they would complete with Mr Noworol. That (as Ms Darwin explains: see paragraph 29 of her case statement of 9 September 2015) was not possible, as the forms are electronic in nature, and comprised dropdown boxes that disenabled hard copy completion. The Council thus responded to the PAP letter accordingly, offering Mr Noworol an interview at Newtown HAC on 12 March 2015 at 11am. Mr Noworol says that he attended that day, in good time, but was told that “the Council could not help him with a homeless application and the Newtown Office had not taken homeless applications since October 2014”. He was told to go elsewhere, and was given a leaflet, which did indeed confirm that Newtown HAC did not deal with “on the day homeless” applications – although, of course, Mr Noworol was not making such an application: he had an appointment. As a result of this misunderstanding as to why Mr Noworol was there, the Newtown HAC recorded him as a no show.

On 10 April, the council arranged for an HNO to visit Mr N and complete the homeless form. Judicial review proceedings on failing to make a decision in time were issued on 30 April. The council found him not homeless on 7 May and a review sought, but shortly afterwards Mr N was offered a tenancy under Part VII, which he accepted.

The court found that while the initial refusal was wrong in law, this had been remedied. The subsequent delay in making a decision had been fuelled by misunderstandings and there was no indication that the council had not had the 33 day period for a decision in mind.

Permission for JR refused

So each of the individual claims failed. While there were failings by Birmingham, these had largely been remedied and/or were not of the scale that would have attracted relief.

On the general claims, there could be no consideration of these given the decisions on the individual claims. Further, while being cautious of statistics without deeper information:

The bare statistics alone do not suggest that the Council is unlawfully restricting access of to Part VII benefits. Compared with the national figure, the Council has about 5% of homeless applications made and 6% of applications in which a full duty is accepted, which can be compared with the proportion of national households in Birmingham namely 2%, the acceptance rate is about 60%, compared with 48.5% nationally. 0.75% of households in Birmingham are accepted as homeless, compared with a national figure of 0.25%. Mr Nabi suggested that the fact that, given the HACs received 180,000 inquiries per year, the fact that only 5,000-odd homeless applications were made to the Council suggests that potential applicants must be turned away, in my view, has no force: the NO/HACs deal with a wide variety of inquiries, and it cannot properly be argued that this proportion reflects a failure to deal with all the homeless applicants who in fact attend HACs.

There was no evidence in the specific cases of any systematic approach, and no evidence of an express unlawful policy (unlike Kelly and Khazai). Given that, there was nothing for the other 16 cases to support. The judgment concludes by noting some issues for Birmingham to consider.

The Council’s procedures have clearly undergone a substantial transformation over the last few years; and, Mr Crawshaw makes clear, further changes are likely. Whilst I emphasise that the manner in which the Council seeks to comply with its statutory obligations under Part VII is essentially a matter for it, and I do not consider they amount to anything like a systemic breach of the Council’s Part VII duties, it does seems to me that there remain vestiges of procedures and practices, which have been criticised in the past. For example:

i) It seems to me that there is a risk that Question 29 on the Homeless Application Form, as to whether the applicant needs accommodation that night may be equated by the applicant and/or the interviewer to mean “emergency accommodation” as criticised in Kelly. But, insofar as that is a risk, in my judgment it plays no material part in the claims before me now.

ii) Similarly, the preoccupation of the Council with whether an applicant needs accommodation “that night”. Whilst again not being material in the claims before me, there seems to be some confusion as to whether consideration of interim accommodation pending a homeless interview should be restricted to accommodation “that night” or whether it should be extended to accommodation until that interview (see paragraphs 114 and following above). Whilst the manner in which the Council complies with its Part VII duties is not a matter for this court, it is important that an applicant is able to make an informed decision about interim accommodation; and, consequently, if he is booked in for a homeless interview in the future, he needs to be asked whether he needs such accommodation now or at any time until the homeless interview or, at least, it needs to be made clear to him that he is able to attend an HAC at any time before the interview to claim interim accommodation if he wishes. Mr Crawshaw asserts that applicants are informed of the right to return and ask for interim accommodation; but there is little evidence about how this is dealt with in practice, beyond that of Ms Darwin in Ms Edwards’ case, which I accept (see paragraphs 163 and 166 above). An approach that consistently ensures applicants are properly informed, and make an informed decision, is required.

iii) Whilst Mr Crawshaw says that the Council have taken a policy decision not to prepare and publish a homelessness manual, he also frankly accepts that different officers have different understandings (paragraph 12 of his statement of 28 September 2015), and that it may be necessary to spell the correct procedure and tests in explicit terms (paragraph 76 of the same statement). It seems to me that individual officers may have, on occasions, applied the wrong test for homelessness. By way of example only, in the case of Mohammed Mustafa (one of the sixteen cases outside the claims), it seems that a CSA at the Sparkbrook HAC may have advised Mr Mustafa with regard to interim accommodation, on the basis that “homeless” meant “roofless”.

None of these are material to the claims before me, and, in my view, taken alone or in aggregate, the examples of errors before me fall very far short of showing any systemic fault or breach. They are, no doubt, matters that the Council will keep under review.

Comment

Oh my. Oh dear.

We have said it before, and no doubt will again, that judicial reviews of alleged unlawful homeless policies or gatekeeping practices are extraordinarily difficult to build, at least in the absence of the kind of smoking gun evidence present in Khazai and Kelly. It goes without saying that the court will want a lot of convincing that there is a broader interest in taking forward claims which have, at least for the specific claimants, become academic.

Moreover, when trying to build a broader picture out of individual cases, the claims are, as here, entirely at the mercy of the reliability of the facts of those specific cases.

The argument on the kind of scrutiny on review – whether ‘having reason to believe an applicant may be homeless’ is a precedent fact, therefore open to the court’s scrutiny and decision, or wholly the council’s decision, subject only to being made lawfully and rationally – is an interesting one. Strictly the decision on that here is obiter. But I suspect that the same reasoning would be followed in other cases and higher courts. The decision on the intensity of review set out here (at 84-86) seems to be to be less convincing, but this is a developing argument across homeless judicial reviews.