Our post on Nzolameso v City of Westminster [2015] UKSC 22 is here, but behind the headlines of the judgment (and it is a good judgment) is a whole history, even between the Court of Appeal and Supreme Court hearings.

R(N) v Westminster City Council [2015] EWHC 799 (Admin) (26 February 2015) [Not on Bailii, we’ve seen a transcript.] This was anonymised, due to the children’s involvement. But given the public statements by the Claimant and the unanonymised Supreme Court judgment, the linkage should be clear.

This was a judicial review of Westminster’s refusal to provide temporary accommodation pending determination of Ms N’s application for permission to appeal to the Supreme Court.

Following the initial section 204 appeal decision against her, Westminster had terminated Ms N’s temporary accommodation. As Ms N was then street homeless, Westminster took her five children into foster care (It appears that this was at Ms N’s request, or initial agreement) in February 2014. They did not accommodate Ms N with her children under s.17 Children Act 1989 powers. There had been a previous JR challenging Westminster’s refusal to provide temporary accommodation pending the Court of Appeal hearing, given permission but dismissed. There had been a further JR following the Court of Appeal granting permission to appeal, which had been compromised on Westminster accommodating Ms N, but not her children (who remained in foster care). Then came Court of Appeal dismissal of Ms N’s appeal, at which point Ms N’s accommodation was again terminated by Westminster.

Ms N applied for judicial review and interim relief on Westminster’s failure to provide temporary accommodation pending the appeal to the Supreme Court. Interim relief was granted for Ms N, but her children remained in foster care.

At the return hearing, the issue was whether Westminster’s refusal was a lawful exercise of its discretion to provide accommodation under s.204(4)(b)(i) “if an appeal is brought until the appeal (and any further appeal) is finally determined.”

The Court reminded itself of the high threshold for a mandatory, rather than prohibitory injunction, of a ‘strong prima facie case’, via Francis V Kensington and Chelsea Royal London Borough Council [2003] 1 WLR 2248, then went on to the criteria for the exercise of the discretion to accommodate pending appeal in R v Camden London Borough Council ex parte Mohammed [1997] 30 HLR 315.

“In carrying out that balancing exercise, it is clear that there are certain matters which will always require consideration. First, the merits of the case itself and the extent to which it can properly be said that the decision was one which was either apparently contrary to the merits of the case or was one which required a very fine balance of judgment which might go either way.

Second, it requires consideration of whether there is any new material, information or argument put before the local housing authority which could have a real effect upon the decision under review.

Finally, it requires consideration of the personal circumstances of the Applicant and the consequences to him or her of an adverse decision on the exercise of discretion. It may well be that in some cases other considerations may prove to be relevant.”

In this case, there were only two real issues, the merits of the case and the circumstances of the applicant.

On the merits of the case, permission to appeal to the Supreme Court had been granted.

The claimant relies heavily on the grant of permission by the Supreme Court. The claimant also tells me by his counsel that there are three interveners now involved in the Supreme Court hearing, including the Secretary of State for Communities and Local Government, who, so I am told, intervenes, to some extent at least, in support of the claimant’s proposition that the Council misapplied certain guidance in making its decision. The defendant argues that this appeal is unlikely to succeed and relies on the fact that the appeal has failed both at the County Court and in the Court of Appeal. The defendant by its counsel says that the Council’s conclusion that this appeal is unlikely to succeed in the end is well within the Council’s competence and discretion.

I disagree, to an extent, with the claimant’s counsel that the fact of permission being granted in this case raises any sort of presumption, changes the balance or leads to a greater likelihood that interim relief should follow. It is, in my judgment, simply an important factual aspect for this court to take into account, because the grant of permission by the Supreme Court signals that there is merit in this case. I am not able to say on a short hearing this morning, without a deep understanding of the wider issues in the appeal, what the likelihood is of this appeal succeeding, but I am satisfied that there is merit in the appeal, and obviously so, because if the appeal lacked merit the Supreme Court would not have granted permission.

If it had to be decided, the Court wold find that “the grant of permission by the Supreme Court does put this case in the very fine balance of judgment which could go either way in category”, but that would not be sufficient to warrant the exercise of the discretion in Ms N’s favour.

The matter therefore turned on the applicant’s circumstances.

The situation was that

the claimant has five children currently in foster care. They have been in foster care now for a year since the date that the claimant had nowhere to live and was compelled to ask for help from the local authority in looking after her children.

Family Court proceedings were ongoing, involving potential final orders putting the children in foster care. The Judge in those proceedings had indicated that he might be minded to order the children to be returned to their mother for the period up to the Supreme Court judgment at least, if suitable accommodation was ordered to be provided by the present court. But if the accommodation was not ordered, then the children would remain in foster care and potentially final orders made for foster care.

Westminster’s officer, in deciding not to exercise the discretion to accommodate pending appeal, had rightly identified that the children’s future was a matter for the family court. However, the decision letter, despite a lengthy section on the family situation, did not address the likely effects.

As I read this letter there is, I regret, no single pithy encapsulation of what the conclusion is and I invite anybody reading this judgment simply to read the entirety of the section in the letter headed “Personal Circumstances”. It is, in my view, strongly arguable that the decision‑maker did not recognise the very serious consequence of her decision to continue to refuse housing on an interim basis, that consequence being that the care orders were likely to be continued but that the family would continue to live apart and that this could become a final and irreversible situation. It was not, in my judgment, adequate simply to point to the possibility that the guardian might apply to revoke care orders, in due course, if mother were to find suitable housing.

So it is, in my judgment, strongly arguable that the highly and unusual compelling circumstance of the mother’s personal circumstances were left out of account, or unduly minimised, in the Council’s evaluation of the claimant’s request for accommodation. If that is right, and if a court hearing the substantive judicial review were to find that, that would be a material error which would justify the grant of judicial review.

Further, Westminster’s decision letter had relied on allegations that Ms N had failed to co-operate in seeking accommodation. While there was a period in dispute, by the time of the decision, Ms N was unquestionably co-operating, but no suitable private accommodation could be found [no doubt due to the benefit cap]

As a result:

in my judgment, this is an exceptional case. In no other case I have been shown this morning has the court approved a council’s decision not to rehouse on an interim basis pending appeal, where the consequence of that refusal has been the likely break up, possibly on a permanent basis, of a family including young children.

Interim relief was continued. Westminster had to accommodate Ms N pending the Supreme Court judgment. And, as we now know from the Supreme Court decision, the family court did indeed order her children returned to her.

Comment

The truly remarkable thing in this case is that Westminster were prepared to make a decision on interim accommodation pending appeal without even adequately addressing the very real prospect that the refusal might mean the permanent separation of Ms N and her children. It appears that the decision maker didn’t even ask Children’s Services or Westminster’s legal team what the significance and possible outcomes of the family proceedings were.

And, what is more, Westminster were prepared to fight to defend the decision in these proceedings, even when they knew exactly what the potential consequences were, up to the possible, even probable, permanent separation of the family. The hearing in the family proceedings referred to in the judgment had taken place the day before.

Let me put this simply. Rather than provide temporary accommodation for a period of 3 or 4 months pending the hearing and judgment on an appeal to the Supreme Court, Westminster were content for Ms N to be separated from her children, possibly permanently, and their Children’s Services department were actively pursuing that route.

It is no wonder that the Admin Court sounded somewhat startled by the choice that Westminster were asking it to make in the last passage quoted above. An ‘exceptional case’ – and as such, hard to see how Westminster could have refused to exercise its discretion to accommodate.

As we now know, Westminster lost in the Supreme Court. They lost so badly that the Supreme Court made an immediate judgment, with reasons to follow. That judgment made clear that something had gone badly awry with Westminster’s decision making. This judgment suggests it is not confined to decisions on out of borough accommodation.

I can only imagine what the Supreme Court judgment, given by Baroness Hale, would have looked like had there not been this order for interim relief and the reuniting of the family that followed, before the Supreme Court hearing.