Khazai & Ors, R (on the application of) v Birmingham City Council [2010] EWHC 2576 (Admin)

We’ve been waiting for this one. Mutterings about the ‘Birmingham email case’ have been around for a bit. This is a judicial review which is something of a sequel to Kelly & Mehari v Birmingham CC (our report, bailii transcript), and as with that case, deals with apparent gatekeeping by Birmingham City Council.

Back in December 2009, in Kelly & Mehari, the Court had found that there was an apparent unlawful policy by Brum to not deal with s.188 interim accommodation on homeless applications. Birmingham had stated that it would revise policy to address this.

These four Judicial Review claims all concerned attempts to apply as homeless in February 2010 by Messers Khazai, Mirghani, Azizi and Ms Ibrahim. There were 3 elements to the claims, as all four were heard together:

i) that the instructions to Homeless officers in an email from the interim head of housing needs dated 24 February 2010 were unlawful
ii) that this email amounted to the tort of misfeasance in public office
iii) that Birmingham operated a blanket policy on ‘same day’ s.184 decisions that was unlawful

Khazai and the email of 24 February

Mr K applied to Birmingham as homeless. His application was not taken and he was not offered interim accommodation, although homeless and in priority need. Instead he was referred to Midland Heart Housing Association as a ‘funded support service’.

Mr K’s solicitors had come into possession of an email of 24 February 2010 from Mr Hardy, Birmingham’s interim head of housing needs. The email was:

sent to two group addresses, one being the Neighbourhood Office Service Delivery Managers and the other being the Neighbourhood Office Service Delivery Officers. It is said on behalf of the Council that this would have comprised some 40 people in all who would have been expected to “cascade” this instruction to the frontline staff who would deal with applicants coming through the Neighbourhood Office doors.

What the email said was:

Dear All
Please note with immediate effect all single homeless who are presenting as homeless/roofless and Domestic Violence victims requiring refuge must be referred to the appropriate funded support service. We should not be completing a homeless application.
For single person under 25 they should be referred to St Basils ….
For vulnerable singles over 25 they should be referred to Midland Heart ….
Victim of Domestic Violence requiring a place of refuge should be referred to Trident ….
Victims of Domestic Violence who are able to stay at home but require support should be referred to Birmingham & Solihull Women’s Aid
More detailed guidance notes are being produced and will be distributed in advance of the briefing session next week Wednesday, but the above arrangements above already should be in place.
Monitoring of the arrangement is in place and if there are any problems with referring to the agencies, please advice (sic) myself or Saeed Akram.

As a vulnerable single over 25, Mr K had indeed been dealt with in the terms set out in the email – referred to Midland Heart.

We don’t need to spend any time pointing out just how stunningly unlawful the instructions set out in the email actually are, comprising an utter failure to undertake Part VII duties. Indeed, Birmingham admitted as much in their Acknowledgment of Service.

Birmingham’s defence was that the email was in error and that this error had been picked up and corrected pretty much straight away, starting with the two briefing sessions that followed a few days after 24 Feb. Brum stated that at the briefing sessions, Mr Hardy had said the instruction was wrong and that preventing homelessness should run in parallel with a homeless application.

Unfortunately for Brum, when Mr Hardy gave evidence at the hearing, he said

that there was no specific reference to the incorrectness of his e-mail at the briefing on 26 February and, it seems, at the subsequent briefing. All that was said by him at those briefings was that, whatever actions were being taken to try to prevent homelessness by the parallel process to which I have referred (see paragraph 29), it was to be understood by those dealing with applications that “a key element [was that] if someone wishes to complete and present as homeless then we should be taking that application” – in other words, dealing with the application as an application. Mr. Hardy said that was made clear verbally to those people who attended that “we had to take homeless applications” and that the message conveyed was that “under no circumstances should you not be taking homeless applications.

This was, as the Court observed “not a very promising start to the credibility of the Council’s factual case”. And it got worse.

an e-mail was produced during the hearing which was sent by Vicki Pumphrey (who, as Homeless Policy Manager, was No. 2 to Mr Hardy) on the afternoon of 26 February (at 14.32) in which she referred to his e-mail of 24 February and said that “non-compliance” with that e-mail “is being monitored by Saeed and the Team Leaders.”

In fact, Mr Hardy’s first emailed retraction of the email of 24 Feb was not until 17 March, after Mr K had issued his claim for Judicial Review. This said

“For clarification again, under no circumstances should a person be refused the completion of a homeless application or turned away. The purpose of referring homeless people to the Single Points of Access is to offer specialist preventative and housing options. This referral process can be undertaken in parallel with the completion of a homeless declaration.
Every person approaching as homeless on the day requesting interim accommodation will be contacted with a decision that same day.”

But yet another retraction had to be sent by Mr Hardy on 7 July 2010, clarifying further. On the evidence, it was clear that the Council’s case that the email was an error that was rapidly corrected didn’t stand up. The sequence of events did not represent “a satisfactory response to an instruction said to have been recognised early as wrong and unlawful. Quite why it was dealt with in such a way has not been fully explained to me.”

Held: The instruction in the email of 24 Feb was unlawful, and in following it in Mr K’s case, Birmingham had acted unlawfully.

The email and misfeasance in public office

The Claimant argued that the email amounted to a cynical disregard for the Part VII duties because of the financial consequences to Birmingham. On that basis, Mr Hardy’s state of mind at the time of sending the email amounted to “reckless indifference to the illegality of his act” (Three Rivers DC v Bank of England (No 3) [2003] 2 AC 1 ). Southwark LBC v Dennett [2008] HLR 23 on the requirement of subjective intent noted.

The court had a certain difficulty in that Birmingham’s disclosure on the decision making process after Kelly & Mehari had “not been very satisfactory” and the Court did not ” feel that the full audit-trail prior to Mr Hardy’s instruction has been revealed”. Nonetheless, proceeding on the basis that the duty of candour had been discharged, there was nothing to support the conclusion that there had been an ‘institutional’ decision to avoid the Part VII duties.

40. The issue, therefore, is, as I have said, Mr Hardy’s state of mind at the material time. He was, in my view, uncomfortable in the witness box and repeated the mantra that the procedures foreshadowed in his e-mail were intended to run in parallel to the ordinary Part 7 processes. He was unquestionably a longstanding, loyal, employee of the Council who had worked for nearly thirty years in a Department that, at least during the period with which this case is concerned and almost certainly for much longer, faced unique management problems because of the volume of applications made. He said that he chose to work in this area because it was something of importance to him.

41. He said in his evidence that his e-mail was composed without input from anyone else or, as I understood him, as a direct result of the internal processes of review that had taken place following the decision in Kelly, Mehari & Others to which I will refer later. That was modified to some extent when various versions of a policy document were revealed (see paragraph 61 et seq) but, nonetheless, his essential position was that he took the initiative of sending his e-mail without reference to others. I am very surprised that one person should take upon himself responsibility for articulating some fundamental approach to considering applications by those alleging homelessness when the Council, as a body, had been criticised recently in a judgment of this court about its approach to such applications. There are two possible explanations: either Mr Hardy was not being frank about the full involvement of others in the internal processes and that there was indeed an “institutional” decision (involving others in the internal structure) to issue the direction in the e-mail; or he took the essential initiative himself without taking direct advice from others before he did so and without anyone “proof-reading” the e-mail or checking it for accuracy and validity. If it was the former, it would be difficult to understand how the illegality of what was contained in the e-mail could have been overlooked, particularly if legal advice had been taken during the processes. If it was the latter then, despite his long experience in the field, it is at least possible to see how infelicitous drafting could lead to conveying an unintended message.

The court found that whatever was in Mr Hardy’s mind at the time, “it was not of the nature of the bad faith and reckless indifference to the illegality of what he was putting forward necessary to found the tort of misfeasance in a public office”. The email was more likely to have been the product of oversight and ill-considered drafting than a brazen instruction to ignore statutory provisions.

The ‘same day’ policy

The cases of Mirghani and Azizi both involved former asylum seekers granted leave to remain and therefore facing the discharge of NASS accommodation and support. They both applied to Birmingham as homeless.

Mr M, after being told repeatedly to ‘come back the next day’ (for two weeks) had his application taken on 4 March 2010. What purported to be a s.184 decision letter was written the same day, but sent to his previous address, finding him homeless, eligible but not in priority need. (The present court found, given the background and present health problems “it is difficult to see on what basis he could not be said to be both homeless and in priority need”.).

Interim accommodation was refused until the threat of judicial review proceedings, but then Birmingham sent notice to quit on the basis of discharge of duty, based on the letter sent to the previous address. Mr M was evicted. He went to his solicitors, who then found out from Birmingham about the s.184 letter sent to the previous address on the date of Mr M’s application.

His solicitors that day requested interim accommodation pending a review of the priority need decision (under section 188(3)) and identified the defects in the Homeless Officer’s decision. By letter communicated to his solicitors shortly before 6 p.m. that day, the Council accepted that there appeared to be a “deficiency or irregularity” in the decision but refused to provide interim accommodation pending the review. One reason given was that because he had applied for State benefits and housing assistance he had demonstrated an ability “to access services and [had] managed to do this whilst having no settled accommodation of his own.”

On 26 March the present proceedings were instituted and Mr Mirghani was then granted interim accommodation pending the review. The decision following the review was set out in a letter dated 22 June when the Council notified Mr Mirghani that it accepted that he was in priority need and was owed the full housing duty.

While Mr M’s individual issue was therefore resolved, the claim proceeded, with Mr A’s, on the basis of ‘wider interest’ – the ‘one day policy’.

Mr A was also granted leave to remain and faced the end of his NASS accommodation.

57. Six days before his NASS accommodation ceased to be available to him, on 2 February, he presented himself as homeless to the Council, but was told to return the day he was to be evicted. He sought advice from Shelter and in the early evening of Friday 5 February Shelter sent by fax to the Council a written homelessness application on his behalf with supporting letters from his GP and the multi-disciplinary pain clinic as evidence of his back condition. Shelter requested that interim accommodation be provided whilst enquiries under section 184 were carried out.

58. On Monday 8 February a representative of Shelter spoke to Ms Deborah Mosley who said that Mr Azizi was not in priority need and, accordingly, the Council could not assist him. That evening Simon J made a without notice order requiring the Council to provide suitable accommodation for Mr Azizi for the nights of 8-9, 9-10 and 10-11 February, giving the Council liberty to apply to set aside or vary the order on 12 hours’ notice. A little later a letter setting out the reasons for Ms Moseley’s decision was faxed to Mr Azizi’s solicitors. I need not set it out in detail, but it is plain that her conclusion was that he was not “in priority need” and accordingly no duty to provide interim accommodation arose. She concluded that he was entitled to go on the Housing register as an applicant.

Mr A had since found private sector accommodation

Following a Freedom of Information request, the Claimants’ solicitors had obtained some policy and procedure documents drawn up following Kelly & Mehari. Version 3 of one of those documents stated, in part:

The Homeless Team will respond to NAIS within 60 minutes of receipt of the application confirming receipt and the name and contact telephone number of the officer managing the application. The Homeless Officer will, where possible, indicate to the NAIS officer the length of time they believe it will take to make a decision on the application.
The Homeless Team will aim to make decisions on all applications before 17:15 Monday – Thursday and 16:15 Friday, however, where this is not possible and the customer is remaining at the Neighbourhood Office they will inform NAIS to allow for the continued management and support of the customer until a decision has been made. The following test under S188 (1) Housing Act 1996 will be applied.
If the local housing authority have reason to believe that an applicant may be homeless, eligible for assistance and have a priority need, they shall secure that accommodation is available for his occupation pending a decision as to the duty (if any) owed to him under the following provisions of the Part.
…
Following the interim duty decision, the duty officer will telephone the customer to notify of the S188 decision and: If interim accommodation is agreed, the approved request will be forwarded via the homeless database to Temporary Accommodation team who will arrange the provision of emergency accommodation. If interim accommodation is refused, the decision will be communicated directly to the customer verbally. A copy of the S184 decision letter will be saved to the database for NAIS to access, the original letter will be sent direct to the customer by 1st class post

The Claimants argued that the process in the document – making decisions before times specified, communicating interim accommodation decisions and saving a copy of the s.184 letter to the database – amounted to a general ‘same day’ approach to decisions. After all, an adverse decision on interim accommodation almost inevitably means an adverse s.184 decision.

However, the Court found that while aspects of the document would certainly support such a reading, taking it as a whole, the reading was was less certain. Birmingham argued that the document referred to ‘homeless on the day’ applications only, the proper s.188 test was set out, and, if followed conscientiously, the low threshold of a.188 decision meant that there was nothing wrong in reaching a s.184 decision at the same time if the threshold was not met. These submissions were accepted.

There was no blanket one day policy on the evidence. However, the decisions on interim accommodation in both Mr M and Mr A’s cases were unlawful, even if the question was now academic.

However, the Court also noted that “I do think that there is scope for improving the drafting of this document” and further that “I have no doubt that, if it has not occurred since March this year, a thorough review of the procedures adopted should be undertaken with the benefit of high level legal advice. Whilst I do not underestimate the practical difficulties faced by the Council in fulfilling its statutory duties, the nature of those statutory duties is now well-established and ought to be capable of being applied without the significant mistakes made in the cases before me.”

On the same basis, the Council’s argument that these were wholly academic cases that should not have been heard was dispatched:

my principal concern about granting a declaration that each of the refusals to grant interim accommodation was unlawful is (a) that it might encourage other claims to be pursued beyond a stage which, in the ordinary course of events, is legitimate and proportionate and (b) that it might discourage applications for a review of an adverse decision through the ordinary statutory processes. The other side of that particular coin, which I see as unique to the present proceedings, is that there has been a significant history of criticisms of the Council in operating Part 7 in the past and a decision of this court only a couple of months or so prior to the material decisions in the present cases which roundly condemned the systemic failure then perceived to be affecting the decision-making processes. A declaration from the court can reinforce the message that the house needs to be put in order and is justified on the basis that it fosters good administration. It is for that reason that I have, on balance, been persuaded to make appropriate declarations in the three cases other than Ibrahim. I do wish to make it absolutely plain, however, that this should not be seen as any encouragement to pursue each and every case in which the Council falls short of its statutory obligations under Part 7 to a full hearing once the failure has been rectified; far from it.

[That sounds like something of a warning to Birmingham – NL]

Ibrahim

Ms I’s claim, which was a renewed oral permission hearing after rejection on the papers, had been advanced by the Claimants as evidencing a common theme of the Council’s attempts to avoid Part VII obligations wherever possible.

There had been a delay in taking Ms I’s application and a further delay in deciding on interim accommodation, which not provided until interim relief in the JR had been obtained. The full housing duty had subsequently been accepted.

There was no common theme with the other cases. No relief was required or possible. Permission refused.

Declarations of unlawfulness made in respect of the email of 24 Feb in Mr K’s case and the decisions of not being in priority need in respect of Mr M and Mr A.

The claim in respect of misfeasance in public office dismissed.

Costs of half (Mr K) and two thirds (Mr M and Mr A) to the claimant. No order as to costs on Ms I.

I don’t think any comment is particularly necessary. I presume that Birmingham will begin sending policy and procedure communications on self-destructing tapes.