A judicial review in which two local authorities fought over which of them was gong to have to owe a housing duty to a homeless applicant. The central issue was whether, in the circumstances, Ealing could refuse a referral under the local connection provisions by RBK&C. However, the finding on ‘same facts’ second homeless applications has much broader application and should be taken note of by everyone.
Ms Hacene-Blidi is a disabled, wheelchair user with 4 dependent children. She has lived in a private sector tenancy in Ealing since 2012. In 2015 she applied to Ealing as homeless after the landlord began possession proceedings in order to let at a higher rent, and Ealing accepted a full housing duty under s.193 Housing Act 1996.
Ealing offered a property, but Ms H-B refused it. Ealing discharged duty. A review was requested but withdrawn.
Ms H-B was then evicted from her private tenancy. She applied as homeless to RKBC. RKBC found that the main housing duty was owed, and also that the conditions of a referral to Ealing under s.198 Housing Act 1996 were met.
Ealing refused the referral, stating
this authority is satisfied that the conditions of referral are met as the family have a local connection with us on grounds of residence. However, this Council is satisfied that we do not owe Ms Hacene-Blidi any duty under the terms of the above legislation… We discharged our housing duty on 24/11/15 as Ms Hacene-Blidi refused a suitable offer of accommodation… In coming to this decision we have had regards to case law of R v Hammersmith and Fulham LBC ex p O’Brian. In light of this it is down to your authority to refer the family to social services department for any further assistance they may be entitled to.
RKBC brought a judicial review of that decision on the basis that “by reason of the acceptance of the conditions of referral being met, Ealing’s main housing duty was engaged, and that this was a second duty”.
Ealing maintained that the second application was on the same facts as the first. RKBC argued that there were new facts.
Both authorities rely upon Rikha Begum v LB of Tower Hamlets (2005) EWCA Civ 340. Kensington & Chelsea contend that prior to the fresh application for housing assistance to Kensington & Chelsea, Ms Hacene-Blidi had been evicted and was therefore entitled to make a fresh application for housing assistance pursuant to section 193(9). Ealing contend that the initial decision to accept that they owed Ms Hacene-Blidi a main housing duty was on the basis that she was to be evicted, it now being the general policy of housing authorities not to wait until there is an actual eviction before finding that the applicant has not made herself intentionally homeless and all that has happened in this case is that the landlord had followed through with the eviction of Ms Hacene-Blidi. Ealing contend that the housing duty has been satisfied and that no new duty has arisen and that the authority is entitled to rely upon that earlier discharge of duty in circumstances where the authority would have refused the application if it had been made to that authority.
But the key question was the applicability of R v Hammersmith & Fulham LBC, ex p. O’Brian (1985) 17 HLR 471, which had broadly similar facts (and no new circumstances before the second application) and had resulted in a finding that the ‘receiving’ council could refuse the referral on the basis of it’s previoous discharge of duty.
The High Court held:
O’Brian was no longer good law. Not only was it concerned with the Housing (Homeless Persons) Act 1977, rather than the provisions of the Housing Act 1996, the determination of the House of Lords in R v LB of Harrow ex p. Fahia (1998) 1 WLR 1396 on the duty to make fresh enquiries on a second application unless “there has been no relevant change in circumstances at all.” This removed the requirement relied on in O’Brian for a fresh incidence of homelessness. This was followed in Rikha Begum v LB of Tower Hamlets (2005) EWCA Civ 340.
This was not an ‘exactly the same facts’ case:
This is not a case where it can be said that the second application is on exactly the same facts as the first application. In the second application, Ms Hacene-Blidi had been made homeless. In the first application Ealing was acting on the basis that the landlord had taken possession proceedings against Ms Hacene-Blidi. This is not the same as her having been evicted. As Singh J. said in R (o.a.o. May) v Birmingham City Council (2012) EWHC 1399 “there is all the difference in the world … between a person knowing that at some point in the future they may have to leave accommodation and a person being told that they will not have somewhere to sleep that night.” The scenario of an applicant who is facing the potential of eviction sometime in the future, possession proceedings having been instituted, is not the same scenario as actually having been evicted and being homeless. If the application had been made directly to Ealing then the authority would have been in the same position it is in with the local connection referral having been made by Kensington & Chelsea.
Therefore, Ealing could not lawfully refuse the referral and the housing duty.
Decision quashed. Costs to RKBC.
For councils, clarity on this issue will be of some use. For homeless applicants, the decision on whether this amounted to a ‘same facts’ application is useful and of broader application.
That said, I suspect there may be an appeal…