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.