Thanks to Housed and Garden Court’s bulletin for the pointer to this Ombudsman’s report [pdf] on Cardiff’s failure to provide temporary accommodation pending enquiries on what was a prima facie case of ‘not reasonable to remain’ homelessness.

Cardiff were operating a ‘housing options’ filtering scheme and refused to accept Mr F as homeless until he had notice of eviction.

I don’t want to go through the details – which will surely sound very familiar to most housing advisors. Instead, I wanted to look at the case in terms of tactics for advisors and the utility of various routes.

In this case, the Ombudsman awarded compensation of £1500. It is not clear when the complaint to the Ombudsman was made. However, Mr F’s first approach to the Homeless unit was in March 2006. He was not put into temporary accommodation until about August 2006, after a possession order was made, and this was apparently after the Ombudsman had begun investigations. The Ombudsman’s report is dated 16 April 2008. So, although the report is completely devastating in regards to Cardiff’s then practices, it was of little avail to Mr F at the time to complain to the Ombudsman, as he was still not taken into temporary accommodation until after a possession order, despite the investigation. The report then took at least 18 months to appear.

Mr F did have the help of a solicitor during the period March – August 2006. The solicitor apparently repeatedly called and wrote to the HPU during this period, pointing out the conditions Mr F and his family were living under, the intentions of the landlord and also supplying evidence of medical concern about the impact on the health of the infant son.

In that sense, the solicitor provided all the information that Cardiff could reasonably have required to actually make a decision, let alone find that a s.183 HA 1996 duty was triggered. But Cardiff didn’t respond. A passage from a solicitor’s letter from May 2006 (two months in) is quoted in the report:

Mr [F] is living in accommodation which is currently being extensively renovated by his landlord. We have spoken with the landlord and in the landlord’s opinion the premises are not fit for habitation, and as you will appreciate Mr [F] is extremely limited in the accommodation which he can obtain bearing in mind his limited resources.

Whilst we appreciate that the landlord has given him Notice to Quit, it does appear that the premises may be unreasonable for him to occupy at the present time and we would be grateful if you would kindly look into considering his homelessness application on that basis.

Cardiff simply ignored this and the other letters and calls. Although they had no justification for ignoring them, (and tried to blame an individual officer), I’m not surprised at the lack of response.

I have no idea if the solicitor was a housing specialist – they are said to be the ‘family solicitor’ – and I don’t want to be particularly harsh, not knowing the circumstances of their instruction. But I do think there is a general tactical lesson to found here.

In my view, when your client’s circumstances are such that there is a clear prima facie housing duty under s.183, pending enquiries, one needs to give the recalcitrant local authority all the reasons why the duty has been triggered, and the history of the client’s presenting to the LA.

But one doesn’t ask the LA to look into it, one insists that they respond, via a Judicial Review pre-action protocol letter before claim. And one insists that the LA respond pretty much immediately, with a deadline beyond which an application for Judicial Review with interim injunction application will be made with no further notice. Copy the letter to the LA Legal Services. Then, if there is no reaction in time, make the JR application. (Assuming there is time, I’d usually want to get Counsel’s advice and drafted grounds pre-issue, of course).

Sadly, asking the LA to kindly look into it will often at best get a delaying response, at worst achieve nothing at all.

I have no doubt that I might be regarded as unduly aggressive in advocating these tactics. But, as the Cardiff Ombudsman’s report makes clear, one is properly insisting that the LA comply with their legal duty, not asking a favour or trying to persuade them to do the right thing. It is worth looking at the response of the then operational manager of Cardiff’s homeless services to see why the ‘giving the LA the information and asking nicely’ approach might well be of little utility. In interview with the Ombudsman, the manager:

was unable to give my investigator the current definition of homelessness saying that it had been a long time since he had looked at the legislation. When asked to expand on the statements in the formal response as to the overriding priority being given to homelessness prevention, the Operational Manager moved away from this position saying that he had not wished to convey an impression that considerations about homelessness prevention would over-ride the assessment process as a matter of course but went on to say that local authorities in Wales have a performance indicator to reduce homelessness applications, this being a consideration in future grant awards and it is appropriate that the options of advice and prevention should be a first response.(33)

So he didn’t know the law and was pre-occupied entirely with reducing homeless applications. Given Councils’ policies (and Government pressure), it is not surprising that these should be the concerns of homeless units. (That this is about policy driven practice, rather than any individuals working in HPUs, should be clear).

The merit of the aggressive (but still polite, of course) approach is that it bumps matters up to Legal Services immediately, who are, at the least, going to have to deal with the more obvious legal deficiencies in their client’s dealings. If this doesn’t get results straightaway, carrying through the threat with an application for JR with injunction application focuses minds wonderfully.

The benefit of the approach is the likelihood is that the client’s application will be accepted and they will receive temporary accommodation quickly. It is therefore hugely in the client’s best interests.

However, there is a caveat. Should the LA choose to fight the JR, rather than act to remove the grounds (effectively settling the case), it will take months to years to get a substantive hearing at the Administrative Court. There is no one simple answer to what happens to the client in the meantime – it entirely depends on the ongoing situation.

There will also be people, I have no doubt, who will object that making applications like this is why the Admin Court is bunged up and that this is a needless waste of the Admin Court’s time. I entirely agree. It shouldn’t be necessary to have to threaten and make applications in this way, only for the LA to back down in the light of its indefensible position.

I should also be clear that I am no fan of making an application as a threat, regardless of the details of the client’s case. But where the client has a viable case, their interest is paramount, and if the LA’s inaction means an application, so be it.

As a post-script, I’d like to mention that I will put up a related post shortly about issues of independence and the ability to take an aggressive approach to local authority decisions (or lack of them) in this way, provoked by some posts on Housed’s blog.