Refusing irrationally

May, R (on the application of) v Birmingham City Council [2012] EWHC 1399 (Admin)

When can a Local Authority refuse to accept an application as homeless? This was a judicial review of Birmingham City Council’s refusal to accept a homeless application by the Claimant, Ms May, ostensibly on the basis that there was no change in facts from her previous application(s).

Ms May had applied to Birmingham as homeless after arriving from Slough. She had left her home in Slough because of domestic violence and had family in Birmingham. In January 2010, Birmingham accepted the full housing duty. Ms May was offered a permanent property on the 12th floor of a tower block. Ms May refused it as unsuitable for her young children. Birmingham upheld the suitability on review and discharged duty in February 2010. During the review period and after the decision, Ms May had been living with her grandmother. Her evidence was that:

Throughout the period of the review I continued to reside with my children at my grandmother’s house. I had applied to go onto the Council’s waiting list for accommodation and an agreement was reached between myself and my grandmother that myself and my two children could stay with her in her three bedroomed property for an indefinite period – until I was offered accommodation from the Council’s waiting list. I did not consider myself to be homeless during the time spent with my grandma as the living situation was fine.

However, in November 2010 there was an unexpected breakdown in the relationship between myself and my grandmother which led to my grandmother requesting me to leave her home. This led me to apply as homeless to the Council.

Ms May applied again as homeless on 25 November 2010, giving the reason for homelessness as being unable to stay at her grandmother’s house any longer and saying she had nowhere to stay that night. She was given temporary accommodation, but her application was rejected on 14 December 2010, on the stated basis that there had been no relevant change in her circumstances since the review decision of February 2010 and that she had only been staying with her grandmother ‘on a temporary basis’.

Ms May requested a review and in her submissions, said, repeatedly that while the reason for her first application was that she was fleeing domestic violence, her grandmother had then agreed to accommodate her and her children. This situation had then changed in November 2010, when her grandmother had said she had to leave after arguments.

The review decision of 15 March 2011 upheld the decision that there were no new facts. It said in part:

You have stated in your review submitted on 7 January 2011, that your Grandmother agreed she would accommodate you when you came to Birmingham. I do not consider this a relevant fact. You came to Birmingham on 5 October 2009, and approached your local Neighbourhood Office 10 days later as homeless. An appointment for you to complete a homeless application was then made for 27 October 2009. I am satisfied from the above information that your move to Birmingham, and the arrangement to stay with your Grandmother was only temporary. Your extended stay with your Grandmother was then enforced following Birmingham City Council’s discharge of duty once you refused an offer of accommodation. You remained with your grandmother for a further 9 months, were the relationship had reached a point where she no longer willing to accommodate and consequently asked you to leave, prompting a second homeless application form.

[...] The facts of your circumstances are that you and your two children were homeless from your Grandmother’s at the time of your previous review decision, and on your most recent homeless application, you are still homeless from your Grandmother’s where you have been residing temporary.

A s.204 appeal was made ‘for protective reasons’, but Ms May made a further homeless application on 12 May 2011.This application was stated to be based on new facts or facts which the authority had failed to consider in the course of the previous homeless ‘investigation’, and said

The Authority has failed to investigate, to date, our client’s occupation at her grandmother’s house and in particular whether that period of occupation was sufficient to give rise to a new incidence of homelessness. No consideration was given as to the nature of our client’s occupation or of the agreement entered into with our client and her grandmother sufficient to assess whether Mrs May had occupied premises at William Cook Road as settled intervening accommodation. Similarly, our client is plainly asserting that her eviction from her grandmother’s was not anticipated. Our client’s occupation of William Cook Road did not come to an end at the end of any agreed term but due to sudden and unforeseen circumstances. No investigation has been made in relation to these facts and in relation to whether our clients eviction from her grandmother’s constitutes a supervening element sufficient in itself to create a new incidence of homelessness. Your further investigations are required to encompass these issues and also deal with any new facts arising from the current homelessness.

On 31 May 2011, Birmingham rejected this application as not being valid:

I asked Mrs May about her reason for homelessness. Mrs May stated that it was the same reason as highlighted on her previous homelessness application. To clarify this important point, I asked Mrs May if anything had changed, or whether her circumstances and the facts of her case were exactly the same. Mrs May stated her reason for homelessness was the same as before, and that her circumstances were exactly the same. This information clearly contradicts the contents of your letter dated 12 May 2011.

And continuing:

After considering both of Mrs May’s homelessness applications, and after confirming with Mrs May that the application dated 12 May 2011 is based on exactly the same facts as her first homeless application dated 27 October 2009 (and the subsequent application dated 25 November 2010), I must advise you that we do not consider there has been any change in the facts of your client’s case, and we will not be accepting the homeless application dated 12 May 2011.

This decision was the subject of the judicial review.

Rather surprisingly, there was no evidence submitted by the officer who wrote the decision letter. The factual account in the decision letter was clearly disputed, but there was no witness statement addressing how the decision had been reached.

The principles for successive applications were considered in R (Harrow London Borough Council) ex parte Fahia [1998] 1 WLR 1396 and Rikha Begum v Tower Hamlets London Borough Council [2005] 1 WLR 2103

In Fahia, the principle was set out by the House of Lords that the only exceptions to the (then equivalent of) the duty to accept an application under s.184 HA 1996 were is a) a person lacked capacity to make an application or b) a person had been found intentionally homeless but made a further application on exactly the same facts. So at best there was a condition that the application should not be ‘on exactly the same facts’ (which was not the same as ‘a material change in circumstances). Moreover, in Fahia, the applicant had been occupying a guest house as a licencee for a year between her applications and for that reason “it was impossible to say there had been no relevant change in circumstances at all”.

In Rikha Begum, the Court of Appeal found, in Lord Neuberger’s judgment, that

I consider that there is no room to imply a further requirement which has to be satisfied, such as establishing a material change of circumstances since the refusal of an offer of accommodation pursuant to an earlier application, before the clear words of sections 183 and 184 can take effect. Any such implication faces insuperable difficulties in light of the decision, but also the reasoning, in Fahia. A person seeking to imply words into a statutory faces a difficult task: it is a course which can only be justified in clear and unusual circumstances. Where the implication involves imposing a further requirements, over and above express requirements imposed by the legislature, the task is, in my view, particularly difficult

and

… I do not consider that in such a case the authority would be entitled to investigate the accuracy of the alleged new facts before deciding whether to treat the application as valid, even where there may be reason to suspect the accuracy of the allegations. Such an investigation would in my view, fall foul of the manifest disapproval in Fahia of non-statutory inquiries. Even if an investigation to decide whether the application is valid is expected to be short and simple, it seems to me that it would transgress that disapproval, as well as running into the other difficulties I have referred to, based on the wording and structure of Part VII of the 1996 Act.

In its defence, Birmingham argued that the test in this claim was irrationality. This was a stringent test, on the Wednesbury principle of whether the decision was “so absurd that no sensible person could ever dream that it lay within the powers of the authority”.

The Claimant’s argument, simply put was that:

No authority acting rationally and properly directed in law could decide that the Claimant’s further application for assistance, precipitated by homelessness caused by the breakdown by the Claimant’s relationship with her grandmother, was identical to her first application which was precipitated by her fleeing Slough as a victim of domestic violence.

Birmingham argued that:

At the date of a third application as homeless the claimant was asserting that she could no longer occupy her grandmother’s home and was therefore homeless. That was the precise same reason for homelessness as was asserted at the date of her first application although the claimant had fled domestic violence in Slough. She was living temporarily with her grandmother but asserted she could not continue to do so. Likewise, at the date of the second application the reason for homelessness was the same. There is simply no change of the fact.

Further

If in so far as the claimant asserts that the date of her first application she was ‘homeless at home’ at her grandmother’s but made actually homeless by the date of her second application, it is submitted being homeless in a unit of accommodation is identical to being homeless from that same unit. This is a conclusion which on any sensible analysis cannot be said to be perverse.

Birmingham argued that “there is no difference, or at least that the local authority was entitled reasonably to come to the view that there is no difference between housing being temporary, in the sense that it may come to an end at some point in the future and it being temporary in the sense that that has in fact now come about.”

These arguments from Birmingham got short shrift:

39. I do not accept that submission on behalf of the defendant. I have come to the clear conclusion that it was irrational for the defendant authority to take the view that the circumstances of the claimant when she made her further application were exactly the same as when she first made an application as a homeless person.

40. On behalf of the defendant, no issue was taken with the the factual assertion made on behalf of the claimant that after the defendant authority’s decision that it had discharged its duty to the claimant, on 12 February 2010 an agreement was reached whereby the claimant’s grandmother told her that she and her children could stay at the grandmother’s house, pending the outcome of the claimant’s application for housing on the defendant authority’s ordinary waiting list; in other words, outside the context of homelessness applications.

41. That was, as has been submitted on behalf of the claimant, an open-ended commitment. Although the accommodation can be described as temporary, the claimant had a licence from her grandmother. It was temporary, in the sense that it was not permanent. No doubt, both the claimant and her grandmother were hoping and expecting her application for housing in the ordinary way to bear fruit from the defendant authority in due course.

42. However, on any reasonable view, in my judgment, there plainly was an important change in the facts in around November 2010, as the claimant has described in her witness statement in these proceedings. There was a breakdown in the relationship between the claimant and her grandmother. There is all the difference in the world, in my view, between a person knowing that at some point in the future they may have to leave accommodation and a person being told that they will not have somewhere to sleep that night. No reasonable public authority, in my judgment, could come to a different conclusion when asked: are those two scenarios exactly the same or are they different?

Decision quashed. Costs to the Claimant.

Comment
The test in Fahia and confirmed in Rikha Begum was clear. It is a little surprising that Birmingham fought this one all the way to final hearing. Where the applicant had submitted a different reason for homelessness to a previous application, any inquiries into that new reason properly fall under s.184 and are not ‘extra statutory’ inquiries. Reading between the lines of the argument and documents referred to in the judgment, there also appears to have been some post facto reasoning in the response to the JR claim over the refusal of the third application, an impression not helped by the absence of evidence from the review officer.

However, the judgment serves to confirm that a Local Authority cannot simply decide that there an application is being made on the same facts as a previous one when the application itself suggests otherwise.It may well be the case that there are no relevant new facts (though no view intended on Ms Mays’s case), but where there are prima facie new facts, this is a matter for inquiries under s.184.

Posted in FLW case note, Homeless, Housing law - All and tagged . RSS feed for this post and comments.

About

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 +

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