In this irrationality challenge, R(Minott) v Cambridge City Council (2021) EWHC 211 (Admin), the High Court rejected Mr Minott’s claim that his unlawful occupation of a property gave him a local connection to Cambridge. It also rejected his submission that this “new fact” was such that the local housing authority should have considered a second homelessness application. HHJ Lickley QC, sitting as a Deputy High Court Judge, described Mr Minott’s actions as: “tantamount to a manipulation of the homeless statutory scheme”.
The first application
Mr Minott lived in West Bromwich with his father until April 2018 when the relationship broke down and he became homeless. He assisted his mother to escape domestic violence from an ex-partner, and together with his mother and siblings settled in Cambridge. Mr Minott worked as courier, operating from a driver depot in Birmingham, and slept in his van or sofa surfed with friends in Cambridge. He applied to the Council as homeless on 26/3/19, and was given temporary accommodation (TA) that day at 27 Gilbert Close, Cambridge, under s.188 Housing Act 1996 (the 1996 Act). He was found to be eligible, homeless and in priority need because he had a dependant child.
After carrying out inquiries, the Council found that Mr Minott did not have a local connection to Cambridge, but would refer him to Sandwell MBC in the West Midlands where he did have a local connection (ss.198 and 199 HA 96). Sandwell accepted the referral on 9/8/19. The Council sent Mr Minott a letter explaining this on 19/8/19, telling him his TA would be terminated, and that Sandwell would provide TA instead. The letter advised him of his review right under s.202(1), and a review was requested on 22/8/21. The Council declined to provide TA pending review but TA was available to him in Sandwell.
Mr Minott’s licence to occupy 27 Gilbert Close was terminated and he was required to give up possession on 2/9/19, after which date he was advised the locks would be changed. Several attempts to change the locks were made, but because Mr Minott was at the property at the time and opposed the Council seeking to enter, s.6 of the Criminal Law Act 1977 meant the Council could not carry this out. Mr Minott told the Housing Officer he intended to remain in order to acquire a local connection. On 25/9/19 the review upheld the original decision. The letter advised Mr Minott of his appeal right to the County Court but no appeal was lodged.
The second application
On 17/10/19 Mr Minott made his second homelessness application, relying on approximately six weeks unlawful occupation of 27 Gilbert Close as giving rise to new facts i.e. the establishment of a local connection. By that date he had been resident in Cambridge for over six months. The second application was rejected by the Council on 21/10/19 as containing no new facts that met the required “neither trivial nor fanciful” test. On 23/10/19 the Council commenced possession proceedings. Mr Minott issued his claim for judicial review on 5/11/19.
The Court’s analysis
The Council had exercised the option of inquiring about local connection to another housing authority. They considered that the conditions were satisfied: Mr Minott had no local connection with Cambridge, did have one with Sandwell, and that there was no risk of violence in Sandwell if Mr Minott returned there. Mr Minott was treated as having made a homeless application to Sandwell, and Cambridge then stopped owing any duty including interim duties. A separate duty arose under s.199A(2) because Mr Minott was in priority need owing to his dependant child. That meant the Council had to secure accommodation until Mr Minott was informed about the referral.
The judge reviewed the grounds for establishing local connection: (a) normally resident in the local area through choice; (b) local employment; (c) family associations; or (d) special circumstances (s.199(1) 1996 Act). The legislation should not be interpreted mechanistically, Lord Brightman in Re Betts (1983) 2 AC 613 stated that “just legislation” must mean local connection is established “in real terms” and an applicant needs to show enduring ties to an area. “Normal residence” was interpreted in accordance with the Homeless Code of Guidance 2018, paras 10.5,6,7,13 and 14 (the Code). This can include temporary accommodation, street homelessness and sofa surfing. The overriding criteria is a meaningful connection to the area. Local connection can be established by normal residence of more than six months in the previous 12, or three years in the previous five. HHJ Lickley also considered Mohamed v Hammersmith and Fulham (2003) 1 AC 547. At para 21 of Mohamed, Lord Slynn confirmed that temporary accommodation can be “normal residence of choice” and establish a local connection. A bare six months residence was not sufficient if that was the extent of the local connection, and each case turned on its facts.
The judge found that there is nothing in the 1996 Act to prevent repeated applications for homelessness assistance. In the case of Begum v Tower Hamlets (2005) 1 WLR 2103, Neuberger LJ (as he then was) said that an authority could only reject a second or subsequent application which was based on exactly the same facts as the previous application. The point at which to compare the old and new facts was when the earlier application was disposed of, either when it was decided or when it was reviewed.
The judge confirmed that the standard of review in this case was irrationality, as set out by Singh J (as he then was) in R(May) v Birmingham CC (2012) EWCA 1399 (Admin). Mr Minott would be successful on his judicial review if the decision was one no reasonable local housing authority could have made.
The judge rejected Mr Minott’s submissions that there was nothing in the legislation or the Code stating that local connection or normal residence had to be lawfully established. Mr Minott’s actions in frustrating the Council’s attempt to change the locks were: “tantamount to a manipulation of the homeless statutory regime” and: “other than the passage of time nothing had changed”. The judge also rejected an eyebrow-raising submission comparing the unlawful occupation of the property to that of a Rent Act 1977 protected tenant after service of notice to quit. Mr Minott’s second application disclosed no new facts that were not trivial or fanciful, and it was within the local housing authority’s range of reasonable responses to reject it. There was no error of law.
Comment
This decision is a useful refresher on the detail of the local connection requirement and how to meet it. It makes it clear that there is a qualitative as well as temporal judgment to be made about normal residence, and a way to approach the rules that needs to embrace the spirit of the law as well as the letter. Mr Minott had put himself in a difficult position by a conscious decision not to leave the property and to use his unlawful occupation in support of his application. The fact that the Court will only intervene where the local housing authority acted in a perverse or irrational way makes it difficult for a claimant to succeed unless there are significant new facts on a second application. To compare this judgment with such a case, you might like to have a look at Nearly Legal’s article on R(Bukartyk) v Welwyn Hatfield BC (2019) EWHC 3480 (Admin).