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19/02/2022

Homelessness – second applications and new facts threshold.

Minott v Cambridge City Council (2022) EWCA Civ 159

This was Mr Minott’s appeal from a judicial review that upheld Cambridge’s refusal to accept a second homeless application. Our note on the JR decision is here.

In short, Mr M had applied to Cambridge as homeless and been placed in temporary accommodation. Cambridge accepted that he as homeless, eligible and in priority need, but went on to find that he had a local connection to Sandwell MBC and no local connection to Cambridge. A referral to Sandwell was made and accepted by that council. However, Mr M refused to leave his temporary accommodation, which was terminated, resisting attempts to change the locks. Soon after a review decision, upholding the referral, Mr M made a fresh application to Cambridge, on the basis that he now had a local connection of 6 months, (including 6 weeks of unlawful occupation of the temporary accommodation).

Cambridge refused to accept the application as containing no new facts that met the ‘more than trivial or fanciful’ test. At judicial review, Mr M’s claim was dismissed, for reasons that focussed strongly on Mr M’s unlawful occupation, and held that ‘other than the passage of time, nothing had changed’. Mr M appealed to the Court of Appeal.

The Court of Appeal allowed the appeal.

In Rikha Begum v Tower Hamlets LBC (2005) EWCA Civ 340 Neuberger LJ (as he was then), set out “what guidance we can” on second applications and new facts:

it was advised that the applicant should identify the relevant changes in fact on the new application; see para. 59. If no new facts are revealed or the facts are, to the authority’s knowledge and without further investigation, “not new, fanciful, or trivial” then the purported application is “no application”. “The facts may not be new because they were known to, and taken into account by, the authority when it offered the applicant accommodation to satisfy the earlier application.” Whether new facts are fanciful or trivial must inevitably turn on the “particular circumstances of the particular case”: see para. 60.

Where the fresh application appears to reveal new facts, which are, in light of the information then available to the authority, neither trivial or fanciful, although they may turn out to be inaccurate or insufficient for the applicant’s purposes on investigation, the LHA must treat the subsequent application as a valid application. The LHA are not entitled to investigate the accuracy of the alleged new facts before deciding whether to treat the application as valid: see para. 61.

The comparison was to be made between the facts as had been determined in the previous application or review, and the asserted facts of the new application and any other associated documentation: see paragraph 46.

In this appeal. Cambridge continued to argue that the status of the terminated accommodation and unlawful occupation eant that it could not count for local connection as ‘normal residence. Mr Grundy QC (for Cambridge):

acknowledges, as he is bound to do, that the clear ratio in Mohamed is that temporary or interim accommodation provided by an LHA in accordance with its HA 96 Part 7 statutory duties may count towards normal residence. However, he maintains that ‘normal residence’ for the purposes of establishing a local connection may depend on an applicant’s security of occupation of particular premises or such places as parks and doorways. (…)

He submits that the period of time in which Mr Minott had been ‘normally resident’ according to Mohamed had ended with the notice to quit; his unlawful possession of the property and defiance of any attempts to evict him demonstrated the precariousness of his situation and did not constitute normal residence capable of establishing a local connection with Cambridge.

But this was to miss, or compound the point.

It seems to me that Mr Grundy’s arguments mirror CCC’s decision that the application “need not be taken” having combined the two-stage process of fresh application and statutory inquiries into one. The peg upon which CCC hang their case is focused upon the property and whether this could be said to be ‘secured’ to precisely mirror the final sentence in paragraph 4(3) of the Local Authorities Agreement and not, as required by section 199, the district.

It was not possible to reach a summary decision on the residence issue

I do not accept that it is possible to say summarily that Mr Minott did not continue to ‘normally’ reside in the property. To find otherwise would fly in the face of the reasoning in Mohamed and R(N). Mr Grundy’s arguments conflate the issue of the factual basis of Mr Minott’s fresh application and the pre-emptive qualitative assessment of whether the nature of his residence would suffice to establish a local connection. I consider them to demonstrate a process prohibited by Fahia as confirmed in Begum.

On that issue, ‘residence’ should not be taken as settled accommodation per se, nor did it have the qualifiers of ‘ordinary’ or ‘normal’ residence in an abstract sense.

Significantly, Lord Slynn at paragraph 18 of Mohamed  (Mohamed v Hammersmith and Fulham LBC (2001) UKHL 57 ) re-considered the approach taken to ‘normal residence’ as discussed in R v Barnet London Borough Council, Ex p Nilish Shah (1983) 2 AC 309, 343, upon which Betts was based, and made clear that “the prima facie meaning of normal residence is a place where at the relevant time the person in fact resides…..and it is not appropriate to consider whether in a general or abstract sense such a place would be considered an ordinary or normal residence”. I agree with Mr Vanhegan, who represents Mr Minott, that Mohamed thereby departs decisively from Lord Brightman’s speech in Betts at p.628 B to D which suggests that the definition of normally resident “will take its colour” from residence which is only relevant if it is such as to establish a local connection with the relevant district. R(N) v Lewisham London Borough Council (2015) AC 1259, confirms this change of stance in that Lord Hodge, with whom the majority of the Supreme Court agreed, approved the lesser connotation of the word “residence” as opposed to “dwelling” which suggested a greater degree of settled occupation.”: see paras. 26, 44 and 45.

The Court below had fallen into error in accepting Cambridge’s arguments as to the status of the residence and in its disapproval of Mr M’s tactics. However, any policy argument on the impact on local authorities had been dealt with and rejected in Mohamed v H&F.

The possibility that Mr M had met the 6 month residence local connection guideline in the statutory guidance was a ‘new fact’, not simply an elapse of time. Rejecting this on a summary basis of ‘no new fact’ was an irrational decision by Cambridge.

On process on second applications (or any subsequent application’, as Lord Lewison’s concurring judgment puts is:

i) Stage 1: it is an application at all? The answer will only be no if it is based on precisely the same facts as an earlier application (disregarding fanciful allegations and trivial facts);

ii) Stage 2: if it is an application, is it well-founded? That will require the housing authority to carry out the inquiries required by section 184. If an application passes stage 1, there is no available short cut.

A summary decision on the merits of the ‘new fact’ is in fact a s.184 decision, after enquiries (even if brief). It is subject to review in the usual way. It cannot be (unless the asserted new fact is ‘trival or fanciful’) the basis for refusing an application.

 

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

3 Comments

  1. Ron Platt

    Giles, In the 1st paragraph of M v CCC your sentence “Our note on the JR decision is here.” does not have the URL for the JR decision attached to “here”. Can you modify “here” please?

    Reply
  2. Ron Platt

    Thanks.

    Reply

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