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.