R (oao Sambotin) v London Borough of Brent (2017) EWHC 1190 (Admin)
Once a local authority has made a homeless decision under section 184 Housing Act 1996, can it change its mind? That was the issue in this judicial review.
Mr S had applied to Brent as homeless. By a letter of 30 January 2017, Brent had accepted that he was eligible, homeless, not intentionally homeless, and in priority need. Brent also decided he had a local connection to Waltham Forest and made a referral under s.198. Waltham Forest refused the referral on the basis that Mr S was not eligible for homeless assistance. Brent then wrote to Mr S saying that they had now found that he was not eligible and saying he had a right to request a review. Mr S did so, which is underway. Mr S also brought judicial review proceedings on the basis that Brent had no power to re-open the s.184 decision.
Brent argued that Mr S had an alternative remedy via a s.202 review, relying on R v Brent LBC ex parte Sadiq (2001) 33 HLR 47. The court held that Sadiq also set out that there was a “residual discretion to entertain a claim for judicial review notwithstanding the existence of alternative remedies”. This claim involved a discrete point of law and the judicial review was the best and most effective way of dealing with it.
Brent’s argument was
that the Defendant had no power to make the decision set out in the letter of 10 February 2017 if the Defendant had completed its enquiries under section 184 of the Act and made “final decisions” under section 193 prior to making its decision on 30 January 2017 except in very limited circumstances to which I will return. She submits, however, that the Defendant had not made all the relevant “final decisions” necessary under section 193 by that date. It had not reached a final conclusion about the duty owed to the Claimant under section 193 because it had referred the Claimant’s application for accommodation to Waltham Forest. She submits that this analysis is supported by the decision of the Court of Appeal in Crawley BC v B (2000) 32 HLR 636.
This did not get Brent very far, as on the evidence of the 30 January 2017 decision letter, the court found that Brent had indeed reached a final decision.
The terms of the letter of 30 January 2017 from the Defendant to the Claimant could not be clearer. The letter records, in terms, that the Defendant had satisfied itself that the Claimant was homeless, that he was eligible for assistance, that he had a priority need and that he was not homeless intentionally. In my judgment it is crystal clear that it had completed the enquiries mandated by section 184 of the Act.
The letter of 30 January goes on to notify the applicant that he had no local connection with the Defendant. It notified him too that he had a local connection with Waltham Forest. For that reason the Claimant was told that the Defendant had referred the Claimant’s application to that authority pursuant to section 198 of the Act. Thereafter under the heading “The Council’s Duty” the Defendant informed the Claimant that its decision meant that it was satisfied that the Claimant did not have a local connection with the Defendant and that “we are, therefore, unable to provide you with accommodation”.
It was not the case that finality awaited the resolution of the s.198 referral
Upon a referral by one local authority to another the authority to which the application is referred is bound to accept it if the conditions for referral are met. The 1996 Act provides a mechanism whereby disputes about the referral conditions can be determined. If a dispute arises and is resolved in favour of the referring authority the authority to whom the application is referred is bound to deal with it and it will be bound by the view which the referring authority has reached about homelessness, eligibility for assistance, priority need and intentional homelessness. Conversely, if the authority to which the referral has been made shows that the conditions for referral have not been met the referring authority will owe to the applicant the duty under section 193(2) to “secure that accommodation is available for occupation by the applicant”.
There were limited circumstances in which Brent could revisit its decision, in the event of fraud or deception on the part of the applicant which had induced the decision, or if, in making it, it had proceeded “from a fundamental mistake of fact”
Brent’s argument that the s.184 decision was brought about by a fundamental mistake of fact did not succeed, however. On the evidence, all the relevant facts were before Brent when the s.184 decision was made. Brent’s own failure to properly apply the eligibility regulations was not a mistake of fact.
The ‘second decision’ was quashed. Brent owed the s.200 duty to accommodate Mr S until the issue of the referral was resolved.
“Waltham Forest refused the referral on the basis that Mr S was not eligible for homeless assistance”
Hmm. Not a ground to refuse referral (although lack of eligibility does end the s193(2) duty). If LBWF didn’t like LBB’s decision on housing duty, their remedy was judicial review, not refusal of the referral.
Fair point. Judgment says
“On or about 8 February 2017 Waltham Forest made representations to the Defendant which were to the effect that the Claimant was not eligible for housing assistance. On that date Mr Nicol advised the Claimant by telephone that Waltham Forest had refused the referral on the basis that the Claimant was not eligible for assistance”.
It appears, however, that WF had made a previous decision on an application by Mr S and found not eligible. This was before Brent when they made their decision!
Eligibility can of course change (and honest mistakes can easily be made). S193(6)(a) exists to deal with loss of eligibility. It was surely open to LBB, having withdrawn the referral, then to make a decision that their duty had ceased by virtue of s193(6)(a); which makes their choice of trying to rescind their s184 decision incomprehensible.
Perhaps, though s.193(6) is ‘ceases to be eligible’. Be an interesting argument on whether he had actually ‘ceased’
True – but easier to run than “We haven’t made a decision she’s entitled to a full housing duty yet”; when s198(1) requires such a decision to have been made as a condition precedent to a referral.
The answer would be that she has to be taken to have been eligible at the date of the s184; and she isn’t now – so she must have ceased to be eligible at some point.
Good to discourage councils from playing inter-authority ping-pong with applicants.
Was it implicitly conceded that Brent’s favourable first decision was at least Wednesbury reasonable? Or does the judgment leave open the question whether, if Brent had itself promptly sought judicial review, Brent could have had its own first decision quashed (as sometimes, I think, happens for errant local planning approvals, when proceedings might be initiated by a senior councillor if not by the planning authority as such)? Or is there a general bar to housing authorities applying to undo their own mistakes when all acted in good faith?
Don’t see how Brent could JR their own decision…
Court of Appeal (Henderson, Longmore, Jackson LJJ) dismissed an appeal by Brent earlier today. Judgment after the summer.