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03/02/2010

Advice and assistance

R(Savage) v LB Hillingdon [2009] EWHC Admin 88 [not on Bailii yet, available on Lawtel].

Ms S applied to Hillingdon Council as homeless following a possession order on her private rented accommodation on grounds of rent areas. Hillingdon provided temporary accommodation then found she was homeless, eligible and in priority need, but intentionally homeless (it didn’t help that Hillingdon housing advice had previously told her to set up a direct debit for her rent). Ms S did not ask for a review and it was accepted that she was intentionally homeless.

Hillingdon’s s.184 letter quite rightly stated that Hillingdon had a duty to offer her ‘advice and assistance’ to find her own accommodation. Ms S contacted their housing options team. She was then told that she was not eligible for the finders fee scheme (in which the council provides the deposit/rent in advance on a private tenancy up to £1500) because she was intentionally homeless.

Ms S, via solicitors, first sought a late review – which was refused – then, once evicted from temporary accommodation and once social services had said that they would take her son but not accommodate her, and on a further refusal to provide fee finders assistance, she applied for JR of the refusal to consider her for the fee finders scheme. Interim relief included accommodation, continued on permission.

The Claimant argued that
i) the Council did not carry out any proper assessment of C’s housing needs in accordance with s.190(4) Housing Act 1996
ii) The Council failed to provide any or proper advice and assistance to C pursuant to s.190)2)(b) HA 1996
iii) The Council adopted a rigid approach or fettered its discretion with regard to the advice and assistance provided, including in regard to the fee finders scheme.
iv) the Council had failed to secure accommodation ‘for a reasonable period’, pursuant to s.190(2)(a) HA 1996.

Hillingdon’s argument was
i) the issues raised could have been raised on s.202 HA 1996 review, so JR was not appropriate
ii) excessive delay
iii) none of the Claimant’s argument were the case.

Held:
although there was no formal written assessment of housing needs, there didn’t have to be. Hillingdon has carried out the required assessment, even though it mostly pre-dated the s.184 decision. It was ‘wholly unrealistic’ to expect a wholly fresh assessment.

Advice and assistance did not have tone such as will ensure that suitable accommodation is available, s.192(2) HA 1996. S.206(1)(c) deals with the provision of accommodation under s.193 and does not qualify s.192. Advice and assistance may indeed not lead to accommodation. There may be litle advice and assistance that can be offered, but that little was offered here.

The Art. 8 argument advanced did not assist the claimant. Even when social services offered to take her son but not accommodate her, the claimant retained a choice – to remain homeless and keep the family together (!).

The Council, as shown by the s.184 letter, was well aware of the Claimant’s personal circumstances. It could not be said that they had not been taken into account.

On fettering of discretion, however, the fee finders scheme option was not considered flexibly. There was evidence that the Council had simply refused to consider her for the scheme due to the finding of intentional homelessness and advised her so. The initial decision was not reconsidered and the case was not discussed with a team leader, as set out in the Council’s policy, in the light of the Claimant’s circumstances. While the policy was not rigid in stating that the intentionally homeless would not usually be eligible for the scheme, the policy was applied as if it were rigid. In this respect the provision of advice and assistance under s.190(2)(b) was unlawful.

On the reasonable length of time to be provided for the claimant to find alternative accommodation, Conville v Richmond Upon Thames [2006] 1 WLR 2808 provides that it is for the Council to decide what is a reasonable opportunity. It is not a duty to provide long term accommodation and the efforts of the applicant to find accommodation are relevant. There was no evidence that the Council had applied a fixed period here, in view of the information it had about the Claimant. In fact the stated 28 days given had been far exceeded. The Claimant had had something like 8 months by the time she was evicted.

On the s.202 review issue, s.202(1)(b), raised by the Council, appears to relate to the existence or not of duties under s.184 and not with the discharge of those duties – in that case s.202(1)(f) would be otiose.

Further Conville had proceeded by Judicial review without any suggestion that s.202/s.204 was the appropriate route. However R (Ahmed) v Waltham Forest LBC [2001] EWHC Admin 540 appeared to find the opposite.

It was not necessary to decide in this case as the Council had accepted it would be helpful to have guidance on these statutory provisions and grant of permission had not been opposed for that reason. Further it was not clear that s.202(1)(b) would permit the determination of such issue on review and county court appeal.

Delay in bringing the claim did not pertain to the issue of advice and assistance – it was an on-going duty.

Overall, the Council’s failure to comply with its own policy on the fee finder scheme was unlawful and capable of remedy.

Hillingdon have amended the fee finders scheme policy in the interim. How is not stated.

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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