In this case, Fordham J scrutinised the nature of “Everyone In”  and analysed whether it was a “policy”, such as to impose public law duties on the Secretary of State on its curtailment. The judgment (2022) EWHC 85 (Admin) contains a detailed discussion of the ingredients that make a policy, and a pithy take on when the need to consult stakeholders arises.  The judge finds that Everyone In cannot properly be described as prescriptive policy guidance, but can safely be described as “an initiative”, so the Secretary of State was not bound by the constraints on changing policy.  Judgment was given under the old Departmental name, since changed to the snappy Department for Levelling Up, Housing and Communities.  The two interested parties, Camden LB Council and Shelter, did not appear.

The case concerned a Chinese national, ZLL, with No Recourse to Public Funds (NRPF) after his visa expired in 2004. ZLL spent many years rough sleeping, and in April 21 approached Camden Council for accommodation, relying on Everyone In. Camden declined to exercise its discretion to accommodate him, saying ZLL was not within the “most vulnerable” category of rough sleepers.  The decision not to accommodate is being challenged by a separate judicial review, stayed behind this one.

ZLL sought judicial review on two grounds, claiming:
– the Secretary of State was in breach of his public law duties by adopting an unpublished policy position that did not conform with published government policy; and
-breach of the public law duty to consult by failing to consult Shelter on the change of policy.

The first ground turned on the Defendant’s decision to end Everyone In without openly announcing this change.  The Claimant relied on two documents in particular in saying this was the position.  The first was the Government Legal Department’s letter in response to ZLL’s Pre-action Protocol letter, and the second was a passage in the Defendant’s Detailed Grounds of Resistance. The Claimant said those documents acknowledged that the Secretary of State had curtailed Everyone In by discontinuing the guidance to local authorities, without publishing its revised policy.  The Claimant did not argue that there had been any breach of his human rights, nor did he allege a breach of legitimate expectation or breach of any public law standard of reasonableness.

Fordham J set out the various iterations of Everyone In and similar initiatives, considering the series of letters, emails and announcements on rough sleeping and NRPF that were made during the pandemic.  These ranged from the early, highly responsive stage in March 20 to more developed and contextual stage where other initiatives such as supported homes, ‘next steps’ accommodation and the Rough Sleeping Initiative came to the fore.

The judge then set out some common ground between the parties, which he described as ‘basic legal points’ (para 7).  It is accepted that local authorities are creatures of statute and cannot act beyond their powers.  They have no non-statutory or common law powers.  Everyone agreed that the Ncube v Brighton decision had shown there was no ‘roadblock’ in providing accommodation for all, including those with NRPF.  To be lawful, where the Secretary of State promulgated a policy, there was a need for clarity on what the policy was, to ensure consistency and protect against arbitrariness.  A policy should be published, and those bound by it must act in accordance with the policy unless they have good reason to depart from it.  Determination in accordance with a policy is good administration rather than legitimate expectation.  Guidance can be issued from a public body that is not the decision maker in a specific case.  It is open to the Court, in the exercise of its supervisory jurisdiction, to interpret whether the decision maker has complied with applicable public law duties in making or changing a policy.

Fordham J then considered the nature of Everyone In and what it was trying to do.  He quoted positively from Departmental statements describing Everyone In as a “call to action” with a “resonant and inclusive” title: an exhortation to local authorities to do what they could during a frightening time, when decisions had to be made on the hoof.  He found that this type of language and some of the more ad hoc aspects of the initiative meant it was unlikely to be a policy.  It did not change the status quo, those with NRPF were still in that position following the initiative, but it urged local authorities to consider their options in a crisis.  There was a link between the tranches of money made available and the exhortations to provide accommodation, but the initiative was not framed as a programme supported by a continuum of designated funding.  Local authorities were not being directed, they were being encouraged to make arrangements for those in their area.  This detracted from the more common ‘telling’ approach that central Government uses when it issues prescriptive policy guidance.

In the case of homelessness, there was already a well established statutory and policy framework covering the area.  Everyone In was to operate alongside other initiatives such as ‘move on’ accommodation and the RSI rather than be a new policy.  At the other end of the spectrum, he compared this case to R v SSHD ex parte Simms [2000] 2 AC 115 at 131 E-F where there was an issue of legality, and government was legislating in a manner that was contrary to fundamental human rights.  In that case, Parliament had to ‘squarely confront what it is doing’.  In relation to Everyone In, there may be some ambiguity, and a lack of precision about statements as they were made, but this does not mean it is unlawful.  He did accept that there was: “an elusiveness, a fluidity and an ambiguity” to these communications, which made it difficult for those advising to ascertain what was happening (para 44 of the judgment).

Amongst the public duties the judge considered could be potentially of greatest relevance were the duty of publication, the duty of prescription (local authorities had to apply the policy in an exact way), the duty of conformity and the entitlement of conformity (an applicant could expect to have the policy applied to them).  He found that these duties were not triggered because of the nature of the initiative:

“The public law duties of ‘conformity’ and ‘publication’ do not follow wherever there is an ‘initiative’ which is an aspect of Government ‘policy’ with general implications for individuals.”

Where the Secretary of State needed to be held to account for failings in transparency or clarity, that should happen in the political arena rather than in the Courts.

Once this decision had been made on the first ground, the second ground was dealt with very quickly.  There was no duty to consult established by a legitimate expectation arising from past practice.  The Claimants pointed to a series of meetings between Shelter with Ministers and officials as evidencing an established practice of consultation, but the judge was not persuaded by this.  To be effective, any obligation to consult would have had to be engaged when the ending of the policy was at a formative stage.  Because the judge found there was no unannounced curtailment, only a natural ‘ebb and flow’, there was nothing on which stakeholders needed to be consulted.

Comment
This will be seen as a set-back for many who have followed Everyone In, especially following the largely positive decision in Ncube v Brighton.  Fordham J does seem to suggest that political engagement may provide a way forward for those affected by any reduction of the scheme now that the initial shock of Covid seems to be wearing off. Even if the analysis is right and the Secretary of State was not obliged to set out where things had got to, there would have been nothing to stop him spelling this out.  It may be that central government preferred to take a hands-off approach and to leave local authorities to navigate decisions by themselves.