Costs and inquiries – homelessness appeals

The London Borough of Croydon v Lopes [2017] EWHC 33 (QB)

Costs on settled s.204 Housing Act 1996 appeals – the issue that never goes away. The latest instalment also brings with it some rather sharp findings by the Court of Appeal on the extent of inquiries the council should have made.

Ms Lopes had applied to Croydon as homeless. She had moved to the UK from Portugal in 2012, found employment and was living in temporary addresses with her partner and children when she applied to Croydon in 2013. Prior to moving to the UK she and her partner and children had been living at her mother’s home in Portugal.

Croydon found her eligible, but not homeless, as she had accommodation available to her in the shape of her mother’s home in Portugal. Croydon’s notes of two interviews with Ms L (through interpreters) recorded that she had said

“she left as there was no work in Portugal” and “she was not asked to leave and when her friend suggest to come to the UK to look for work she did”. The file note records that Ms Lopes’ partner and her children remained living with her mother-in-law until July 2013 and after she found employment in the UK and they were able to join her.

The second interview notes recorded that Ms L:

“confirmed that her partner[‘s] mother had not asked her to leave”, that there were disagreements after her brother-in-law moved in, that her mother-in-law said they needed to find a solution:

“so when her friend suggested that she come to the UK to look for work she came here and her partner and children remained at home with her mother and she found work they came to reside with her in the UK”.

The file notes record that the suggestion was that Ms Lopes find a solution, not the brother-in-law as he was younger and that, in response to a specific question, Ms Lopes said that “she wasn’t asked to leave, but was told they needed to find a solution so she left and came to the UK”

Croydon upheld their decision on review. In her review request, Ms L had said:

that she had said that her mother had not given her an eviction letter as that was not the custom in Portugal but that she did ask Ms Lopes to leave the house and the fact that her children and her partner had continued to live there did not mean that her mother-in-law would allow the family to go back and live there. She said that coming to the United Kingdom was the result of not having a place to stay and she came to the UK to find a place where she could stay together with her family. Ms Lopes also completed a form requesting a review and stated that she did not have anywhere to stay in Portugal, and that at her mother-in-law’s house her brother-in-law used to smack her children when no one was around and that she did not wish to put her children’s life at risk.

Croydon’s review decision stated:

“you stated that although your partner’s mother would not confirm that you were homeless, this is because it is not the custom in Portugal but that despite the fact that your partner and children had returned to the property you were not able to do so. I am not satisfied that that is true, I am satisfied that your family bond is sufficiently strong to enable you to return to the property.”

Ms L brought a s.204 appeal on 4 June 2014. A witness statement in support was served on 26 June 2014, which exhibited a letter dated 19 May 2014 (6 days after the review decision), in Portuguese, from Ms L’s mother stating clearly that she would not and could not accommodate Ms L and her household.

On receiving this, there was correspondence which resulted in a consent order by which, “on the Council agreeing to withdraw its decision of 13 May 2014 and issue a fresh decision under section 202 of the Act, Ms Lopes would withdraw her appeal and the question of costs would be determined by a judge following written submissions from the parties”. Written submissions were duly filed.

HHJ Bailey’s order of 30 March 2015 was that Croydon should pay 85% of Ms L’s costs.

The rationale for this was given as (in part):

Suffice it to say that the Appellant was able to mount a strong case that the Respondent should not have proceeded on the evidence before it and that it should have conducted proper and further enquiries before arriving at the settled conclusion. There was no effective case argued for a variation of the review officer’s decision, with the court substituting it own decision in favour of the Appellant.

(…)

In reality, this was a ‘failure to make proper enquiries’ appeal. There was never any prospect that the court would take it upon itself to vary the decision of the review officer but difficult for the Respondent to maintain that it had discharged its obligations to make enquiries. As I see the position there must be an Order for costs in favour of the Appellant. The issue is whether there should be a discount to reflect the fact that she sought to achieve more than she could reasonably expect to achieve in her appeal in seeking an order to vary, and fell back on the standard relief in such appeals, that of quashing the decision and a further review.

Croydon appealed (initially to the court of appeal where it was redirected to the High Court in Handley v Lake Solicitors, and others [2016] 1 WLR 3138 )

The High Court held:

On whether the Judge had made the correct costs decision,

The obligation under section 184 of the Act is an obligation on the Council to make such inquiries as are necessary to satisfy themselves whether a duty is owed. That includes, on the facts of this case, making such inquiries as are necessary to enable them to decide if Ms Lopes was homeless or threatened with homelessness. The correct approach to that duty is set by the Court of Appeal in decisions such as R v Royal Borough of Kensington and Chelsea ex p. Bayani (1990) 22 HLR 406, and Cramp v Hastings Borough Council [2005] H.L.R. 48. It is, in the first instance, for the decision-maker to determine what inquiries are necessary to enable it to be satisfied of the relevant matters under the Act and its decision is subject to challenge on traditional public law grounds.

The Judge had made his decision on the basis that this was a ‘failure to make proper enquiries’ appeal, but he had failed to identify the relevant test, statutory provisions or authorities.

Furthermore, the decision appears to have been predicated upon the basis that either the original decision-maker or the review officer of the Council could, and should, have contacted the mother-in law to obtain further information. However, there was no basis upon which the judge could legitimately conclude, on the facts of this case, that the Council had erred in law in not making such inquiries. The Council had conducted two interviews with Ms Lopes herself, with a person present who could interpret for her. The Council had expressly asked Ms Lopes about the nature of the accommodation she and her family occupied in Portugal, why she had left, and whether or not her mother-in-law had asked her to leave. The Council was entitled to reach its conclusion on the information provided by Ms Lopes that she was not homeless or threatened with homelessness as she had accommodation available to her and her family which it was reasonable for her to continue to occupy. The officer who took the original decision did not act unlawfully in not making further inquiries of the mother-in-law but relying on the information provided by Ms Lopes herself. Similarly, the review officer was entitled to rely upon the information provided by Ms Lopes, and the fact that her partner and her children had continued to remain with her mother-in-law whilst Ms Lopes looked for employment in the United Kingdom.

On that basis, the Judge’s decision on costs was wrongly arrived at.

The appropriate costs order:

      1. The relief obtained by Ms L on the settlement to dispose of the appeal was largely the relief she sought, but,
      2. the reason for Croydon agreeing was that the fresh evidence of the mother’s letter showing that the property in Portugal was not available to Ms L, at least at that date and after. This would be sufficient to enable Ms L to make a fresh homeless application in any event, so continuing to oppose the current appeal had no practical point.
      3. The council would have been successful in resisting the appeal,

        On the material before the review officer, that officer was entitled to conclude that (1) there was accommodation available to Ms Lopes in Portugal (2) that Ms Lopes had a licence to occupy it (3) that it was reasonable for her to occupy it notwithstanding the alleged the issue of her brother-in-law’s conduct towards her children (4) that Ms Lopes had left the accommodation of her own volition and would be able to return and (5) it was not unreasonable for her and her family to occupy the property by virtue of the overcrowded nature of that property. The information provided at two interviews by Ms Lopes was to the effect that she and her family had lived in the property, together with her mother-in-law and her brother-in-law and his family. Although there were tensions between some of them, Ms Lopes was not asked to leave. She went to the United Kingdom to look for employment. Her partner and her children remained living in the flat and joined her when she had found employment. The conclusions reached by the review officer that Ms Lopes was not homeless, or threatened with homelessness, so that no duty was owed to her under the Act was one that the review officer was entitled to reach. Further, for the reasons given above, the Council did make sufficient inquiries in relation to the relevant matters under the Act.

      4. The appropriate order was therefore that Ms L pay the council’s costs in the appeal, subject to any protection to which she is entitled by reason of the fact that she is publicly funded

Comment

Ouch. And while I suppose there is a certain issue of principle here around the extent of inquiries, I wonder how much the second appeal cost Croydon relative to what the inter partes costs of the first appeal originally were? As Ms L appears to have been protected by legal aid, that has to be a practical consideration.

About Giles Peaker

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, and still is Nearly Legal on Google +.
Posted in Homeless, Housing law - All and tagged , .

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