Archive for the 'Homeless' Category

Right of residence and children in education

Published
by
NL
on 26/02/2010
in FLW case note, Homeless and Housing law - All
. 16 Comments

LB Harrow v Ibrahim C‑310/08 on reference from the Court of Appeal (LB Harrow v Ibrahim and another [2008] EWCA Civ 386. Our note here).

The question was whether:

(a) children of EU citizens who have installed themselves in a member state during the exercise by their parents of rights as residence as workers in that state are entitled to reside in the state in order to attend general educational courses;

(b) a parent who is the primary carer of those children – irrespective of his or her nationality – is entitled to reside with the children in order to allow the children to exercise that right. The fact that the parent who is a citizen of the EU is no longer working in that state and has left the state is irrelevant;

Mrs Ibrahim is the wife of a Danish man, who worked for a period in the UK. Following an illness and a period on benefits, Mr I’s right to reside ended and he returned to Denmark. However, Mrs I and their four children, who had joined Mr I, remained in the UK and the children had been in school throughout. Mrs I applied as homeless and Harrow refused her as ineligible.

The Court of Appeal referred the following questions to the European Court:

(1) do the spouse and children only enjoy a right of residence in the United Kingdom if they satisfy the conditions set out in Directive 2004/38 of the European Parliament and of the Council of 29 April 2004?;

OR

(2) (i) do they enjoy a right to reside derived from Article 12 of Regulation (EEC) No 1612/68 of 15 October 1968, as interpreted by the Court of Justice, without being required to satisfy the conditions set out in Directive 2004/38 of the European Parliament and of the Council of 29 April 2004; and

(ii) if so, must they have access to sufficient resources so as not to become a burden on the social assistance system of the host Member State during their proposed period of residence and have comprehensive sickness insurance cover in the host Member State?;

(3) if the answer to question 1 is yes, is the position different in circumstances such as the present case where the children commenced primary education and the EU-national worker ceased working prior to the date by which Directive 2004/38 of the European Parliament and of the Council of 29 April 2004 was to be implemented by the Member States?

On (1) and (2) the European Court found that, following Case C‑413/99 Baumbast and R [2002] ECR I‑7091 and Case C‑7/94 Gaal [1995] ECR I‑1031, it was clear that a child’s right to reside under Art 12 was independent of Articles 10 and 11, regardless whether the parent who is a citizen of the union has ceased to be a migrant worker in the host state. A refusal to allow the parent with care to reside during the children’s education would deprive the children of their right under Art 12. In paragraph 23 of Gaal, the Court expressly stated that Article 12 of Regulation No 1612/68 contains no reference to Articles 10 and 11 of the regulation.

Further

as is apparent from the very wording of Article 12 of Regulation No 1612/68, the right to equal treatment in respect of access to education is not limited to children of migrant workers. It applies also to children of former migrant workers.

The right derived by children from Article 12 of Regulation No 1612/68 is also not dependent on the right of residence of their parents in the host Member State. It is settled case-law that Article 12 requires only that the child has lived with his parents or either one of them in a Member State while at least one of them resided there as a worker (Case 197/86 Brown [1988] ECR 3205, paragraph 30, and Gaal, paragraph 27).

To accept that children of former migrant workers can continue their education in the host Member State although their parents no longer reside there is equivalent to allowing them a right of residence which is independent of that conferred on their parents, such a right being based on Article 12.

Directive 2004/38 did not alter Art 12, as contended by Harrow and the UK. Where that directive amended Art 10 and 11, it did so specifically, and the absence of specific address to Art 12 showed the intention of the European legislature. Indeed, the directive was intended to be consistent with Baumbast. There was no intention to limit Art 12 to a mere right to access to education. Directive 2004/38 has the stated purpose of strengthening the right of free movement, but if it replaced Art 12 in the same way as it did Art 10 and 11, then the Art 12 right would be more restricted that before.

On sufficient resources, there is no requirement in Article 12 for self sufficency and, following Baumbast, the Article must not be rendered ineffective.

The Court, in a case where it had to rule on whether children who were resident in the Member State in which their father, a national of another Member State, had been employed before returning to his State of origin were entitled under Article 12 of Regulation No 1612/68 to State assistance intended to cover the costs of their education, the maintenance of them and their dependants and sickness insurance, held, without ruling on the economic situation of the students in question, that the status of children of a worker who is a national of a Member State within the meaning of Regulation No 1612/68 implies, in particular, that it is recognised in European Union law that such children must be eligible for study assistance from the State in order to make it possible for them to achieve integration in the society of the host Member State, that requirement applying afortiori where the persons covered by the provisions of that regulation are students who arrived in that State even before the age at which they had to attend school (Cases 389/87 and 390/87 Echternach and Moritz [1989] ECR 723, paragraph 35).

Therefore

the answer to the first two questions is that, in circumstances such as those of the main proceedings, the children of a national of a Member State who works or has worked in the host Member State and the parent who is their primary carer can claim a right of residence in the latter State on the sole basis of Article 12 of Regulation No 1612/68, without such a right being conditional on their having sufficient resources and comprehensive sickness insurance cover in that State.

There was accordingly no need to answer the third question.

In short, where the children of a EU worker have entered education in the UK, then there is a continued right to reside for the children and the parent who is their carer (whether an EU citizen themselves or not) for the duration of the course of education, regardless whether the marriage to the EU worker subsists or if the EU worker remains in the UK. This is an independent right belonging to the children. There is no requirement for self-sufficiency on the part of the family or parent with care. The family therefore has a right to reside and eligibility for support, including housing.

Case C‑480/08 Texeira v LB Lambeth (on reference from Teixeira v London Borough of Lambeth [2008] EWCA Civ 1088 (our report here) ) has also been decided. The basic issues on reliance on Art 12 were the same, with the additional questions being:

i) must the child have first entered education at a time when the EU citizen was a worker in order to enjoy a right to reside, or is it sufficient that the EU citizen has been a worker at some time after the child commenced education?;

and

ii) does any right that the EU citizen has to reside, as the primary carer of a child in education, cease when her child attains the age of eighteen?

On i) the European Court found that it is sufficient that the child became installed in the host country at a time when a parent was a worker and there was no requirement that the child must have started education at a time when the parent was a worker.

On ii)

the right of residence in the host Member State of the parent who is the primary carer for a child of a migrant worker, where that child is in education in that State, ends when the child reaches the age of majority, unless the child continues to need the presence and care of that parent in order to be able to pursue and complete his or her education.

Overall, Ibrahim was a big case for Shelter and Nicola Rogers to bring and a significant decision. Naturally the Daily Mail didn’t like the result, apparently on the basis that Mrs Ibrahim has a 36 inch TV and a Playstation, this apparently being sufficient to make the law an ass. I wonder if the practical benefit of the decision for the Mail’s ex pat readership on the fringes of the Med had occurred to them?

Tiexiera was brought by Hanse Palomares, Adrian Berry and R. Gordon QC acting.

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Missing letters, Reviews and Determinations of Civil Rights

Published
by
NL
on 18/02/2010
in FLW case note, Homeless and Housing law - All
. 15 Comments

Tomlinson & Ors v Birmingham City Council [2010] UKSC 8

This is the Supreme Court judgment on the appeal from the Court of Appeal of what was then called Ali & Ibrahim v Birmingham City Council [2008] EWCA 1228 [our report here]. At issue was whether the Housing Act 1996 s.202 review and s.204 appeal to the County Court procedure was compatible with Article 6 of the European Convention on Human Rights. Or pace Lord Hope:

i) Does an appeal under section 204 of the 1996 Act involve the determination of a “civil right” for the purposes of article 6(1) either generally or in cases such as the present ones where the issue is simply one of fact?
ii) If so, does article 6(1) require that the court hearing such an appeal must have a full fact-finding jurisdiction so that it can determine for itself a dispute of fact either generally or in a case such as these?
iii) If so, can section 204 of the 1996 Act be read compatibly with article 6(1) so as to entitle the county court to exercise that jurisdiction? If not, then a declaration of incompatibility will have to be made.

The short answer by the Supreme Court is:

i) no it doesn’t; and
ii) possibly obiter in view of i) but, no it doesn’t; and
iii) doesn’t arise

With the surprise ending out of the way, let’s look at how the Court got there, as this was a case where, as Lord Hope announced in the main judgment, the Court took ‘the opportunity to introduce a greater degree of certainty into this area of public law’.

A little history
The appellants had both made homeless applications to Birmingham CC and Birmingham had accepted the full housing duty. Both had been made offers of permanent accommodation which they had refused as unsuitable. Birmingham decided they were suitable and discharged duty under s.193 Housing Act 1996. Both applied for review and raised the issue that they had not received offer letters setting out the consequences of refusal as required under s.193(5). Birmigham said that the letters had been sent. Both s.202 reviews upheld Birmingham’s view that the letters were sent and had been received and that the offers were suitable. The s.202 reviews were carried out by more senior officers of Birmingham CC as per the standard review process. Both appellants appealed to the County Court under s.204 and sought to raise non-receipt of the letter as a factual issue to be determined. In both cases, the court refused to consider this on the basis that appeal was on points of law only and that factual issues were for the Council to determine.

The appeal to the Court of Appeal was on the basis that discharge of duty under s.193 was a determination of a civil right, that Art 6 was thereby engaged and that restricting determination of fact to the local authority was not compatible with the Art 6 requirement for determination by an independent tribunal. The Court of Appeal held that the matter fell under Runa Begum v Tower Hamlets LBC [2003] UKHL 5 and that the finding in Tsfayo v UK [2006] ECHR 981 did not change it.

The Supreme Court
The Appellants argued on the main Art 6 point that:

the right to accommodation under section 193 of the 1996 Act is a civil right within the meaning of article 6(1) of the Convention. [...] The effect of the statutory scheme was to confer on the appellants an entitlement to accommodation. This was a right, the correlative of which was a duty on the local housing authority which subsisted until it ceased to be subject to the duty in one or other of the ways provided for by the statute. The right to accommodation was an individual economic right which flowed from specific rules laid down in a statute, according to the Strasbourg court’s reasoning in Salesi v Italy 26 EHRR 187 and Mennitto v Italy 34 EHRR 48. From this it followed that the reviewing officer’s decision, which brought that right to an end, was a determination of the appellants’ civil rights within the meaning of the article.

and

Although a right to accommodation was a right to a benefit in kind rather than a right to a financial payment or a subsidy. But he said this did not in itself disqualify it from being a civil right. A series of Russian cases beginning with Teteriny v Russia, application no 11931/03, 1 July 2005, BAILII: [2005] ECHR 449, and ending with Nagovitsyn v Russia, application no 6859/02, 24 January 2008, BAILII: [2008] ECHR 73, indicated the contrary. It was held in those cases, which arose out of failures to comply with judgments by which the applicants were to be provided with accommodation of a certain size in a specified location, that there had been a violation of article 6(1).

Birmingham did not mount a challenge to this argument, preferring to take the view that if this was a civil right, it was at the border of such cases. Birmingham preferred to deal with the specific cases before them.

However, the Secretary of State for Communities and Local Government, intervening, mounted a full scale opposition to the ‘right to accommodation’ being a civil right for Art 6(1) purposes, on the basis that this would have wide ramifications for administrative practice in many area, not just homeless decisions. The SoS argued that:

Strasbourg case law had limited civil rights to those which were related to individual economic rights which were enforceable through the courts. Any right under section 193 was subject to a large number of decisions that were left to the judgment of the local housing authority. There was also a judgmental decision as to how any such right was to be delivered, as the duty under section 193 was merely to secure that accommodation was available. The inclusion of benefits in kind such as these in the determination of rights protected by article 6(1) was a step further than the Strasbourg court had gone, and this Court should decline to take it.

Lord Hope’s main judgment, with which Lady Hale and Lord Brown agreed, traced the history of cases before and after Runa Begum. His view is that the European cases before Begum, in as much as they applied to public benefits had initially been concerned with benefits analogous to private insurance and then extended in a limited manner to social benefits not analogous to private insurance but where what was at issue was a specific sum of money not at the discretion of the authority concerned and where the decision at issue was directly decisive for the benefit at issue (Salesi v Italy 26 EHRR 187, Mennitto v Italy 34 EHRR 1122).

In Runa Begum (2003), the House of Lords declined to take a step further than the existing Strasbourg case law and, while declining to decide whether a right to accommodation under Part VII Housing Act 1996 was a civil right, there were clear indications in the opinions of Lords Millett, Hoffmann and Bingham that they would, if pressed, decide against, principally on the basis that there was too large a degree of discretion in the provision of accommodation for it to be equated to a right to a specific sum.

Since Begum, there has been Tsfayo v United Kingdom 48 EHRR 18. However, in Tsfayo it was not disputed that the case concerned the determination of a civil right and the case fell within the mainstream of those mentioned above. Tsfayo takes the court no further on the issue of a benefit in kind as a civil right.

Stec v United Kingdom (2005) 41 EHRR SE295 and Loiseau v France application no 46809/99, 18 November 2003 appear to contain suggestions that a civil right is an ‘assetable right’ akin to a ‘private right arguably recognised under domestic law’ or ‘an individual right of which the applicant may consider himself the holder’. These suggestions do not support the view of a benefit in kind as a civil right. Lord Hope quotes himself in R (A) v Croydon London Borough Council [2009] UKSC 8, where the issue was argued, as saying ‘it could be asserted with reasonable confidence that the local authority’s duty, which is to provide accommodation for any child in need within their area who appears to them to require accommodation as a result of the factors mentioned in that subsection, did not give rise to a civil right’.

The Russian cases, while they did concern accommodation, were all about judiical orders that accommodation be provided. There was a clear argument for taking entitlement by judicial order as a civil right, but this was distinct from the right asserted here.

On this basis, Lord Hope finds:

I would be prepared now to hold that cases where the award of services or benefits in kind is not an individual right of which the applicant can consider himself the holder, but is dependent upon a series of evaluative judgments by the provider as to whether the statutory criteria are satisfied and how the need for it ought to be met, do not engage article 6(1). In my opinion they do not give rise to “civil rights” within the autonomous meaning that is given to that expression for the purposes of that article. The appellants’ right to accommodation under section 193 of the 1996 Act falls into that category. I would hold that article 6 was not engaged by the decisions that were taken in the appellants’ cases by the reviewing officer. [para 49]

On the issue of whether the review/appeal process was Art 6 compliant, although there was no need to find on it, Lord Hope adds that while the argument that the issues in these cases were perhaps closer to Tsfayo than Begum in that the questions at stake were purely ones of fact, whether the letters were received or not was only:

one among a number of questions that had to be addressed to determine whether the respondents’ duty under section 193 had been discharged. They are dealt with together in section 193(5) in a way that shows that they are all interlinked. The scheme of the Act is that they are to be dealt with together both at the initial stage and, in the event of a review, by the reviewing officer. To separate out questions as to whether the formalities laid down by the subsection were complied with from those as to whether the accommodation was suitable would complicate a scheme which, in the interests of speed and economy, was designed to be simple to administer. [para 53]

The decision about whether the letter was received or not was only a staging post along the way. In any event the ECtHR had not given any indication that it disapproved of Runa Begum. The ratio of the decision in Begum should be applied and on that basis “the absence of a full fact-finding jurisdiction in the court to which an appeal lies under section 204 does not deprive it of what it needs to satisfy the requirements of article 6(1).” [para 54].

Lord Collins agrees with Lord Hope, with some further discussion of the Strasbourg cases.

Lord Kerr also agrees, but with more misgivings. He had difficulty in finding a principled distinction between social security payments and social welfare provision, but the lack of analogy with private insurance and the extent of discretion in both establishing entitlement and discharging the duty in the ‘right to accommodation’ indicate the difference.

Lord Kerr is also uneasy about judicial review (principles) being sufficient review by an independent tribunal of an administrative review decision. Where the purpose if to remedy a lack of independence at first instance (Tsfayo) and the issue at stake is a purely factual one, judicial review seems inapt, although suited to consideration of evaluative decisions.[para 78]

Nevetheless, Runa Begum continues to ‘occupy this field’, and it is true that Part VII decisions partake of both factual inquiry and discretionary judgment. ‘The nature of the scheme as a whole dictates the answer’.

Brief comment (pending further thought)
I doubt that this judgment comes as a surprise to many. The Court of Appeal more or less sent the case on its way to the Supreme Court with a request that the Art 6/Civil right issue be clearly determined and so it has been. The perceived danger of the spread of the judicialisation of dispute procedures into the administrative realm is set out clearly.

I confess to finding the arguments based on the extent of the discretion involved in the evaluation of whether a duty is owed under Part VII to be perhaps exaggerated, and maybe likewise the views on the extent of the discretion over the means by which the duty to accommodate may be discharged. However, it is clear that the view that ‘the content of the statutory duty lacks precision’ (Lord Collins) is what enabled the Court to separate a right to accommodation from a right to benefits.

Strong rumour has it that this case may now be taken to Europe. Given the analysis of the Strasbourg cases on the issue set out in this judgment, that certainly would settle the question of whether the ECtHR has reached the limit of its expansion of the concept of a Civil Right under Art 6 or not.

In the meantime – business as usual.

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Advice and assistance

Published
by
NL
on 03/02/2010
in FLW case note, Homeless and Housing law - All
. 0 Comments

R(Savage) v LB Hillingdon [2009] EWHC Admin 88 [not on Bailii yet, available on Lawtel].

Ms S applied to Hillingdon Council as homeless following a possession order on her private rented accommodation on grounds of rent areas. Hillingdon provided temporary accommodation then found she was homeless, eligible and in priority need, but intentionally homeless (it didn’t help that Hillingdon housing advice had previously told her to set up a direct debit for her rent). Ms S did not ask for a review and it was accepted that she was intentionally homeless.

Hillingdon’s s.184 letter quite rightly stated that Hillingdon had a duty to offer her ‘advice and assistance’ to find her own accommodation. Ms S contacted their housing options team. She was then told that she was not eligible for the finders fee scheme (in which the council provides the deposit/rent in advance on a private tenancy up to £1500) because she was intentionally homeless.

Ms S, via solicitors, first sought a late review – which was refused – then, once evicted from temporary accommodation and once social services had said that they would take her son but not accommodate her, and on a further refusal to provide fee finders assistance, she applied for JR of the refusal to consider her for the fee finders scheme. Interim relief included accommodation, continued on permission.

The Claimant argued that
i) the Council did not carry out any proper assessment of C’s housing needs in accordance with s.190(4) Housing Act 1996
ii) The Council failed to provide any or proper advice and assistance to C pursuant to s.190)2)(b) HA 1996
iii) The Council adopted a rigid approach or fettered its discretion with regard to the advice and assistance provided, including in regard to the fee finders scheme.
iv) the Council had failed to secure accommodation ‘for a reasonable period’, pursuant to s.190(2)(a) HA 1996.

Hillingdon’s argument was
i) the issues raised could have been raised on s.202 HA 1996 review, so JR was not appropriate
ii) excessive delay
iii) none of the Claimant’s argument were the case.

Held:
although there was no formal written assessment of housing needs, there didn’t have to be. Hillingdon has carried out the required assessment, even though it mostly pre-dated the s.184 decision. It was ‘wholly unrealistic’ to expect a wholly fresh assessment.

Advice and assistance did not have tone such as will ensure that suitable accommodation is available, s.192(2) HA 1996. S.206(1)(c) deals with the provision of accommodation under s.193 and does not qualify s.192. Advice and assistance may indeed not lead to accommodation. There may be litle advice and assistance that can be offered, but that little was offered here.

The Art. 8 argument advanced did not assist the claimant. Even when social services offered to take her son but not accommodate her, the claimant retained a choice – to remain homeless and keep the family together (!).

The Council, as shown by the s.184 letter, was well aware of the Claimant’s personal circumstances. It could not be said that they had not been taken into account.

On fettering of discretion, however, the fee finders scheme option was not considered flexibly. There was evidence that the Council had simply refused to consider her for the scheme due to the finding of intentional homelessness and advised her so. The initial decision was not reconsidered and the case was not discussed with a team leader, as set out in the Council’s policy, in the light of the Claimant’s circumstances. While the policy was not rigid in stating that the intentionally homeless would not usually be eligible for the scheme, the policy was applied as if it were rigid. In this respect the provision of advice and assistance under s.190(2)(b) was unlawful.

On the reasonable length of time to be provided for the claimant to find alternative accommodation, Conville v Richmond Upon Thames [2006] 1 WLR 2808 provides that it is for the Council to decide what is a reasonable opportunity. It is not a duty to provide long term accommodation and the efforts of the applicant to find accommodation are relevant. There was no evidence that the Council had applied a fixed period here, in view of the information it had about the Claimant. In fact the stated 28 days given had been far exceeded. The Claimant had had something like 8 months by the time she was evicted.

On the s.202 review issue, s.202(1)(b), raised by the Council, appears to relate to the existence or not of duties under s.184 and not with the discharge of those duties – in that case s.202(1)(f) would be otiose.

Further Conville had proceeded by Judicial review without any suggestion that s.202/s.204 was the appropriate route. However R (Ahmed) v Waltham Forest LBC [2001] EWHC Admin 540 appeared to find the opposite.

It was not necessary to decide in this case as the Council had accepted it would be helpful to have guidance on these statutory provisions and grant of permission had not been opposed for that reason. Further it was not clear that s.202(1)(b) would permit the determination of such issue on review and county court appeal.

Delay in bringing the claim did not pertain to the issue of advice and assistance – it was an on-going duty.

Overall, the Council’s failure to comply with its own policy on the fee finder scheme was unlawful and capable of remedy.

Hillingdon have amended the fee finders scheme policy in the interim. How is not stated.

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Gatekeeping and an absence of records

Published
by
NL
on 30/01/2010
in Homeless and Housing law - All
. 0 Comments

Local Government Ombudsman’s decision:  London Borough of Hammersmith & Fulham (09 001 262)

‘Ms Kenza’ (not her real name) approached LB Hammersmith and Fulham as homeless when she had to leave her private rented home following an incident of domestic violence. She was 8 months pregnant.

Hammersmith did not place her in temporary accommodation pending enquiries. Instead officers encouraged her to find accommodation in the private sector. A homeless application was not mentioned by the officers. She was later given a night’s accommodation by the out of hours service and, she asserted, she then spent 4 days sleeping rough in a park.

She complained to the Ombudsman that Hammersmith had failed to give her adequate advice and assistance and also complained of sexual and racial discrimination.

The Ombudsman found that Ms Kenza “suffered some injustice because she was not provided with the level of support and assistance she could reasonably expect as a person who was homeless and in priority need”.

Further, the Ombudsman found maladministration causing injustice.

The standard of record keeping by housing officers in this case was so poor that it hindered the Ombudsman’s investigation of the complaint and fell so far below acceptable standards that it amounted to maladministration.

He said: “It has not been possible to resolve some conflicts of evidence because of the absence of detailed contemporaneous notes recording housing officers’ contact with Ms Kenza, [voluntary agency] caseworkers and other professionals.”

Officers did not consider taking a homelessness application from Ms Kenza after she left her accommodation even though she had told a housing officer she was homeless. The Council applied too strict a test when deciding whether it should provide Ms Kenza with temporary accommodation by insisting she provide proof of homelessness first. The Council also failed to follow its own procedures for referring victims of domestic violence to a specialist domestic violence housing advocate for support and advice. The liaison and exchange of information between officers in the Children’s Service and Housing Service about a vulnerable service user was also ineffective.

However, in the absence of any specific incident or comment made by an officer, the Ombudsman did not uphold Ms Kenza’s complaint that she was subjected to racial and sexual discrimination.

The Ombudsman recommended that the Council apologise to Ms Kenza and pay her £750. In addition the Council should:

  • remind all housing officers of the need to maintain accurate and detailed records of their contacts with service users and their advisers and advocates;
  • review its systems for sharing information between Children’s Services (and Adult Services in relevant cases) and the Housing Service about vulnerable service users;
  • ensure that the established procedure for referring service users to the domestic violence housing advocate are followed; and
  • ensure that all forms used by the Housing Service are dated and ensure that records of service users placed in emergency accommodation by the Out-of-Hours Service are copied to the housing officer responsible for the case.

Impressive work there by LB Hammersmith and Fulham, compounding gatekeeping with incompetence. In case anyone from the Council is reading, let me remind you of the wording of s.188 Housing Act 1996, with a little emphasis.

188. Interim duty to accommodate in case of apparent priority need. — (1) If the local housing authority have reason to believe that an applicant may be homeless, eligible for assistance and have a priority need, they shall secure that accommodation is available for his occupation pending a decision as to the duty (if any) owed to him under the following provisions of this Part.

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Transfers and rent arrears

Published
by
Dave
on 29/01/2010
in Allocation, FLW case note, Homeless and Housing law - All
. 1 Comment

The question of the interaction between housing debt and prioritisation for an allocation under Part VI, Housing Act 1996, appears to have been in issue in R(Osei) v Newham LBC Lettings Agency, decided on 27.01.10.  I say “appears to” because, as of yet, no transcript is available – summaries appear on Lawtel and Lexis – and I for one would be grateful of sight of the full transcript (hint hint to Alison Meacher/Hereward & Foster [who acted for Ms Osei] and Lindsay Johnson/Newham [for Newham]).  Essentially, the question was whether it was appropriate for Newham’s choice-based lettings agency to decide that Ms Osei’s rent arrears were sufficient to reduce her priority when bidding for properties.  Ms Osei appears to have had a terrible time of it.  She was a victim of domestic violence and applied for an out-of-borough transfer with her two children (she was also pregnant).  Her application was supported by a variety of agencies (the LA’s domestic violence team, their ASB team, and a child protection plan also supported her application for an urgent need for re-housing).  Newham’s lettings agency initially accepted her application but only subject to her clearing her former tenancy rent arrears (which would, on any view, have been unlawful unless Newham found her to be ineligible).  They subsequently issued a decision-letter which said that Ms Osei was entitled to emergency re-housing; but, given the number of households entitled to such priority, Ms Osei’s rent arrears were such that she would rank with a lower priority so that it was unlikely she would be made an offer of accommodation; the lettings agency was not minded to exercise its discretion to rehouse her.

Ms Osei argued (a) that the local authority had fettered its discretion by making the issue of the rent arrears the absolute priority consideration without regard to her personal circumstances and the danger she was in; and (b) the lettingss agency failed to give adequate reasons.  It should be said that Newham also put in a supporting witness statement.

Lord Carlile QC, sitting as a Deputy Judge, held that Ms Osei’s circumstances had been taken into account and the agency had been satisfied that Ms Osei’s case was not such an exceptional one as to enable her debt to be disregarded.  Certain of the correspondence had not been “felicitously phrased, and suggested a restrictive approach by the agency to debt” but, applying Holmes-Moorhouse (presumably Lord Neuberger’s judgment in relation to section 202/204 decision letters, discussed in NL’s post on that case), such letters were not to be read as statutory provisions and the decision-letter clearly set out Ms Osei’s domestic situation as well as the regard had to that situation.  On the inadequate reasons point, it was held that there is no particular form for the giving of reasons “… and having regard to the knowledge that [Ms Osei] and her solicitors could be taken to have had it was clear that sufficient reasons had been given for the agency’s decisions” (applying R(M) v Hackney LBC [2009] EWHC 2255 – links to our note, see [35] of the judgment).

There’s a lot going on here that requires some background information – hence the need for a transcript!

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Don't answer the phone…

Published
by
NL
on 10/01/2010
in FLW case note, Homeless and Housing law - All
. 10 Comments

Makisi v Birmingham City Council (Birmingham County Court Appeal Ref: BM9 0166A, 6 Jan 2010)

This was the County Court hearing of a s.204 Housing Act 1996 appeal following s.202 review of a decision that an offer of accommodation was suitable and reasonable to accept, and subsequent discharge of duty under s.193. It is only a County Court appeal decision, but there are some interesting points on the review process worth noting.

Ms Makisi had applied as homeless, with her three young children. Birmingham had accepted the full Housing Act 1996 duty. The property, a three bed property, was agreed to be suitable in itself, but Ms Makisi requested a review of the decision on the basis of the distance from her 6 yo son’s school, about 2 miles, which would mean a bus trip and a walk at either end. It was important that her son remain at that school as he has autistic spectrum disorder which affects his comprehension, ability to communicate and to relate to others, attention and cognition. There were extensive special needs statements and reports, which were before the reviewing officer. Ms Makasi’s objection to the property was that she wold have to take her son (and with her the two infant children) to the school on the bus and the walk each morning and back each afternoon. Her son’s behavioural difficulties made that journey potentially dangerous, both for her son and others on the bus, in various ways, making the location of the property unsuitable and not reasonable as permanent accommodation for her.

Ms Makasi accepted the property, but then requested a review. The submission set out the problems faced in relation to her son and the dangers to her son and others. After a few weeks and a further letter of submissions, the reviewing officer called Ms Makisi and the same day sent a ‘minded to’ letter, giving an ‘opportunity to respond to issues which I am minded to hold against you’. This stated that:

Your case has been rebooked to be heard on 23 July 2009. If any further information in response to this decision which you would like to be taken into account, you or someone acting on your behalf may make oral representations, further written representations or both oral and written representations.

Ms Makisi’s solicitors wrote stating that Ms Makisi wished to make oral representations in addition to those in writing, ‘in line with the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999′ and asking for a time and date for a meeting.

On 27 July, the Reviewing Officer telephoned Ms Makisi. In what the Reviewing Officer later referred to as ‘a conversation’, it appears that Ms Makisi made statements about the dangers presented by travelling with her son and the Reviewing Officer put questions to her. There was no further evidence about this call. There was no evidence from the Reviewing Officer and Ms Makisi’s statement said simply ‘Through my solicitors I requested a meeting with Birmingham City Council by letter on 21 July 2009. I was advised by telephone by the Council that they do not need to see me in person.’

Ms Makisi’s solicitors sent a further letter requesting an appointment and enclosing some further reports on the son. The Council did not respond but on 14 August sent the review decision, which upheld the suitability of the offer.

On appeal, Ms Makisi argued that:
1. The respondent erred in law in that it failed to take into account the particular difficulties the appellant faced in travelling with her son.
2. The respondent erred in law by taking into an account an irrelevant consideration that the appellant might otherwise use public transport for other purposes, when those journeys might well not be when her son was with her.
3. The respondent erred in law in failing to engage with or address the practical difficulties that the appellant has in alighting from a bus with two other small children as well as her son who is at risk of running off and taking into account irrelevant considerations namely how parents of children without autistic spectrum disorder alight from a bus.
4. The respondent erred in law in failing to apply the test set out in Slater v Lewisham as to the distinct approach to be adopted in considering whether or not the accommodation is reasonable to accept and in substance decided the accommodation was suitable and ergo it was accordingly reasonable to accept.
5. The respondent erred in law in refusing to give the appellant an opportunity to be heard at an oral hearing and in treating her request for the right to make representations orally as discharged by having a telephone call with her.

Grounds 1 to 4 were dealt with fairly quickly. Taking a ‘realistic and practical’ approach to the review decision letter which was to be read as a whole, the reviewer had addressed herself to ‘the challenging nature of the journey, to the fact that the son’s behaviour would be difficult wherever and whenever the appellant attempted to travel with him – which she was entitled to take into account. While Ms Makisi’s difficulties were no doubt very real, it could not be said that the reviewing officer had failed to engage with them in any meaningful way. Matters of fact were for the Council and the margin of appreciation was wide. The letter may have contained stock phrases, but, taken as a whole, had grappled with the issue of whether it would be reasonable for Ms Makisi to accept the accommodation without wholly running together suitability and reasonableness.

Ground 5 underwent rather greater consideration.

The issue was whether the reference to ‘representations [...] orally or in writing or both orally and in writing’ in Regulation 8(2) Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 was a) engaged, and if so b) meant in person.

Birmingham argued that the ‘minded to’ letter of 15 July 2009 did not raise a ‘deficiency or irregularity in the original decision or the manner in which it was made’, or mention Regulation 8. The obligation only arises if the reviewing officer considers that there are irregularities or deficiencies in the original decision. This was simply volunteering an opportunity for further submission.

Ms Makisi argued that the decision letter of 7 April 2009 was a bare statement of the statutory test and not a statement of reasons, as required, it was thereby defective and Reg 8 was engaged. The Court agreed with this submission. Further, the Reg 8(2) obligations were mandatory. The letter sent mirrored the Reg 8 requirements, even if it wasn’t mentioned. The clear inference on the available evidence was that it was written to satisfy the duty.

The choice as to how to make representations was tentatively found to be the Applicant’s. Why should the Council have the power to limit the way in which the representation is made?

On what constitutes an oral representation, Ms Makisi argued that ‘orally’ meant face to face or at a hearing. Birmingham argued it could be a telephone call.

Lambeth LBC v Johnston [2008] EWCA Civ 690 (our report here) was concerned with the right to make representations rather than the manner in which they were made, but Rimer LJ in that case expressly compared oral representation to oral advocacy and argument in Court. Ms Makisi argued that a telephone call did not give this opportunity. The telephone call was without notice and may have caught Ms Makisi unprepared (although this point was not made in her witness statement) and apparently consisted of the Reviewing Officer asking questions.

As to the sufficiency of the telephone call for Ms Makisi to make her case, this was a matter of fact and there was insufficient evidence to decide it, but the interpretation of the regulations was a significant issue.

Ms Makisi argued that the heading of paragraph 19.12 of the Homelessness Code of Guidance for Local Authorities of July 2006 was ‘Oral hearings’ – the Court observed that the text was the same as Reg 8 and only mentioned ‘representations’.

S.203(2)(b) Housing Act 1996 enabled the Secretary of State to make provision by regulation ‘as to the circumstances in which the applicant is entitled to an oral hearing, and whether and by whom he may be represented at such a hearing’. However, Reg 8 provides for written and oral representations, neither of which are provided for in these terms by s.203(2).

The Court held that the Regulation must be construed by considering the ordinary and natural meaning of the terms in the context of their purpose and the enabling powers. There was no express provision made for a hearing, despite s.203(2). There is a real distinction between oral representations and oral hearings, as oral representations may be made in other ways.

The other review provisions under the 1996 Act – in relation to introductory and demoted tenancies – both have similar enabling provisions to s.203(2), referring to oral hearings. In the subsequent regulations (Introductory Tenants (Review) Regulations 1997) the regulations provide for an oral hearing, unlike Reg 8. Similarly, the Demoted Tenancies (Review of Decisions)(England) Regulations 2004, Regulation 4 sets out the ‘right to an oral hearing’. So, while the Secretary of State had the power under s.203(2) to make regulations providing expressly for an oral hearing, and had done so in these other regulations, there was no such express provision in Reg 8.

Although troubled by this, as a telephone call does not afford the same opportunities for advocacy as a hearing, the Court found that a telephone call could be sufficient for oral representations under Reg. 8.

Appeal dismissed.

A difficult point and the finding perhaps goes against the tenor, if not the letter, of the judgment in Lambeth LBC v Johnston. Is there a second appeal in the offing?

From Ms Makisi, CLP and James Stark, for Birmingham CC, Emily Orme

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Birmingham Council Gatekeeping, with benefit of transcript

Published
by
NL
on 22/12/2009
in Homeless and Housing law - All
. 13 Comments

Kelly & Mehari v Birmingham CC [2009] EWHC 3240 (Admin) [Not on Bailii yet, available on Lawtel]

Following our note here (and the very helpful comment to it) we’ve got the transcript of the judgment. (In fact I’ve had it for a few days, but it has been hell out there, hell I tell you. And that was just the commute.)

This was a hearing of two joined Judicial Reviews (at the new Birmingham High Court) of Birmingham’s treatment of homeless applicants and provision of interim accommodation under s.188(1) Housing Act 1996.

The Claimants argued that Birmingham had a policy or a procedure designed to avoid their duty under s.188 or that their policy gave rise to a risk that in a significant number of cases interim accommodation would not be secured when it should be.

Birmingham argued that in these cases, it was the mistakes of individuals who had failed to properly follow their procedures that was at issue.

So, was it policy or an inadvertent balls up…

On initial application as homeless to Birmingham, a form had to be filled out:

setting out information with regard to immediate accommodation needs (e.g. Question 1: “Are you able to remain at your current accommodation tonight?”). There are notes within the form. After Question 12 (“HB Form completed?” — of course, a reference to a Housing Benefit Claim Form) there is this: “Note: An emergency request form cannot be submitted until a HB form has been completed”. In Questions 17 and 18 there are seven separate questions relating to risk. After the applicant’s signature there is the following rubric: “Upon completion of the interview, unless the applicant and family are at risk of harm, they should be advised to return to the homeless address whereby a visiting officer will attend the property”: in other words, they are to be sent back “home”. There is a later question for the interviewer, “Balance of probability satisfied: Yes: No” — which appears to be a reference to whether, on the balance of probabilities, the applicant would be safe or at risk if he returned “home”.

If ‘emergency accommodation’ was to be offered, then a second form, headed ‘Homeless Application Form: Housing Act 1996, Part VII’ would be completed and this was the starting point for s.184 enquiries. This second form was headed “This personal data will be held and processed by [the Council] to enable the assessment of need and, in particular, the provision of services for which you may be eligible”.

Now I know what you are thinking, that this already looks like gatekeeeping pure and simple, but let us turn to the facts in the cases.

Kelly
Mr Kelly applied as homeless after having been ejected from the family home by his mother. It was common ground at the JR hearing that he was homeless and in priority need by virtue of being under 25 and suffering from mental health problems. When he applied Mr Kelly was given an ‘emergency accommodation form’ to fill in. The interviewer also filed in a ‘Homeless Application Form – Progress Sheet’. Birmingham relied on this as showing s.184 inquiries had begun, but what the ’sheet’ said was:

App suffers with ADHD, has provided a couple of letters which are from ‘05/’06. States what medication he was on, and how severe they thought his condition was. They felt his behaviour was not a result of having a mental illness, and his behaviour was the result of low intelligence. Contacted Learning Difficulties Team. They advised 2066 was last involvement had with him, and confirmed he was on medication at the time. Contacted Dr Kenyon, who confirmed app has no priority need. Discussed circumstances, nothing to suggest he would be vulnerable. Have contacted app and spoke to his mum, and advised he has no priority need. Advised of direct access hostel. Discussed with Colette. TA refused.

Mr Kelly was sent away. Birmingham argued that this constituted s.184 inquiries but that the officer had been in error in not providing written reasons and ‘the substantive decision as to duty owed to the applicant was taken before the enquiry was complete — and in particular before the homeless interview’. So the decision was wrong, nay unlawful, but this amounted to individual error by ‘Mr Clarke’, the officer.

But that wasn’t the only ‘individual error’ in this case.

At the bottom of the Progress Sheet of 11 September, to which I have referred, Mr Clarke confirmed the decision he had made, namely “T.a. [i.e. temporary accommodation] refused”. His decision cannot be categorised as a defective Section 184 decision following an inadequate enquiry. It was a decision not to afford Mr Kelly temporary or interim accommodation under Section 188.

Mr Clarke did not take that decision alone. He did so after discussing it with a colleague, “Collette”. But it does not end there. On 15 September, the solicitor for Mr Kelly (Miss Bi) telephoned the Council and spoke to Caroline Darwin. She, too, was in the Council’s Homeless Team. She was an experienced member of that team. Miss Darwin prepared a further Progress Sheet recording the conversation. That makes clear that the decision that had been made on 11 September was that it was interim accommodation that had been refused. Miss Bi said that the Council were under a duty temporarily to house Mr Kelly pending the completion of their Section 184 enquiries: Miss Darwin did not agree that that was the case. [...] Later that day Miss Darwin sent a fax to Miss Bi, sending “all documents pertaining to Mr Neville Kelly’s Temporary Accommodation request”, reiterating the nature of the decision taken by Mr Clarke.

At hearing, Birmingham also accepted there was an error of law in this decision too, but it was also, yet another ‘individual error’ and nothing to do with a policy.

Unfortunately for Birmingham, this didn’t wash.

I cannot accept the premise upon which those submissions were made, namely that Mr Clarke’s decision was a Section 184 decision that was defective — and unlawful — in the respects identified by Miss Hodgson [for Birmingham]. It was clearly not such a decision.

There is no doubt that Mr Clarke considered and decided Mr Kelly’s application as one for interim accommodation. Unfortunately, he did so without any apparent appreciation of Section 188 or of the obligations which that statutory provision imposes on the Council. He considered whether Mr Kelly had a priority need for accommodation, not whether there was reason to believe that he did so. The latter is a lower test, as Paragraph 6.5 of the Homelessness Code of Guidance reminds authorities. [...] Had he done so, on the basis of Mr Kelly’s application and documents he produced in support, the only proper conclusion to which he could have come is that there was reason to believe that Mr Kelly may be homeless and in priority need of accommodation. That would have triggered the Section 188 duty to provide interim accommodation, until the Section 184 enquiry had run its course and the Council had informed Mr Kelly of the resultant duty to house, if any, that it considered it owed to him

Oh dear, but so far at least, Birmingham still had an outside chance of arguing it was cock-up and a regrettable mistake.

Mehari
There is a long history of refused applications in this matter, but at issue was Mr Mehari’s application when he and his family were street homeless after their landlord had taken the keys back. He was initially told that because he had handed the keys back he wold have to come back the next day (!).

The following day Mr Mehari sought legal advice, and, following a letter, an application was made on the evening of 17 September to the duty judge (Sweeney J). He ordered the Council to provide accommodation until determination of the court application. That accommodation was given by the Council for one night, but then withdrawn, until His Honour Judge Purle QC reissued the order with a penal notice attached.* Mr Mehari has subsequently been offered accommodation by the Council following the completion of Section 184 enquiries.

At the JR hearing, Birmingham accepted there was reason to believe Mr H was homeless when he first approached them and that it erred in law by sending him away. The officer was right in saying that at 6.20 pm they had no cover for dealing with applications but Birmingham accepted this was an unlawful failure of its practice.

However, the ‘Emergency Accommodation Request Form’ completed in this case stated:

Upon completion of the interview, unless the applicant and family are at risk of harm, they should be advised to return to the homeless address whereby a visiting officer will attend the property

This was clearly an instruction and one followed by the interviewing officer.

There is certainly nothing to suggest in the Progress Sheet or Emergency Accommodation Request form that she completed that she had the “reason to believe” criteria of Section 188 in mind, let alone applied them, in coming to her decision

There was other similar evidence in the case of JI, whose case was not pursued, but the evidence was considered because both parties relied on the facts. Odd, because in this case Birmingham purported to discharge the s.188 duty prior to the end of s.184 enquiries and decision.

Held – and I make no apologies for quoting at length:

In regard to Mr Kelly:

Mr Clarke [the initial decision maker] simply did not engage with the Section 188 criteria at all. He was not alone, as two of his colleagues equally failed to do so; and the Council’s response to this claim evinced no sensitivity to, or real comprehension of, the criteria that ought to have been applied, at least until Miss Hodgson’s [counsel for Brimingham] valiant effort to rationalise the decision-making process embarked upon by Mr Clarke ex post facto. I do not accept the basis of the defence, namely that the Council’s procedures in this case operated properly, but Mr Clarke individually failed. There is strong evidence in this case of a system failure.

Overall:

of the many Homelessness and Temporary Accommodation Officers involved with the three cases — by my calculation, eight — none refers to Section 188 or gives any indication that they are applying the Section 188 criteria in considering whether an applicant for housing should be afforded interim accommodation pending the outcome of the section 184 enquiries. The Emergency Accommodation Request Forms neither refer to Section 188 nor the criteria of that statutory provision; and indicate that, once the initial interview is over, the applicant is to be “sent home” (i.e. advised to go home) unless he would be at risk of harm there.

Nor does the other material in evidence aid the Council. The instruction note sent to Homeless Officers on 13 February 2007, after the Aweys judgment, makes no reference to the correct approach to the discharge of the Section 188 obligation. The material from and about St Basils refers to housing options, but not to an applicant’s rights (and the Council’s corresponding obligations) under Section 188. Similarly the Council’s own leaflets, “Housing Options: Do you need help in finding a home?” and “Homeless?” make no reference — unless the reference to “other options” being available refers to interim accommodation being under Section 188.

None of the officers purported to apply the Section 188 criteria. None of the Council’s documents explained that they should do so, nor did their external documents explain or suggest to applicants that those criteria would be applied. The Section 188 duty to afford interim accommodation pending the conclusion of enquiries under Section 184 is part of a comprehensive and coherent statutory scheme: but the Council treated what they called the application for “emergency accommodation” as a discrete and separate exercise, divorced from the substantive housing application. There is certainly some evidence that housing applications are not registered until after the initial approach, and even as late as the housing interview: but I do not have to make findings in that specific regard. I am satisfied that, far from the errors in these cases being of individuals who went outside the Council’s practice and procedures, the relevant officers were following the practice and procedure they were encouraged to follow by the Council themselves.

the claimants are each entitled to a declaration that the Defendant Council acted unlawfully in failing to apply the statutory criteria of Section 188 to the issue of whether they should secure that accommodation was available for the Claimant’s occupation pending a decision as to the duty (if any) owed to him under the provisions of Part 7 of the 1996 Act.

Naughty, naughty, NAUGHTY Birmingham. Not only for gatekeeeping, but for then attempting to blame the individual officers who were, after all, only following the policy and the procedure laid out in Birmingham’s own forms.

The message to Birmingham’s homeless officers appears to be clear. Far far better that you appear to have individually screwed up than our policy faces a challenge. New jobs are easy to come by, after all.

Hopefully the outcome from this case will be used elsewhere, although it shouldn’t need repeating, again – the s.188 duty kicks in on first approach if the ‘low threshold’ of ‘have reason to believe may be homeless’ is met. It is no good sending them away if they aren’t in ‘risk of harm’ by insisting that they return whence they came. Oh and yes, an application is made when the person presents to the LA, not when they have been permitted to fill in the relevant form.

Congratulations to CLP and counsel Mr Nabi, but am I alone in being astonished that a) Birmingham had such an unsophisticated gate-keeping policy and b) they thought they had a chance of success on the individual cock up defence, given the documents?

* I think this is suitable rejoinder to Collins J’s view here that penal notices are unnecessary against local authorities. With respect, Collins J is quite simply wrong.

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Physical violence only

Published
by
NL
on 17/12/2009
in FLW case note, Homeless and Housing law - All
. 5 Comments

Yemshaw v Hounslow LBC (2009) CA (Civ Div) 15/12/2009 [only as Lawtel note so far]

This was an appeal to the Court of Appeal from a s.202 appeal on the issue of what ‘violence’ in s.177(1) Housing Act 1996 meant. S.177(1) provides that it is not reasonable to remain in accommodation where the person has been subject to violence or the threat of violence.

Ms Y claimed that she had to abandon the family home with her children because of her husband’s abusive behaviour. She stated that, although her husband had not physically assaulted her, she had been subjected to emotional, psychological and financial abuse. Housnlow found that this was not sufficient to amount to violence under s.177(1) and that it as therefore reasonable for her to remain. This was upheld on review and appeal, following Danesh v Kensington and Chelsea RLBC [2006] EWCA Civ 1404.

At the Court of Appeal, with the Secretary of State for Communities and Local Government intervening, Ms Y argued that Danesh had been decided in view of the Homelessness Code of Guidance for Local Authorities 2002, which supported the definition of violence as involving physical contact. However, the 2006 guidance widened the scope of violence to include other non-physical forms of abuse. The Secretary of State supported this view. Ms Y argued that the Court had a statutory duty to consider the Guidance and on that basis, Danesh would have been decided differently today. A more flexible approach to the definition of the term by the courts was consistent with a purposive approach to social legislation designed to reflect society’s changing values.

Held:

Danesh was not decided per incuriam.

Y overstated the importance of the codes. While the court was obliged to have regard to them under s.182 Housing Act 1996, they were no more than persuasive authority. Nothing in s.182 or the Act meant that ‘violence’ had the meaning that the Secretary of State may ascribe to it from time to time.

If the Secretary of State wished to introduce new circumstances that would mean it was not reasonable to remain, there was a mechanism in s.177(3) for doing so. As this mechanism existed, the court should be hesitant in accepting that the meaning of a word had changed over time.

Continuing to follow Danesh to define violence as physical abuse would not stultify social attitudes to domestic violence.

A wider definition would in any event lead to practical difficulties for Local Authorities, who would have to make subjective judgments on applicant’s circumstances, which would be inconsistent with the straightforward requirement under s.177(1).

I wonder if we will see the s.177(3) mechanism exercised soon? I’m not going to hold my breath.

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Each had a wooden horse

Published
by
chief
on 29/11/2009
in Community care, FLW case note, Homeless and Housing law - All
. 1 Comment

R (A) v Croydon & R (M) v Lambeth UKSC [2009] 8

This was an appeal heard by the House of Lords over the course of four days in July, but with judgment delivered by the new Supreme Court.  We reported the Court of Appeal’s judgment here.  At issue was to what extent the courts could review the decision of a local authority that an individual is over the age of 18.  On one view this case turns on a narrow point about construction of the Children Act 1989 and does not really need a lengthy examination on a housing law blog.  I’m going to suggest that there is plenty of juicy stuff in here, albeit obiter, that is worthy of consideration.

The normal order of things is of course for young people to claim to be older than they really are.  Scores of cottage industries churning out fake IDs have depended on this pretty much since the dawn of time.  Claiming to be younger than one really is has long been the preserve of Hollywood actresses, supermodels and footballers of a certain nationality (allegedly).

However, there are certain benefits to being found to be under 18.  It opens the door to accommodation under the 1989 Act.  Someone over 18 is not capable of being a “child in need” under s.20(1) and cannot therefore be entitled to accommodation under that section.  There are other legal consequences that flow from this, see for instance the discussion in R (M) v Hammersmith & Fulham [2008] UKHL 14.

Everyday experience tells us that assessing someone’s age accurately is no easy task.  It will be clear that the decision in these cases is an important one to get right.  Quite apart from the resource implications, which are not insignificant, wrongly classifying a child as an adult, or vice versa, can lead to serious consequences for them.  In this regard it is probably better to exercise any element of doubt in favour of assessing someone as younger rather than older.  As an ILPA report has stated “the risks of wrongly treating children as adults are considerably higher than the other way round.  This is because the children’s system has in-built support and supervision to prevent children from being harmed.  No such safeguards exist in the adult system.”  This was endorsed by the Children’s Commissioner for England before the Court of Appeal in this case.

Facts

The facts of these cases can be very briefly stated.  The appellants arrived as unaccompanied asylum seekers.  They claimed to be under 18, but social workers decided that they were over the age of 18, despite there being some medical evidence in both cases to suggest that they were under 18.  In A’s case there was some documentary evidence too, while in the other an immigration judge had accepted that M was 17 years old.

Issues

There were three issues before the House of Lords, identified by Lady Hale at [13]:

  1. is the duty imposed by s.20(1) owed only to a person who appears to the local authority to be a child, so that their decision can only be challenged on Wednesbury principles, or is the duty owed to any person who in fact is a child, so that a court can determine the issue on the balance of probabilities?
  2. is the issue of whether someone is a child is one of precedent fact to be decided by a court on the balance of probabilities?
  3. does s.20(1) give rise to a civil right so that Art 6 of the ECHR is engaged and, if so, is the process whereby social workers assess age coupled with the availability of JR on Wednesbury principles sufficient compliance with Art 6?

Children Act 1989

It may be helpful to set out a few of the relevant provisions of the 1989 Act here.

Section 17(10):

For the purposes of this Part a child shall be taken to be in need if—
(a)   he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority under this Part;
(b)   his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services; or
(c)  he is disabled,
and “family” , in relation to such a child, includes any person who has parental responsibility for the child and any other person with whom he has been living.

For the purposes of this Part a child shall be taken to be in need if—

(a)   he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority under this Part;

(b)   his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services; or

(c)  he is disabled,

and “family” , in relation to such a child, includes any person who has parental responsibility for the child and any other person with whom he has been living.

Section 20(1):

Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of—

(a)  there being no person who has parental responsibility for him;

(b)  his being lost or having been abandoned; or

(c)  the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care.

Section 105(1):

In this Act—

… “child” means, subject to paragraph 16 of Schedule 1, a person under the age of eighteen

Note that paragraph 16 of Schedule 1 does not apply in this case.

‘Child’ or ‘Child in Need’?

So ‘child’ is defined as “a person under the age of eighteen”.  This is the definition used throughout the Act.  As the appellants argued the definition was not:

[14] … “a person who appears to the local authority to be under the age of eighteen” or “a person whom the local authority or any other person making the initial decision reasonably believes to be under the age of eighteen”.  Reaching the conclusion that this is what it means in section 20(1) requires, as the Court of Appeal accepted, words to be read in section 20 which are not there.

The respondent LAs argued (see [20]) that “child in need” was a composite term of art that requires the sorts of professional value judgment that Parliament cannot have intended should be made by the courts.

Lady Hale gave the lead judgment, with which all members of the Court agreed.  In her opinion:

[26] … The 1989 Act draws a clear and sensible distinction between different kinds of question. The question whether a child is “in need” requires a number of different value judgments. What would be a reasonable standard of health or development for this particular child? How likely is he to achieve it? What services might bring that standard up to a reasonable level? What amounts to a significant impairment of health or development? How likely is that? What services might avoid it? Questions like this are sometimes decided by the courts in the course of care or other proceedings under the Act. Courts are quite used to deciding them upon the evidence for the purpose of deciding what order, if any, to make. But where the issue is not, what order should the court make, but what service should the local authority provide, it is entirely reasonable to assume that Parliament intended such evaluative questions to be determined by the public authority, subject to the control of the courts on the ordinary principles of judicial review. Within the limits of fair process and “Wednesbury reasonableness” there are no clear cut right or wrong answers.

[27] But the question whether a person is a “child” is a different kind of question. There is a right or a wrong answer. It may be difficult to determine what that answer is. The decision-makers may have to do their best on the basis of less than perfect or conclusive evidence. But that is true of many questions of fact which regularly come before the courts. That does not prevent them from being questions for the courts rather than for other kinds of decision makers.

[28] …In section 20(1) a clear distinction is drawn between the question whether there is a “child in need within their area” and the question whether it appears to the local authority that the child requires accommodation for one of the listed reasons.  In section 17(10) a clear distinction is drawn between whether the person is a “child” and whether that child is to be “taken to be” in need within the meaning of the Act.

Lord Hope agreed at [51]:

The question is whether the person is, or is not, under the age of eighteen. However difficult it may be to resolve the issue, it admits of only one answer. As it is a question of fact, ultimately this must be a matter for the court.

This leads into whether or not the question is one of jurisdictional or precedent fact.  In the Court of Appeal Ward LJ thought this was not a precedent fact case because he viewed the question as whether a person was a “child in need”.  Lady Hale thought that this was looking at the wrong question:

[32] However, as already explained, the Act does draw a distinction between a “child” and a “child in need” and even does so in terms which suggest that they are two different kinds of question. The word “child” is undoubtedly defined in wholly objective terms (however hard it may be to decide upon the facts of the particular case). With a few limited extensions, it defines the outer boundaries of the jurisdiction of both courts and local authorities under the 1989 Act. This is an Act for and about children. If ever there were a jurisdictional fact, it might be thought, this is it.

Lord Hope again agreed:

[53] … The question whether the child is “in need” is for the social worker to determine. But the question whether the person is or is not a child depends entirely upon the person’s age, which is an objective fact. The scheme of the Act shows that it was not Parliament’s intention to leave this matter to the judgment of the local authority.

Therefore, where there is a dispute, the courts can determine an applicant’s age on the balance of probabilities as part of judicial review proceedings.  JR can be adapted to deal with the determination of questions of fact, see R (Wilkinson) v Broadmoor Special Health Authority [2001] EWCA Civ 1545 (see in the present case Lady Hale at [33] and Lord Hope’s comments on the practical consequences at [54].

Article 6

Although this was enough to deal with the appeal both Lady Hale and Lord Hope went on to consider whether a civil right was being determined and therefore whether Article 6 was engaged.  Although this part of the opinions is strictly obiter, it is still very important and will presumably have an impact in other situations, so all of [35]-[45] and [55]-[65] are worth looking at.  It will become apparent that there was here a slight divergence of opinion on whether Art 6 applied.

Firstly, it will be remembered that in Runa Begum the House of Lords had assumed without deciding that a claim to be provided with accommodation under Part VII of the Housing Act 1996 could give rise to a civil right.  However, there is no Strasbourg case that has gone that far.  The appellants relied on a series of Russian cases (such as Teteriny v Russia and Sypchenko v Russia), which they claimed did establish this proposition.  Both Lady Hale and Lord Hope noted that there did not appear to be any argument on the point in the Russian cases and they did not assist the Court.

Lady Hale concluded at [40] that:

…[I]f a right such as this is a “civil right” at all, it must lie close to the boundary of the concept and not at the core of what it entails. If so, this may have consequences for the second question, which is what article 6 requires.

Lord Hope was prepared to go further.  I won’t break the whole thing down, but after considering the authorities at [55]-[64] he concluded that:

[65] …I think that it can now be asserted with reasonable confidence that the duty of the local authority under section 20(1) of the 1989 Act to provide accommodation for any child in need within their area who appears to them to require accommodation as a result of the factors mentioned in that subsection does not give rise to a “civil right” within the meaning of article 6(1) of the Convention.

Given her conclusion Lady Hale went on to consider what Art 6 required, if it was engaged.  She said that:

[44] I would be most reluctant to accept, unless driven by Strasbourg authority to do so, that article 6 requires the judicialisation of claims to welfare services of this kind. Unlike the arguments based upon statutory construction and jurisdictional fact, Mr Howell’s [counsel for A] argument cannot sensibly distinguish between the determination of age and the determination of the other criteria of entitlement. Every decision about the provision of welfare services has resource implications for the public authority providing the service. Public authorities exist to serve the public. They do so by raising and spending public money. If the officers making the decisions cannot be regarded as impartial, and the problem cannot be cured by the ordinary processes of judicial review based upon the usual criteria of legality, fairness and reasonableness or rationality, then tribunals will have to be set up to determine the merits of claims to children’s services, adult social services, education services and many more. Resources which might be spent on the services themselves will be diverted to the decision-making process. Such a conclusion would be difficult, if not impossible, to reconcile with the decision of this House in Runa Begum. The degree of judicialisation required of an administrative decision, in the view of Lord Hoffmann in Alconbury, depends upon the “nature of the decision”.

[45] If this is a civil right at all, therefore, I would be inclined to hold that it rests at the periphery of such rights and that the present decision-making processes, coupled with judicial review on conventional grounds, are adequate to result in a fair determination within the meaning of article 6.

Lord Walker acknowledged the force of Lord Hope’s reasoning on Article 6, but preferred to leave the point open.  Lords Scott and Neuberger agreed with Lady Hale.

I think that this result must be right, it is the one that gives effect to what must have been the intention behind the Act.  Make no mistake though, this is going to leave the Admin Court with some difficult decisions to deal with.  If you doubt this then look back at the Guidelines for Paediatricians quoted at [5] in the CA’s judgment, or see the difficulties that Collins J identified at [15]-[32] in the connected case (reported by us here).

While at first blush I find the idea that this is not a civil right quite a difficult one to accept, I must admit that the argument is quite compelling.  This does seem to be the correct interpretation of the Strasbourg case law. It will be interesting to see whether this will affect the appeal in Ali v Birmingham which the Supreme Court finished hearing two days before this judgment was handed down.  In the CA Ward LJ had been comforted by the decision in Ali that JR did provide compliance with the standard required by Art 6.  Apparently both Lord Hope and Lady Hale heard the appeal in that case (it’s shown with Tomlinson as the lead case, but Tomlinson dropped out of proceedings at the CA stage).  Of course the present case was heard before judgment in Crompton v UK, but I’m not sure that that case takes the argument any further.

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Child in Need, Indeed

Published
by
chief
on 26/11/2009
in Community care, Homeless and Housing law - All
. 2 Comments

The Supreme Court has handed down judgment in the case of R (A) v Croydon and R (M) v Lambeth [2009] UKSC 8.  This is an important decision about the duty of LAs under s.20(1) of the Children Act 1989 to “provide accommodation for any child in need within their area”.  We will look at this judgment in more detail soon [edit: see here], but for now what you need to know is:

  1. The courts can review whether a person is a “child” for the purposes of the Children Act 1989, this is a separate question to whether they are “in need”;
  2. Ordinary domestic judicial review can be adapted to deal with this where necessary;
  3. If s.20(1) does give rise to a “civil right” for Art 6 purposes it is close to the boundary of that concept (per Baroness Hale); or
  4. The duty of a LA under s.20(1) does not give rise to a “civil right” (per Lord Hope);
  5. If it is a civil right conventional judicial review is enough to comply with Art 6.

The appeal was therefore allowed.  Points 3, 4 and 5 are obiter.

Our report on the Court of Appeal decision is here.

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