R(Anon) v LB Southwark (Claim No CO/2035/2014 – settled by consent)

Courtesy of Hansen Palomares Solicitors comes news of this settled Judicial Review of LB Southwark’s gatekeeping practices on homeless applications. It appears, to put it mildly, that Southwark have had a range of what should have been obviously unlawful policies on homeless applications, and even put them into leaflets and their website.

The Claimant (Mr C) is a refugee from Iran. He was granted leave to remain in July 2013, and was joined by his wife and two children. They stayed with friends until 30 January 2014. Mr C approached Southwark as homeless but was simply sent away. He tried again a few days later with a letter from his GP. On this occasion, the family was provided with temporary accommodation of a single room for all 4 of them, for two weeks, because, as Southwark told them, they were expected to find their own private sector accommodation.

After Mr C instructed solicitors, Southwark did accept a homeless application, but Hansen Palomares pursued a judicial review of Southwark’s conduct nonetheless, issuing in May 2014. Mr C was still in unsuitable accommodation and his homeless application was dated over a month after Mr C had approached Southwark.

Southwark’s defence was, in effect, that the policies and practices addressed in the Claim (on which more below) existed but Mr C had suffered no prejudice thereby.

Remarkably, despite Mr C’s immediate issues having been resolved, at an oral hearing in August 2014 the Admin Court decided that it was in the public interest for the claim to proceed.

Why, you might ask, given that the claim had arguably become academic? The Claim and the witness evidence in support set out substantial and documentary evidence of Southwark’s approach to dealing with homeless applications which went far further than the specifics of Mr C’s treatment, and which clearly the Court considered merited a hearing.

The issues raised were:

a). Treating homeless applicants as ‘housing options clients’ for a period (14 days in the case of Mr C) before they would be seen by a homeless caseworker, while telling the applicant to find private sector accommodation. The homeless application would be dated from the interview with the caseworker, not earlier.

b). Southwark’s website set out its ‘Housing Options Service’. On the main page for Housing Options, there was no mention of homeless assistance at all. A link to ‘How can we help you’ lead to a further page giving a number of examples of advice – homeless assistance was sixth in the list. A link on ‘homeless’ lead to a page stating:

“While we will try to help everybody who approaches us as homeless, we can’t provide everyone with temporary or emergency accommodation. If you have nowhere else to go the night you are made homeless, the council may to provide accommodation if you can prove that:

• You are homeless through no fault of your own

• You have lived in Southwark for the last six months or have another strong connection to the borough

• You are entitled to benefits in the UK

• You have children under 18 or you are vulnerable in some way”

Note the ‘lived in borough for 6 months’

c). A number of examples of homeless applicants being sent away without an application being taken because they did not have ‘required documentation’ (Passport, birth certificate, tenancy agreement).

d). Examples of homeless applicants being made to sign up to a ‘housing options action plan’ and no application being taken.

e). Homeless applicants being required to complete an ‘online wizard’ to ‘explore housing options’ No mention of a homeless application was made in the ‘wizard’, nor in the ‘action plan’ it generated.

f). A leaflet given to all homeless applicants called “Housing Options Service” and on the other side “Your Housing Options Guidance – guidance notes”. The leaflet states that an appointment with a ‘filtering officer’ is required before an appointment with a ‘housing options officer’. There is no mention of homeless assistance. The leaflet states that the following documents are required for a housing options assessment (not yet a homeless interview) to be carried out: “proof of identity, proof of homelessness, proof of residence in Southwark, proof of homelessness and proof of income/benefits”. For people without dependant children, 12 months proof of residency was required.

g). Southwark’s form for internal use by housing options officers. This stated:

“Housing option scheme. The Finders Fee Scheme is now available to both single person household and families. If the applicant is not homeless tonight and is unlikely to be homeless within the next 5 days and is eligible for assistance you should advise them of the details of the Finders Fee Scheme at this stage. You should give the applicant a leaflet and they should be advised to go away and find their own accommodation in the private rented sector. There is no need to complete this form any further. […] If you have not advised the applicant about the Finders Fee Scheme or feel that there is something about this household’s circumstances that make them unsuitable for this Scheme, please give your reasons why.”

It should not need to be said that all of these amount to unlawful gatekeeping, individually and collectively. And the documents and website materials were absolutely clear. These could not be explained away as the actions of one officer who had misunderstood matters, or an accidental mis-statement in guidance.

The requirements of s.184 and s.188 have been explored by the Courts often enough. Section 184 states

(1)If the local housing authority have reason to believe that an applicant may be homeless or threatened with homelessness, they shall make such inquiries as are necessary to satisfy themselves—
(a)whether he is eligible for assistance, and
(b)if so, whether any duty, and if so what duty, is owed to him under the following provisions of this Part.

This obligation to make inquiries arises as soon as the LHA has ‘reason to believe’ that the applicant may be homeless or threatened with homelessness. That is from the point that the applicant first presents to them. The point that the application is made cannot be delayed by sending the applicant away to complete an ‘action plan’ or telling them to ‘go away’ with a fee finders leaflet, or providing very short term accommodation under ‘housing options’ before a homeless application is taken.

While the LHA may well require documents as a part of its inquiries, they cannot be a pre-condition for taking the application.

Section 188 states

(1) 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 this Part.

This duty to secure accommodation arises once the low threshold of of ‘having reason to believe’ has been passed. It cannot be delayed until effective completion of s.184 inquiries, or by demanding proof of homelessness, eligibility and priority need.

And of course, there is no possible lawful ‘residence requirement’ of 6 months or a year in the borough. Potential local connection to another borough is a matter that is to be considered in the course of s.184 inquiries.

In view of all of this, it is perhaps surprising, even astonishing, that Southwark continued to defend the claim after the August 2014 hearing. But eventually, it appears, someone involved with the case did figure out that they were likely to lose and lose badly. The consent order settling the claim is here (courtesy of Hansen Palomares) and makes remarkable reading.

Southwark agree to withdraw all the leaflets and policies mentioned above, including the residence requirement, (and also to stop requiring homeless applicants to be unemployed before they were assisted), to include reference to homeless applications in the ‘wizard’, issue new leaflets, retrain housing options staff and, well, comply with the law in terms of taking homeless applications and providing temporary accommodation.

Oh and pay 85% of the Claimant’s costs.

This is remarkable work by Lara ten Caten of Hansen Palomares, and counsel Jamie Burton of Doughty Street. These are exceedingly difficult claims to bring, as individual claimants get their issues resolved and the case risks becoming academic. That internal ‘fee finder’ guidance has been known about in the area for some time, but no cases had got this far that I know of. Putting together a broad, substantiated and solid range of evidence of gatekeeping practices and policy, sufficient to get over the ‘broader public interest’ hurdle is a great achievement.

But, as the housing pressures get worse and worse in London, Councils do continue to adopt gatekeeping practices, in an attempt to minimise the number of people they must accommodate (regardless of the actual duty owed). Southwark were not the first and most certainly won’t be the last.