28/05/2008

Interim Accommodation and Judicial Review

Lusamba, R (on the application of) v London Borough of Islington [2008] EWHC 1149 (Admin) concerned a judicial review application on failure to decide on provision of interim accommodation pending review of a negative s.184 HA 1996 decision. It raises interesting procedural issues and a few issues on dependency of family members for priority need.

The application for judicial review on grounds of failure to make a timely decision on interim accommodation was made on 10 April 2008, after a review request on 4 April 2008.  On 15 April 2008 at oral hearing, which islington missed as they had not been notified by the court, permission was granted and temporary accommodation ordered. On 28 April, Islington made a decision and refused interim accommodation. Islington applied on 1 May to discharge the interim injunction. The interim relief sought had been temporary accommodation pending not just decision but until the s.205 review decision, which this Court notes extends considerably beyond the final relief sought.

This hearing was of Islington’s application, which was also made on the basis that permission had been granted before the time for an acknowledgment of service had expired, with no abriding order, and that Islington had not had notice of the hearing.

The Court found that as the decision on interim accommodation had now been made, the proceedings as issued must fail. The application for interim accommodation pending review could not now be based on the allegation that the required decision had not been made. In fact interim accommodation could only have been ordered on the basis that it was until the decision on interim accommodation was made.

The Court’s options were either to treat the hearing as the full hearing or dismiss the application and discharge the application. But this did not take into account what was effectively a further application, via the Claimant’s response to the Defendant’s application to discharge. Not a formal application but one in substance, that the decision of 28 April not to provide interim accommodation was unlawful, meriting interim accommodation until review decision as relief. The Court then considered this de facto application on its merits on the basis that both parties had in any case consiered their positions on the decision letter.

The original homeless application was made on the basis that the applicant had a dependent, her 18 year old sister, both French nationals. The sister was a full time student and the applicant was apparently receiving child benefit and child tax credit for her on that basis. The Council’s refusal for interim accommodation emphasised that, although an 18 year old in full time education can be a dependent, the guidance suggests that the relationship should be akin to a parent and child relationship. In addition, the sister had been in the UK for a year or so before being in education and before receiving any support from her sister.

The Court found that the applicant had not provided any new material after the s.184 decision and one would expect detailed material on dependency to be provided. There was nothing to include the present case iside what the guidance envisaged as dependency. The Court had real difficulty in seeing how the s.202 review would be succesful, but for its purposes, there wasnothing to suggest that the decision letter refusing interim accommodation was anything other than a proper response or contained an error in law.

On that basis, there was no point in formally amending proceedings. This was to be treated as the full hearing of the judicial review application and it was dismissed and injunction discharged.

There is an illustration here of the importance, but also the difficulty when in a hurry, of getting application, grounds, final relief and interim relief all lined up properly when making an urgent application. But also an illustration of the convolutions that the problems the Admin Court is facing can sometimes result in, when one effectively turns out to be applying for something else altogether, simply through time and events.

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

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