The much-anticipated decision in R(Ncube) v Brighton and Hove City Council (2021) EWHC 578 (Admin) has arrived, confirming that in an emergency, “Everyone In” really does mean everyone.  Mr Ncube was a rough sleeper and refused asylum seeker from Zimbabwe who sought accommodation from Brighton. The council found Mr Ncube ineligible for assistance because of his NRPF status, applying s.185 of the 1996 Act and the relevant secondary legislation. “NRPF” meaning someone with “no recourse to public funds” including the provision of temporary accommodation under Part VII of the Housing Act 1996 (the 1996 Act).  From 30th November 2020 Mr Ncube was accommodated by the Home Office under s.4 of the Immigration and Asylum Act 1999 (the 1999 Act). Those powers state that the Secretary of State may provide accommodation where an asylum application has been refused, but there is an obstacle to the applicant returning to their country of origin.

Freedman J discussed the academic nature of the claim and the court’s powers to hear academic argument.  Mr Ncube had been accommodated before the hearing took place, so the claim proceeded on the basis that it was an exceptional case of wider public interest, where an error of law had been made, relying on the Zoolife decision (2007) EWHC 2995 (Admin).  In addition, a large number of similar cases were expected and the decision was not purely about the facts of Mr Ncube’s situation.  The case turned on whether the local authority had alternative powers to provide accommodation, given the effect of s.185 and the fact that a local authority has no non-statutory powers.

Everyone In
“Everyone In” was a broad-brush policy set out in a letter from Luke Hall MP, Minister for Local Government and Homelessness, in a letter to local authorities of 26th March 2020, in the very early stages of the first national lockdown.  It provided that rough sleepers and other vulnerable homeless people must be supported into accommodation by the end of that week.  The twin aims of Everyone In were to protect the health of the rough sleepers, and to stop wider transmission of Covid 19.  The numbers accommodated were impressive.  A House of Commons interim report of 22nd May 2020, “Protecting Rough Sleepers and Renters”, found that in London alone, 900 people with NRPF were accommodated.  In Brighton it was at least 30 people.  The policy evolved with the pandemic, and in further letters from the Ministers of 28th May 2020 and 22nd September 2020, local authorities were told that eligibility was left to their judgment, and comparisons were made with local authorities’ ability to accommodate those with NRPF during extreme weather events.  The 22nd September letter said that support must comply with legal restrictions.  A UCL article for The Lancet found that the application of the policy up until May 2020 had prevented 21,000 infections and 266 deaths.

Alternative power: s.138 Local Government Act 1972
Section 138 of the Local Government Act 1972 (the 1972 Act) gives “principal councils” additional powers during emergencies or disasters.  The Claimant set out that there are four matters for the local authority to consider when deciding whether the conditions for the power to be exercised are met:

– there has been an emergency or disaster, or it is imminent, or there are reasonable grounds for apprehending     an emergency or disaster;
– the type of disaster is one involving danger to life or property;
– if so, the Council is of the opinion that the emergency or disaster is likely to affect its area or some of its inhabitants;
– if so, the Council may incur such expenditure as they may consider necessary to avert, alleviate or eradicate some of its effects or potential effects.

The Claimant submitted evidence that each of the above criteria were met, drawing on WHO reports of the situation in the UK as well as the Defendant’s own policy documents and emergency response planning.  In response, the Defendant submitted evidence from public health officials in Brighton, that infection rates in the local area were low, and well below the national average.  Brighton at the relevant time was in Tier 1, and locally there was not a view that this was an emergency or disaster.  The Claimant said that even if Brighton was in Tier 1, these classifications were only introduced because of pandemic risk.  It was not a case of one set of powers overriding another, but of an independent right to assistance if the trigger was met.  The question was not how the local authority ought to exercise its discretion, but whether it had the power to provide accommodation to someone with NRPF.

The judge found that the conditions for exercise of the emergency powers had been met.  The powers were cast in wide terms, unaffected by the eligibility criteria in s. 185, and would have been available to provide accommodation to those in Mr Ncube’s position.  The decision that the local area was not facing an emergency or a disaster was not one reasonably open to the council.

Alternative power: s.2B NHS Act 2006
This power, described as being cast in “broad and all-encompassing terms” by the Claimant, sets out a target duty for local authorities to act to improve the health of those in the local community.  The Defendant argued that this did not create a specific or mandatory duty owed to an individual, and nothing in the power related to the provision of accommodation.  In response, the Claimant submitted that healthcare was often provided with an accommodation element, for example through residential drug and alcohol services or in-patient mental health services, and also through the severe weather protocol which enables councils to accommodate people during extreme weather events.  The judge held that use of this power was also an option available to local authorities, set out in a separate statutory regime with distinct statutory purposes. Use of the power in this way was not an attempt to circumvent the 1996 Act exclusions, and was not an artificial or strained use.  Relying on it to accommodate those with NRPF would be within the target of “addressing public health functions” aimed at by the legislation.

Off limits: s.180 1996 Act and ss.1 and 2 of the Localism Act 2011
The judge dispensed with the idea that s.180 of the 1996 Act, which enables the council to provide assistance to voluntary organisations working in homelessness, could assist the Claimants.  He found that s.180 it was not affected by the exclusion at s.185, and was wide enough to enable an organisation to provide accommodation for those with NRPF.  It could not assist the Claimant because there was no specifically enforceable duty or power to assist an individual.

The final set of powers considered was the general power of competence for local authorities set out at ss.1 and 2 of the Localism Act 2011 (the 2011 Act).  The power gives local authorities the ability to do: “anything that individuals generally may do”, and is cast in very broad terms. The Claimant, supported by Shelter as interveners, argued that the power should be read to include a power to accommodate where this was necessary to comply with the European Convention on Human Rights (the Convention).  The suggested wording did not make reference to an emergency.

The power is expressed to apply except where precluded by a limitation set out in another statue, in force before the commencement of the 2011 Act, or where a post-commencement limitation is set out in other legislation,  expressed to apply to the general power. The Claimant and Shelter acknowledged the obstacle of s.185 as a pre-commencement limitation, but argued that this should be disapplied to give the required Convention-compliant reading.

These submissions prompted a lengthy discussion by the judge, which I haven’t set out here, but the judge concluded it was not necessary for the court to go down this path.  He declined to “read down” the Localism Act 2011 to comply with the Convention: human rights claims were fact specific and the insertion of words of broad scope risked going too far, and straying from the emergency health protection envisaged by “Everyone In”.  The Claimant had an independent mechanism for support through s.4 of the 1999 Act, where a refused asylum seeker faced a practical or legal impediment to return to their country of origin.  That statutory power was conferred on the Secretary of State for Home Department, and responsibility lay with Home Secretary.  Any delay in providing accommodation, or other problem, should lead to challenge of the Secretary of State. Whether it was necessary to act to avoid a breach of the Convention could only be assessed case by case, and the Admin Court should be reluctant to do that on an academic claim.  It would require a multi-factorial inquiry in relation to each application, for example to assess the level of destitution.

The judge also concluded that the 2011 Act powers alone could not be used to provide accommodation, and finding otherwise risked driving a coach and horses through the statutory scheme of the 1996 Act.  The 2011 Act powers do not have a “free standing” role to provide accommodation, this requires the exercise of a more specific set of powers.

Comment
This judgment clarifies the unanswered question being asked from the early days of “Everyone In” as to what powers were being relied on, amongst the general confusion that the national lockdown brought about.  Councils such as Brighton are obviously working in the context of austerity measures introduced by earlier governments, and it will be interesting to see whether the judgment is appealed.  The judge was careful to limit the scope of the decision to emergency situations, and to statutory regimes that were discrete and self-contained, rather than competing with the 1996 Act.  The decision to hear the case even though it had become academic has created clear points of principle to be followed, without being overly fact specific.