Just one small but crucial fact..

Tricky things, ex parte interim injunctions. Dealt with on the papers, or possibly by a phone hearing with a duty Judge, there is little time for detail and, obviously, no argument from the other side. Which makes it all the more important that the applicant gets things right. We noted some stern words on failure to follow protocol and failure to disclose material facts from Munby J here.

A further warning on the nature and extent of disclosure of material facts comes  in R (On the application of Konodyba) v Royal Borough of Kensington and Chelsea [2011] EWHC 2653 (Admin [Not on Bailii]. The case also involves the jurisdiction for an application for temporary accommodation pending appeal to the Court of Appeal, which, it turns out, is not at all straightfoward, and whether a fresh application can be made while a previous one is under appeal.

We have met Dr Konodyba before, sacking her legal team at the hearing of a second appeal on her negative homeless decision for making a potential successful argument, against her instructions. That appeal was dismissed.

Dr K made a further application as homeless, refused on the same grounds. That also went to a County Court appeal in May 2011, when the appeal was dismissed. Dr K's solicitors served notice of application to appeal to the Court of Appeal on the Council, but this application was still pending while a transcript was obtained.

Meanwhile, Dr K indicated to the Council that she wished to make a further application as homeless, as the A8 accession period for Polish nationals had ended on 30 April 2011. RBKC refused, saying that she could only have one application live at any one time and her previous one was ongoing with the application to the Court of Appeal. RKBC stuck to that position and did in fact refuse a a further application in July.

On 9 August, Dr K was evicted from her accommodation. Her son, who suffers from mental health problems, was an in patient, but Dr K was stated to have become street homeless (although no details could be provided by her counsel at this hearing as to where she was staying if anywhere).

No request for temporary accommodation was made until a pre-action protocol letter, dated 22 August, in which the claimant's solicitors challenged the failure to accept the fresh application and the defendant's consequent failure to provide temporary accommodation pursuant to section 188(1) of the 1996 Act as well as the defendant's failure to consider providing accommodation pending the application for permission to appeal to the Court of Appeal pursuant to section 204 (4) of the 1996 Act.

RKBC maintained its position on a fresh application and said that it could not provide accommodation pending appeal to the Court of Appeal

it was prevented from doing so by virtue of section 54 and Schedule 3 to the Nationality, Immigration and Asylum Act 2002 paragraph 5, because the claimant is a national of an EEA state other than the UK, unless it would be

necessary to provide accommodation to avoid a breach of the claimant's rights under the European Convention on Human Rights (ECHR) or the Community Treaties, see paragraph 3 of Schedule 3.

RKBC's position on the appeal was, of course, that Dr K was not exercising treaty rights. An assessment on ECHR rights would be caried out. Dr K was provided with temporary accommodation while that assessment was done. On 16 September, RKBC decided there would be no breach of ECHR rights in not providing accommodation, one reason for this being that Dr K had alternative accommodation available to her at an address in Bishop's Stortford, this being a private tenancy she held.  Dr K was given 4 days to leave the temporary accommodation, on the basis that this other accommodation was available.

Dr K's solicitors sent a further pre-action protocol letter on the termination of temporary accommodation, which did not deal with the reasons given by RKBC. RKBC's reply set their position out in detail, including question the non-disclosure of the Bishop's Stortford tenancy. They requested notification of any JR application so that they could be represented.

The next day, Dr K's solicitors applied for JR and for interim relief in the form of the provision of accommodation for Dr K and her son pending determination of the application for permission to appeal. The interim relief was granted on the papers. No notice was given to RKBC.

RKBC applied the following day to discharge the injunction. This was the hearing of that application.

RKBC argued that:

There was material non-disclosure because the application for interim relief did not draw the Judge's attention to the tenancy at Bishop's Stortford. RKBC produced a tenancy agreement in the name of Eleanor Novi dated 31 October 2010. There had been possession proceedings for non-payment of rent with a possession order in July 2011. A warrant was issued and a application to suspend the warrant made. A hearing on 7 September 2011, attended by the tenant's solicitor and landlord, was adjourned to 23 September. At that hearing, the tenant did not attend, but no date was yet in place for execution of the warrant. The landlord had confirmed that Eleanor Novi was the same person as the one in Dr K's passport photo.

Against this, Dr K's solicitor had filed a witness statement, stating that at the time of RKBC's letter of 16 September, his instructions were that the Bishop's Stortford property was not accommodation available to Dr K and her son and that his instructions remained the same. There was the likely enforcement of the warrant in addition, making the position unclear.

RKBC's second ground was that

by virtue of section 204 A of the 1996 Act, enforcement of the power to provide accommodation pending appeal against a review on a homelessness decision lies exclusively with the County Court and the High Court has no jurisdiction in the matter.

And lastly that applying the proper test, no injunction should be made.

The High Court held:

There was no dispute over the law on injunctive relief in such cases:

applications for interim relief against a local housing authority by a claimant who seeks an order that he or she be provided with temporary accommodation, although none of the relevant authorities were drawn to the attention of Flow J. The claimant must show at least a "strong prima facie case" and the balance of convenience test in American Cyanamid Company v Ethicon [1975] AC 396, does not apply, see Francis v The Royal Borough of Kensington and Chelsea [2003] EWCA Civ 443-paragraph 16.

On the jurisdiction argument, S.204(4) provides that an Authority 'may' provide accommodation "until the appeal (and any further appeal) is finally determined", and s.204A provides

(1) This section applies where an applicant has the right to appeal to the County Court against a local housing authority's decision on a review.

(2) If the applicant is dissatisfied with the decision of the authority -

(a) not to exercise their power under section 204(4) (“the section 204(4) power") in his case;

(b) to exercise that power for a limited period ending before the final determination by the County Court of his appeal under section 204(1) ("the main appeal"), or

(c ) to cease exercising that power before that time

he may appeal to the County Court against the decision.

(3) An appeal under this section may not be brought after the final determination by the County Court of the main appeal.

The argument was that 'final determination' must be read alongside 'and any further appeal' in s.204(4), thus including any further appeal to the Court of Appeal, while the Claimant argued that the words 'and any further appeal' were conspicuously absent from s.204A. The Court held that there was not a strong prima facie case to support the view that the High Court gained jurisdiction once a County Court appeal had been decided and that s.204A probably encompassed accommodation pending appeal to Court of Appeal.

However, as the Claimant pointed out, this was also a claim for judicial review of the Defendant's refusal to accept a further application and there the High Court most certainly had jurisdiction, a point which the Defendant had missed.

On the material non-disclosure, while the letters about the Bishop's Stortford tenancy had been included in the documents to the application and referenced in the essential reading, there was no mention in the statement of facts and grounds, solely a reference to the Defendant stating that Dr K and her son 'had other accommodation available to them'. It could hardly be a surprise if the Judge had missed the significance of this, not least because the Claimant's solicitors had made no acknowledgment of the Bishop's Stortford issue in correspondence, not even to the extent of saying instructions were being taken on it.

When I asked what steps the claimant's solicitors had taken in response to the information in the defendant's letters over an above the evidence set out in [the solicitor's] witness statement to which I have already referred, counsel told me that they took instructions from the claimant who said that the Bishop's Stortford accommodation was not available to her. I was also told that she had been invited to attend court yesterday to: "Put forward those matters referable to the Bishop's Stortford property which she asserts, but for which public funding cannot be justified." Yet the claimant did not attend court yesterday.

The Defendant had produced credible evidence as to the tenancy, but there was no evidence from the Claimant save the simple instruction that the property was not available to her.

While I fully recognise that there is a duty on a local housing authority to make inquiries when considering the discharge of its functions under part VII of the 1966 Act, in the face of the information which the defendant provided before the proceedings began, in my judgment it was incumbent on the claimant and her solicitors to make inquiries as to the true position relating to this property and to inform the court of it when making the application for judicial review and interim relief. That duty has been breached. Further, even yesterday the claimant was deliberately failing to disclose relevant information despite being invited to do so by her solicitors.

A witness statement had been put forward on the morning that this judgment was given, but had not been considered as being far too late.

If the full picture had been before the Judge on the ex parte application, he would not have granted the injunction, but would have listed an urgent hearing. There had been a material non-disclosure.

It was at the present court's discretion to discharge the injunction even if the Claimant had a strong prima facie case in the proceedings. Such a discretion should be exercised with regard to all the circumstances of the case, including the degree of culpability.

Further issues about the accommodation available to DrK had come to light, including the period of supposed street homelessness in August - no application for interim relief had been made during that time. Dr K had not been residing at the temporary accommodation that was provided by RBKC in September for 'several days at a time', leading RKBC to ask her solicitors where she was on two occasions, with no response. Further, her son was enrolled in a 6th form college in Bishop's Stortford from 1 November 2010.

On lack of merit, it is a very restricted jurisdiction on which the Court can interfere with the Council's decision on provision of temporary accommodation, R v Brighton and Hove council ex parte Nacion [1999] 31 HLR 1095. Further in this case, provision of accommodation could only have  been under the ECHR, as the Council were otherwise precluded under the 2002 Act.

While the Claimant's letters on the fresh application had raised 'Community rights', there was no explanation in them or the grounds of JR as to how having the main EU rights after April 2011 had improved Dr K's position. At the present hearing, recourse was again had to the Baumbast argument raised before April 2011, but no explanation of how the position had changed since the dismissal of the County Court appeal such as would merit the fresh application. There was no strong prima facie case and the Claimant's argument was inadequate. In view of the Bishop' Stortford property issue, there simply was no viable human rights argument. There was also no prima facie case on the provision of temporary accommodation following the second homeless application.

Finally, on the issue of whether RKBC should have accepted the most recent application while the appeal on the previous one was still pending:

I have found this is difficult issue, which suggests that it is arguable that this defendant's decision is based on a misconstruction of a statutory scheme. On the other hand, having regard to the matters I have pointed out, I am not persuaded that the claimant has reached the threshold of showing a strong prima facie case in this respect.

There was therefore no strong prima facie case on any ground on which interim relief would be granted. Even if there was a strong prima facie case on the failure to accept a fresh application, the duty to provide temporary accommodation under s.188(1) only arises if the Defendant had "reason to believe that an applicant may be homeless, eligible for assistance and have a priority need.". As they had not accepted the application, this question had not been considered by RBKC, making injunctive relief premature. That said:

there will cases where, if there is a strong prima facie case that the authority's decision not to accept an application is unlawful, it can be said with some confidence that there is a strong prima facie case that the duty to accommodate would arise such that on an application for interim relief an injunction would be granted.

In the light of the Bishop's Stortford tenancy, that was not the case here, although it was possible that Dr K may be threatened with homelessness.

Even if this where wrong, this was a case were interim relief would be discharged on grounds of material non-disclosure, for the reasons given above.

In my judgment the application for interim relief and the claimant's opposition to the defendant's application to discharge the injunction granted by Flow J is a gross abuse of the court's discretion to order interim relief and the order dated 22 September is discharged forthwith.

The application for permission was not determined at this hearing, the Defendant had not yet filed grounds of defence. However, there was a question whether the claim in relation to the failure to take a fresh application was made promptly.

Costs order reserved for the Defendant to consider applying for a waste costs order.

Comment

Oh dear.

Oh dear, oh dear, oh dear. I sometimes have nightmares like this.

The procedural point on temporary accommodation pending final determination of the appeal is interesting and potentially difficult. What if TA is terminated after an unsuccessful s.204 appeal but while an application for permission to appeal to the Court of Appeal is underway. Can it be the case that a fresh application must be made to the County Court? This was not a final decision on the issue, just a decision on the prima facie strength of the argument, but the Admin Court clearly leaned towards s.204A excluding it from jurisdiction. What of the Court of Appeal itself - would the route be an urgent application for interim accommodation pending permission to be made to the Court of Appeal itself? Or should the County Court be asked to make an order continuing TA on condition that an application for permission to appeal be made within a fixed period?

On the issue of a fresh application while a previous one is under appeal, the Admin Court again does not reach a final conclusion, but I think that the tentative conclusion that RBKC was misreading the statutory provisions in insisting it could not take the fresh application is probably right.

But the headline element of this case has to be the requirement to make sure that the full situation is clear in the statement of facts and grounds of any ex-parte application, certainly for interim relief. It isn't enough for details to be hidden in the documents, even if flagged as essential reading - they must be set out and addressed up front.

Posted in FLW case note, Homeless, Housing law - All and tagged , , .

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +

4 Comments

  1. Its certainly possible for an inferior court to give interim relief pending appeal to a higher court as a general rule. Whether this is (or could be) true after an unsuccessful s.204 appeaI do not know, but it is certainly possible to obtain (say) a freezing injunction from a lower court after judgment by the lower court pending a decision by the higher court.

  2. ‘Even if there was a strong prima facie case on the failure to accept a fresh application, the duty to provide temporary accommodation under s.188(1) only arises if the Defendant had “reason to believe that an applicant may be homeless, eligible for assistance and have a priority need.”. As they had not accepted the application, this question had not been considered by RBKC, making injunctive relief premature.’

    Not the ratio of the case (thank God), but this is pernicious nonsense. The issue of ‘reason to believe…’ does not have to be considered by the local authority at all. It is an objective standard. The local authority do not have to ‘accept an application’ for the duty to arise. It’s bad enough trying to get this into the heads of homelessness officers, without High Court judges also failing to grasp this quite simple point.

    • Alex – largely agree and I meant to flag that up, but, well, it was late on Sunday night.

      To be fair to the Judge, this was both strictly speaking obiter and in a context where the issue was RBKC’s refusal to take a further application. Whether RBKC could do that did not have to be decided at this hearing and, as the note says, the Judge indicated that she thought this was not the case. If they did have to take a further application then the s.188(1) point would bite (although the obvious and immediate decision here would be that they did not have reason to believe the applicant was homeless). I think the Judge phrased this badly – perhaps very badly – but the context was the issue of RBKC’s refusal to take a second concurrent application. As I say, whether this was right was not an issue that fell to be decided at this hearing, just the strength of the prima facie case.

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