10/11/2013

I don’t want to go to… Lambeth

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.

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.

7 Comments

  1. Lee Georgiou

    I though that Mohamed v Hammersmith and Fulham [2001] set out quite clearly what is likely to constitute “normal residence of his/her own choice”, as per Lord Slynn

    “It is clear that words like ordinary residence and normal residence may take their precise meaning from the context of the legislation in which they appear but it seems to me that the prima facie meaning of normal residence is a place where at the relevant time the person in fact resides. That therefore is the question to be asked and it is not appropriate to consider whether in a general or abstract sense such a place would be considered an ordinary or normal residence. So long as that place where he eats and sleeps is voluntarily accepted by him, the reason why he is there rather than somewhere else does not prevent that place from being his normal residence. He may not like it, he may prefer some other place, but that place is for the relevant time the place where he normally resides. If a person, having no other accommodation, takes his few belongings and moves into a barn for a period to work on a farm that is where during that period he is normally resident, however much he might prefer some more permanent or better accommodation. In a sense it is “shelter” but it is also where he resides. Where he is given interim accommodation by a local housing authority even more clearly is that the place where for the time being he is normally resident. The fact that it is provided subject to statutory duty does not, contrary to the appellant authority’s argument, prevent it from being such.”

    These decisions are at odds with Al-Ameri v Kensington and Chelsea which was obviously made on policy grounds.

    Reply
    • Giles Peaker

      Lee

      Mohamed is on a different issue – whether interim accommodation could count as ‘normal residence. This case was on the issue of ‘his/her own choice’, which Mohamed doesn’t touch on.

      There is nothing in Mohamed which is at odds with Al-Ameri or with this case that I can see.

      Reply
  2. Lee Georgiou

    Giles,

    Does a homeless applicant have a “choice” where they are provided with interim accommodation? In relation to “choice” they are pretty much in the same position as someone who is offered a refuge placement.

    The key is that it is “voluntarily accepted by him”…. or as in this case her.

    Reply
    • Giles Peaker

      No, Mohamed concerned whether a family had a local connection to the borough in which they had applied as homeless. Hence the issue of whether the temporary accommodation could be considered as ‘normal residence’. I’d say that there is a clear element of choice in that the applicants chose that Borough to apply as homeless, but choice was simply not discussed in Mohamed.

      The issue of choice in temporary accommodation might come up if, say, a borough chose to argue that a family it had placed in out of borough accommodation (without a choice) now had a local connection to that area. But of course there are agreements to prevent exactly that.

      So choice of area should never be an issue when it is temporary accommodation.

      The NASS case concerned people who had no choice. There was no other possible option except NASS accommodation and no choice of where that was.

      Reply
  3. TSHO

    the situations are not the same though are they?

    With interim accommodation, the choice is between that accommodation or no accommodation/being homeless.

    With the refuge, that isnt the case. The applicant had options of applying as homeless to a council of their choice, but chose to proceed with this refuge placement.

    I appreciate there are similarities, but to say they are pretty much the same is incorrect.

    Reply
  4. Arfan

    This is a welcome case; I have had a number of DV’s come in recently and this point has only come up on one which they backed down on after JR threat on the grounds of lack on reasonable / necessary enquires been conducted by the Authority before making a referral.

    Over zealous Housing Officers are quick to refer out when they can though.

    Reply
  5. TSHO

    Homeless officers (poor ones anyway) will often look to local connection first, and advise applicants to go elsewhere in an attempt to prevent an application.
    Whilst I agree with the decision in this case, I can see it being used and quoted to prevent applicants accessing the assistance they require by those authorities that preach lawful procedures, but who practice gate keeping regularly.

    Reply

Leave a Reply (We can't offer advice on individual issues)

This site uses Akismet to reduce spam. Learn how your comment data is processed.