Can a refuge be a ‘residence of own choice’ for the purposes of Local Authority decisions about local connection in homeless applications? This is a rare Court of Appeal decision on the issue. In addition, can a Reg 8(2) ‘minded to’ letter requirement be triggered by events during the review and after a first ‘minded to’ letter has been sent?

London Borough of Wandsworth v NJ [2013] EWCA Civ 1373

NJ applied as homeless to Wandsworth. She had been the victim of domestic violence in Leicester and came to London to seek refuge. With the assistance of a charity, she was found a refuge place in Lambeth, the first available. There she and her daughter received counselling and support. After 6 months it was decided she was ready to move to mainstream accommodation and she applied to Wandsworth, to make ‘a fresh start’, because she had friends in the area and because she intended her daughter to go to school there. She also reported her ex-partner, who was charged with a very serious assault.

Wandsworth’s s.184 decision was that NJ was homeless, eligible and in priority need, but because she had a local connection to Lambeth, the criteria for a referral to Lambeth under s.198 Housing Act 1996 were met, and Wandsworth referred NJ’s application to Lambeth.  NJ requested a review of that decision under s.202.

Wandsworth sent a ‘minded to’ letter, saying the review officer was minded to find against NJ on

i) the reasons why the Respondent wanted to be housed in Wandsworth, namely friends and her attendance at church there;

ii) the question as to whether the Respondent’s residence in Lambeth was her normal residence of choice.

Shortly afterwards, NJ moved to a refuge in Southwark, following the visit from a friend from Leicester and information suggested her ex-partner was trying to locate her.

NJ’s solicitors responded to the ‘minded to’ letter, arguing the failure to accommodate NJ was unlawful and stating:

“1. Local Connection is a discretionary requirement and the authority should not apply it in these circumstances;
2. Our client does in any event have a local connection to Wandsworth;
3. Our client does not have a local connection to Lambeth because a refuge cannot be a ‘residence of choice’, and she formed no real connection with the area; and
4. Even if our client did have a local connection to Lambeth, she should not be referred there because she is at risk of violence in the borough. If the Authority had made inquiries before making the referral, they would have discovered that our client was at risk in the area and would not have made the referral.”

The review officer upheld the s,184 decision, stating she had considered:

i) all the information available to date;
ii) the issues relating to residence of choice;
iii) the issues relating to risk of violence in the Lambeth area;
iv) the facts relating to special circumstances; and
v) the facts relating to the Respondent’s daughter’s place at a school in Wandsworth.

Lambeth wrote to NJ to say they accepted the referral and the duty to accommodate.

NJ appealed the review decision. At the s.204 appeal, the Court found:

i) […] that the SRO had misdirected herself as to the test to be applied when deciding whether or not the Respondent’s residence in Lambeth was of her own choice. He held that the SRO should have asked herself the question “did you choose to live in Lambeth” as opposed to the question which she did ask, namely “did you choose to reside in the refuge”; had the SRO asked the first question, it would have produced the answer “No”; see paragraph 14 of the judgment.

ii) Second, having referred to Al Ameri v Kensington and Chelsea RLBC [2004] 2 AC 159, the judge concluded that, on the facts, the Appellant had not chosen to live in Lambeth. At paragraph 15 he said:

“Had A presented herself to any local authority that could be said to have been a matter of choice but she did not. What she sought and was provided with was a refuge by a charity that has a number of refuges. They placed her where they had a space and that happened to be in Lambeth. I agree with the submission that the Senior Reviews Officer asked herself the wrong question living in Lambeth and in doing so made an error of law. On the facts of this [case] A did not choose to live in Lambeth she was placed there and the fact that other choices may have been available does not mean in my judgment that it was a matter of choice”.
iii) Third, the judge concluded that the initial decision (i.e. the section 184 decision) had been defective and that, accordingly, it was unreasonable for the SRO not to have invoked the Regulation 8(2) procedure so as to afford the Respondent a further opportunity to make representations. He dealt with the issue at paragraph 24 of his judgment in the following terms:

“24. In this case the issue of domestic violence was stated in the 184 decision although not explored or expanded upon and it is clear that the Reviewer took account of further representations and made some enquiries. It is of interest to compare and contrast what is said in the 184 decision and the review decision. In the 184 decision (pages 15-16) there is an acceptance of the fact that there had been historic domestic violence without more whereas the review decision deals with the possibility of a continuing risk over the best part of 2 pages – from the middle of page 42 to the top third of page 44. Does that amount to a “deficiency”? In all the circumstances of the case I consider it does. There have been significant developments. A has been seen by other people who know her ex-partner and has been moved out of Lambeth to another refuge in the adjoining borough of Southwark. The threat of violence to A is at the heart of this case and this appeal. A has been denied the opportunity of commenting on the reasons why the risk of future violence has been discounted. This is a case where it can be said that it was in the Wednesbury sense unreasonable not to have invoked the Regulation 8(2) procedure. This may be a case where the reviewer thought that further representations would have made no difference but that is not the test.”

The Court i) allowed the Respondent’s appeal; ii) quashed the review decision; iii) ordered the Appellant to ensure that accommodation was available for occupation by the Respondent and her daughter pursuant to section 193 of the 1996 Act.

Wandsworth appealed on two issues:

i) First, was it open to the Appellant on the information before it to conclude that the Respondent’s residence in Lambeth was “residence … of [her] own choice”?

ii) Second, when reaching its decision had the Appellant complied with Regulation 8(2) of the Regulations?

The Court of Appeal rehearsed the now familiar precedents on the approach to be taken when considering a s.202 review decision, up to and including Holmes-Moorhouse v Richmond-upon-Thames BC [2009] UKHL 7 on ‘the benevolent approach’ to be taken in interpreting the review decision.

On the issues raised by Wandsworth:

i) NJ argued that the question posed by “section 199(1)(a) was whether residence in a particular district was the individual’s own choice”. Following Al Ameri v Kensington and Chelsea RLBC [2004] 2 AC 159, “Where the choice was made by someone else it did not become the applicant’s choice merely because s/he “was content to reside there, or … went there voluntarily” or because s/he could “stay where he was when the offer was made””.

iii) Therefore where the fact that someone resided in a particular district was because of some other choice, for example a choice between being homeless and having accommodation, or someone else’s choice, the statutory test was not met.

iv) Insofar as it could be said that the Respondent made a “choice” at all, it was limited to the decision to flee domestic violence and to enter the refuge system. However, that choice did not concern the one choice to which section 199(1) was directed – namely the choice to live in the district of the LBC or indeed any other district. That decision was made by the refuge system and was no more the Respondent’s choice by her having acquiesced in it. There was no way therefore in which it could be said that the Respondent’s residence in Lambeth was “of her own choice”. The failure to acknowledge this was the fundamental flaw in the SRO’s decision.

The Court of Appeal was not convinced. Noting that Al Ameri concerned NASS accommodation and that the House of Lords had found that NASS accommodation could never be the applicant’s own choice, the Court decided that there was no immediate relation between Al Ameri and the present case.

In contrast, in the present case, the SRO was, in my judgment, entitled to conclude on the material before her that the Respondent had voluntarily chosen to come to London (as opposed to any other part of the country) and had voluntarily chosen to seek assistance from the particular charity which housed her. Whilst it was true that, apparently, the only refuge place available in London was in Lambeth, nonetheless the Respondent had voluntarily chosen to accept the refuge’s offer and to reside in Lambeth. As the SRO pointed out, when the Respondent arrived in London in June 2011 she had the right, as a homeless person, to apply to any local authority for accommodation. Indeed she could have chosen to live in any other area of the country apart from London. Instead she chose, for understandable reasons, to reside in the women’s refuge place offered to her in Lambeth. Whilst she might have preferred to live in another district, and whilst she might have considered that, given her need for support, she had, from a practical point of view, a very limited range of options given her wish to live in London, other than to accept the Lambeth placement, nonetheless in my view the SRO was, as a matter of law, entitled to conclude that the Respondent’s residence in Lambeth was of her own choice. On any basis, it was one made by her voluntarily.

In addition:

I do not consider that the SRO asked herself the “wrong question”. Whilst she did ask herself the two questions: “a) do you normally reside in the refuge in Lambeth? b) Did you choose to reside in the refuge?”, adopting a “realistic and practical approach” to the relevant passages in her letter dated 26 July 2012, it is clear that she fully appreciated that the refuge was in Lambeth and that the relevant question was whether the Respondent had chosen to reside in Lambeth. To construe her letter as not addressing the question as to whether the Respondent had chosen to live in Lambeth is to adopt the technical and nit-picking approach condemned by Lord Neuberger in Holmes-Moorhouse v Richmond (supra). As Mummery LJ emphasised in El Goure v RBKC, [2012] EWCA Civ. 70 at 44, if the relevant passages are read in the context of the decision as a whole, it is manifestly clear that the SRO was addressing her mind to the right question.

The first issue went therefore against NJ.

On the second issue, whether the Council had complied with its obligations under Regulation 8(2) in reaching its decision, the Court of Appeal was less satisfied.

NJ’s case was that

the initial decision was defective because (necessarily) it did not address the subsequent events relating to the Respondent’s concerns about the possibility of her ex-partner trying to find out where she and their daughter lived, the potential risk of violence in the Lambeth area, and the Respondent’s consequential transfer to a different refuge located in the London Borough of Southwark. Accordingly Mr Westgate submitted that it was incumbent upon the SRO, before making her final decision, to write a further letter to the Respondent, notifying her that the SRO was nonetheless minded to affirm the initial decision and her reasons for so doing, and giving the Respondent, or someone on her behalf, an opportunity to make further submissions orally or in writing, or both orally and in writing.

The Court of Appeal agreed.

In my judgment, and despite Mr Lintott’s submissions that the identification of a “deficiency” was a factual matter for the SRO’s decision alone, there was indeed a material deficiency in the initial section 184 decision; and the judge was right so to conclude. That was because the Appellant’s initial decision in its letter of 7 March 2012 that “we are satisfied that you would not be at risk of domestic violence in the [Lambeth] area”, necessarily did not, and could not, take into account the subsequent evidence relating to the Respondent’s new concerns about her ex-partner tracking her down at the Lambeth refuge, and her consequent move to the Southwark refuge.

It is clear from the court’s decision in Banks v Kingston-upon-Thames RLBC [2008] EWCA Civ 1443 that a purposive interpretation has to be given to Regulation 8(2) and that an original decision may subsequently be rendered “deficient” in the light of intervening events which occur between the date of the original decision and that of the review decision; see e.g. per Lawrence Collins LJ at 70-72.

In the present case there was, in my view, no, or no adequate, consideration by the SRO as to whether the initial decision was deficient on these grounds. That was perhaps not surprising since it was only after the SRO’s original “minded to find” letter dated 30 March 2012 that the SRO was informed, in the further written representations made by the Respondent’s solicitors dated 11 July 2012, of the Respondent’s fears that her ex-partner was seeking to locate her and her subsequent move to the Southwark refuge in the light of those concerns. The nearest that the SRO came to considering whether there had been a deficiency in the initial decision on these grounds was her statement at page 5 of the review decision that:

“it is impossible to accept your representatives submissions that this council failed to make enquiries whether you were at risk of violence in Lambeth, when you never made such a claim”.
She did however in her section 202 review decision extensively and carefully consider the further written representations made in relation to the issue of “risk of violence in the Lambeth area”. She concluded that there was no such risk.

So, although a ‘minded to’ letter had already been sent, and the representations on the risk of violence in Lambeth post-dated that letter, the requirement for a ‘minded to’ letter under regulation 8(2) was triggered again, because unless she did so, the applicant was denied the opportunity to comment on the reviewing officers reasons for discounting the future risk of violence.

Lambeth LBC v Johnston [2008] EWCA Civ 690 and R(Mitu) v Camden [2011] EWCA Civ 1429 made clear that such a procedural obligation arises. The failure of the initial review to address subsequent concerns about the risk of violence in Lambeth “was a deficiency or irregularity of “sufficient importance to the fairness of the procedure to justify [the] extra procedural safeguard” required by Regulation 8(2)”.

Appeal allowed to the extent of removing the requirement on Wandsworth to secure accommodation. The matter remitted for the further s.202 review decision.

Comment

The finding on Reg 8(2) has to be right, simply on the basis that a review can and should take into account subsequent events and changes in circumstances.

The very broad view of ‘choice’ taken by the Court of Appeal in this case would seem to mean that ‘placement’ by any agency, charity or indeed Council could be read as ‘residing by choice’ if there was a conceivable alternative that the applicant might have pursued.

As an aside, in view of the allocation policies adopted by some London councils that exclude from eligibility people have have not lived in the borough for a period of year ‘by choice’, it may actually be that this expansive view of ‘choice’ turns out to be of use in challenging eligibility decisions.