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Accommodation pending review: Mohammed in action


R (Gebremarium) v City of Westminster [2009] EWHC 2254 (Admin)

Thanks to the Garden Court housing bulletin for pointing to this one. We had to look around as the judgment is not yet available anywhere except casetrack.

This was the permission hearing of an application for judicial review of a decision by Westminster not to exercise its discretion to accommodate Ms Gebremarium pending a review of its decision to refer Ms G to Cardiff under the local connection provisions.

Ms G is Eritrean. She had been accommodated in Cardiff by NASS following an asylum application. After her asylum application was successful, NASS ended accommodation and she subsequently lived in two private tenancies in Cardiff between October 2007 and May 2009. In May 2009, Ms G’s four daughters, aged 4 -16, were granted visas and joined her. Ms G and family came to Westminster within a week and applied as homeless. She had only a one bed flat in Cardiff and said that she wanted her children not to be isolated – they had come for church and community. Westminster accommodated pending decision. On the s.184, Westminster found Ms G homeless, eligible, in priority need and non-intentionally homeless. However she had no local connection with Westminster, but did have a local connection to Cardiff. Westminster referred to Cardiff who accepted a duty. Westinster sent a s.198 letter notifying Ms G.

Ms G requested a review of the decision and requested that Westminster exercise its discretion to accommodate pending review under s.200(5) Housing Act 1996, which is directly comparable with s.188(3) Housing Act 1996, the discretion to accommodate pending s.202 review of a s.184 decision.

Ms G submitted that she did not want to return to Cardiff because she felt lonely and isolated there, had suffered from depression, and all her family and friends lived in London. Moreover, her children were Christian Orthodox and could only attend the Eritrean Orthodox church in Southwark. They would not be able to attend church in Cardiff. The children were registered to start school in Westminster in September.

Westminster responded on 7 August. The letter used the decision in R (Mohammed) v Camden LBC [1997] 30 HLR 315 for its structure, Mohammed being the case that set the principles for the exercise of this discretion. Westminster said they were satisfied that Ms G had establshed a residence connection in Cardiff, by choice. There were Pentecostal churches in Cardiff attended by Eritreans. Any disruption to schooling would be brief and Ms G would not be isolated as she had her daughters with her now. Under a heading of ‘new information, material and argument’, Westminster said they were aware of none. Under ‘personal circumstances’, Westminster said it had considered personal circumstances. Ms G was not homeless, technically, as Cardiff had accepted duty. Westminster declined to exercise its discretion to provide interim accommodation.

After a pre-action letter on 7 August, Ms G sent a further letter on 10 August, making further representations on receipt of the housing file. Westminster had failed to make enquiries about church or community connections amounting to special circumstances. No enquires had been made about any reason for Ms G’s unhappiness in Cardiff. Further, the Council had failed to understand that Orthodox worshippers could not attend Pentecostal churches. Ms G then issued the JR.

At the initial consideration, Dobbs J adjourned for a week, ordering that Westminster serve a decision regarding the children’s place of worship in a couple of days. Westminster wrote to Ms G on 13 August, saying that special circumstances had been considered before the referral to Cardiff, but that isolation was not a special circumstance given the period Ms G had lived in Cardiff of her own accord. On the children’s church, Westminster has established that the children could attend any Orthodox church and that there was a Greek Orthodox church in Cardiff attended by people from 20 countries. In addition, a church in Southwark did not establish local connection to Westminster.

Ms G responded that a church conducting services in Tigrinya, the childrens’ native tongue, was needed.

At the hearing, Ms G argued that:
1. The Council had not addressed its mind to the discretion it had under s.200(5). it had failed to address its mind to the existence of a discretion not to refer to Cardiff. There had been a lack of serious enquiries before the referral, as the letter of 10 August showed. The Council could well have concluded there were far superior support networks in its area.
2. The letter of 10 August raised significant new arguments and the Council’s earlier contentions on church attendance were clearly wrong. The services in the Southwark church were in the children’s language, while there were no Eritrean Orthodox churches in Cardiff. The Council failed to consider that the children would not pick up sufficient english during the review period.
3. The Council’s decision was flawed. it placed an undue emphasis on the presence of a Greek Orthodox church in Cardiff.
4. On personal circumstances, Ms G would be street homeless if not provided with interim accommodation. The Council had misdirected itself in law by saying Cardiff had accepted a duty so that she was technically not homeless. This ignored the s.200(5) discretion, which could be exercised where the notified authority had accepted a duty.

Held by Cranston J:
The Council had considered the Mohammed factors and its letter set out the findings in relation to each of the three factors. That was enough to dispose of the application, by binding precedent. The Court will only intervene in an exceptional case, R v Brighton and Hove Council, ex parte Nacion [1991] 31 HLR 1095 (Lord Woolf).

The only special circumstances advanced related to the church in Southwark. The Council had uncovered an alternative in Cardiff and considered the language point, which would lessen over time. But in any event the need to attend a church in Southwark could not give a local connection to Westminster.

The issue of what weight to give a factor was for the Council. It could not be said that it had given ‘too much’ weight to accommodation being available for Ms G in Cardiff.

There were no exceptional circumstances in this case, such as a need to obtain medical treatment only available in the area. This is the type of exceptional factor which would have resulted in finding the Council’s decision flawed. This decision was not flawed in public law terms, permission refused.

Now, I have a certain sympathy with the view that in deciding whether to accommodate pending review of a referral decision, the fact that the notified authority will accept a duty should perhaps not play too great a part, for basic reasons of circularity/pre-judging the review – after all if one had to actually be facing street homelessness, no s.200(5) discretion decision would ever be successful. But it is hard to see that this was actually a major factor here, where it looks like the comparison was more generally issues arising from accommodation in Westminster v accommodation in Cardiff.

That aside, this decision does show the high hurdle of challenging the exercise of discretion where the authority has at least considered the Mohammed criterea.

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.


  1. simply wondered

    from the notes, it looks a rather well-considered mohammed letter from westminster. being cynical, i would have to say that fortunately for some of my clients, they don’t always do as well as that! promote that overworked officer.

    • NL

      Apart from a rather glib response to the church issue originally, which was recovered post issue, I think I would have to agree. From the judgment, at least, it looked thorough. Anyone trying to argue with the weighting of factors in a generally considered letter is, unless the decision is plainly wednesbury unreasonable or overlooks the ‘exceptional’, on a very difficult course.

    • Arif Islam

      I don’t overwork. I manage my time very well.

      • NL

        That’s nice, but the review officer was a Mr Patel.

  2. simply wondered

    the church issue is interesting. are we saying that access to a particular religious grouping (and even one that works in a particular language) is a factor the LA must consider. it could be that a jedi family insist they be housed next to their own jedi church in knightsbridge as services take place every 4 minutes. and what if they are found to believe that with a genuine religious conviction?
    that’s an over silly example but to return to earth, what if they say that yes they are eritrean orthodox but, critically, southern eritrean orthodox and the cardiff church is northern eritrean orthodox. does the la have to consider that? or southern eritrean othodox but the minister is not acceptable to the family? (so ad infinitum) is any aspect of religious observance something a LA could or should take into consideration? and knowing the reluctance of jr to go near religious matters, how can judgment be reached on any such questions?

  3. Francis Davey

    I agree that religion is always a difficult question, but in this case the Oriental Orthodox Churches have been separate from the Eastern Orthodox Churches since the council of Chalcedon. Confusing the two is about as ignorant as thinking that Washington (state) and Washington DC must be in roughly the same place.

    So, not very impressive.

  4. Stephen O'Neill

    It is not entirely clear from the judgement but it seems that Mr Patel telephoned Ms Gebremarium to ‘inform’ her that he was minded to refer the case to Cardiff and asked for her ‘view on whether she wished to make further representations’. That was on 17 June 09. The housing notes indicate that Mr Patel notified Cardiff on 16 July 09 that he would be making a referral and the decision letter was dated 17 July 09.

    I say it is not entirely clear because it seems to me that the notification was not a decision letter at all, but was a ‘minded to notify’ letter issued under s.184(4) of the HA 1996. The right to request a review arose under s.202(1)(e). It was not under s.202(d) – whether the conditions for referral were met because the applicant had not been notified of Westminster’s decision intention to notify Cardiff under s.198 because it was not in writing. Mr Patel telephoned Ms Gebremarium in June and asked for any submissions, but she was not notified in writing nor was she given the right to request a review (as that must also be in writing (s.184(5)).

    So it seems to me that either Westminster have skipped a step or they have only concluded the review in respect of their ‘minded to refer’ decision and not the second right to request a review of the decision that the conditions for referral are met…unless I have missed something.

    On a moot point, if a review under s.198(5) must be carried out jointly by the notifying and notified authority (The Allocation of Housing and Homelessness (Review Procedures) Regulations 1999) is it arguable that the notified authority should also be included in the decision on whether to provide accommodation penidng review?

  5. simply wondered

    sure, confusing 2 branches of a church unhelpful – yes. but my point is more about to what degree of detail must authorities enquire and even is religion a factor at all?

    • M

      Simply – I suppose one answer would be to say there’s no straightforward answer. The skilful advocate will put as many supporting facts that might separately or together constitute special circumstances, argue why they are such in that particular case, and then look to hold the LA to account for any failure to make adequate enquiries, take a particular fact or issue into account etc.

      But perhaps that’s a lazy answer. I think your question is an interesting one. To what extent must LAs enquire into an applicant’s choice of religion, consider and give weight to the manner in which s/he chooses to practice, and is it when all is said and done really a factor?

      I don’t think we can say that it won’t be a factor that requires consideration. I have a lot of sympathy for the significant number of former asylum seekers, including those from Eritrea who, upon having NASS accommodation terminated, suffer very real social isolation, a genuine need for support and contact with those of their own culture, and some of whom understandably have a genuine wish to attend a particular church where they can worship with and be in contact with such persons.

      Personally however I doubt the extent to which a wish to worship in a particular church / denomination can – generally – genuinely be equated with an unassailable local connection with a district (i.e. one that can’t be defeated by a determined LA officer), constitutes an absolute need to remain in a particular district, or a special circumstance, when considered in the context of the purpose of the Part 7 scheme as a whole. I don’t recall any case in the higher courts that lends any real weight to such arguments.

      Having said all that the wishes of an applicant such as Ms G are wholly understandable, and it won’t stop such arguments being advanced. And I know of at least one LA that tends to be so lax at administering cases where they initially deem the applicant to have no local connection that if your client sticks around long enough they’re likely to rack up 6 months normal residence without even receiving the second s.200(2) notification, and/or before they’re required to vacate temporary accommodation. Even where this isn’t the case, in the face of a determined client, the LA is usually only delaying the inevitable.

  6. simply wondered

    i imagine that isn’t in west london – they can be a bit lax, but as they are swamped with people saying they have a absolute need to be with a community here (and in many cases quite realistically given the ethnic diversity of say north kensington – yes it isn’t just leaders of the opposition who live here) those boroughs – i suppose understandably given the pressures on housing – are keen to move them on and out.

    more substantively: as your comment recognises, there is some difference between being in an established community and having access to a church that fits your religious requirements. can’t imagine an argument like that having any weight in france…

    • M

      No, not West London.

      And lol yes I think such arguments would probably get very short shrift in France.

      But perhaps to an extent they have here as well, providing the council’s decision withstands scrutiny in public law terms. I’ve noticed references to somewhat unhelpful cases in Arden and Luba – R v White Horse DC ex p Smith and Hay (1984) 17 HLR 160, QBD, and R v Westminster CC ex p Benniche (1997) 29 HLR 230, CA. (I don’t have access to those reports, so I can’t pretend to have read them though).


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