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26/06/2022

Everyone in – Lambeth lacking a policy

R(Cort) v London Borough of Lambeth (2022) EWHC 1085 (Admin)

While in some ways this is a decision on an historic context (hopefully), there is a lot in this judgment on local authority approaches to housing in a public health emergency to consider.

This was a judicial review of Lambeth’s refusal to provide accommodation to Ms Cort under the ‘everyone in’ policy period. Ms Cort, like Mr Ncube, had no recourse to public funds (NRPF).

The Claimant first came to this country lawfully in August 2007, entering as a visitor, but overstayed. She is of black Caribbean ethnicity. Presently she is remaining unlawfully, but it would seem that she is taking steps to apply for discretionary leave to remain. Her status is such that she cannot access any of the publicly funded services, or have provision from local authority in relation to housing and social care needs which would be open to a person with lawful immigration status. Thus she is referred to as a person of NRPF, and I will use that description without intending any disrespect.

For a number of years she discharged caring responsibilities, initially for a disabled niece in South-West London and subsequently for her father, and she has lived at a variety of different locations whilst doing so. Because of wider family difficulties, the Claimant ceased to care for her father in June 2020, but thereafter secured accommodation in various hostels and other charitable institutions. Friends and family members who had previously provided the Claimant with a place to stay have since declined to assist, being fearful over the Covid 19 risk to them. She was able to obtain some temporary accommodation from the Defendant on an emergency basis in December 2020, although when it became apparent that she had no entitlement as a homeless person, she was asked to leave that accommodation in February 2021 from where she moved to a hostel run by the Glass Door homeless charity.

The Claimant, who otherwise has no particular health issues, is unvaccinated against coronavirus by choice. In June 2021 she learnt that the hostel accommodation could not continue, and the Claimant was informed that she would have to leave after 16 th June 2021.

Ms Cort sought temporary accommodation from Lambeth, referencing R (Ncube) v Brighton and Hove City Council (2021) EWHC (Admin) 578 (our note).

There were, in effect, three decisions by Lambeth.

The first letter, by Lambeth Legal,

acknowledged the powers which were available to the council under LGA and NHSA, the effect of the decision in Ncube, and also accepted that the Covid pandemic amounted to an emergency but challenged the assertion that the obligation was to provide temporary accommodation to all persons in the housing emergency, including those of NRPF status, save under the Children Act or the Care Act.

Further, it would amount to an open ended obligation, given that Ms Cort had only just applied for discretionary leave to remain, and pointed out that circumstances in June 2021 were different to those in Ncube as evictions were allowed. On Everyone In, it stated

‘We are instructed that the “Everyone in” policy was primarily directed at rough sleepers and no additional funding was provided for persons with no recourse to public funds’.

Following a protocol letter by Ms Cort’s solicitors, Lambeth Legal responded inn a second letter that

Our client does not consider that your client’s age and ethnicity are exceptional, nor do they provide justification for exercising the Council’s powers and/or discretion in your client’s favour. Our client has also considered the new information that your client has elected to disregard medical advice and not have a vaccination thereby exposing herself and others to increased risk of contracting Covid 19. It is noted that she is placing others at risk of being infected with Covid 19 whether or not she is provided with accommodation.’

The request was again stated to be open ended as Ms Cort had put forward no plans to obtain long term accommodation. And

The current restrictions in place as a result of the pandemic are much more limited than those that existed earlier this year. If the current restrictions are removed on 19 July 2021 Covid will still exist and your client, having decided not to be vaccinated, will remain at risk indefinitely with or without accommodation.’

Following the issue of the judicial review proceedings, there was was third response from Lambeth, this time from the Director of Public Health. This said

that the emergency arising from the pandemic had diminished with the mitigation available, meaning that section 138(a) of LGA was no longer applicable, although she accepted that Covid 19 was still a danger to life, and therefore section 138 (b) remained relevant. The measures required to be taken pursuant to section 138 (d) to alleviate the risk were her responsibility, and these were addressed in the Covid 19 Outbreak Management Plan, which was widely available to residents of Lambeth.

‘It is my view that the COVID-19 Outbreak Prevention and Control Plan along with the additional steps set out above are sufficient to, at the very least, alleviate the effects of the pandemic pursuant to section 138 of the Local Government Act. As a result, our planning does not include the provision of accommodation to NRPF applicants in order to alleviate the effects of COVID-19 at this stage of the pandemic where most other restrictions have been lifted from the 19th July 2021. There is provision for those who have no recourse to public funds to access Covid-19 testing, treatment and vaccination without charge through the NHS provision in place. No documentation or proof of eligibly is required to access these services. Moving to the power contained in section 2B NHS Act 2006. Given the preventative measures set out above it is not necessary to provide accommodation to improve the health of individuals within the borough.’
Ms Hutt described the circumstances in which accommodation might be provided:
‘I am aware that the Council cannot have a blanket policy on this matter, and I do hold an element of discretion in my decision making. Accordingly, there are circumstances where the short term provision of accommodation would be appropriate under these powers. Examples are of which could be where a person has an infectious disease and poses an infection risk to the wider public.’

Ms Cort argued

i) that there was an exercise of discretion by Lambeth exercised in an arbitrary and irrational manner as a) there was no policy adopted as to the exercise of the discretion, and b) the first letter did not explain the criteria applied in refusal to exercise the discretion.

ii)  The third letter showed an arbitrary process by reliance on a different set of criteria, the Outbreak Management Plan (OMP).

iii) The OMP “was silent on the provision of accommodation to any person whether NRPF or not and did not make reference to the Everyone in initiative or subsequent initiatives, suggesting that there was no policy to inform the exercise of the discretion, or that it was operating outside the published policy of the OMP.”

iv) The third decision was also unlawful as it did not take into account relevant considerations, including that funding had been received to accommodate NRPF people. and took into acount irrelevant considerations like Ms Cort’s immigration and NRPF status.

v) “the decision failed to take into account the fact that the Claimant had relevant characteristics, namely her age and ethnicity, and mistakenly regarded her refusal to have the vaccine as relevant to refusing accommodation, when these were matters which made her more vulnerable to contracting Covid 19. Reliance was placed upon the BMJ article on vaccine hesitancy amongst ethnic minorities. Taking such a characteristic into account was both arbitrary and irrational.”

vi) In the context of Everyone In, limited housing availability was an irrelevant consideration.

Lambeth argued that, as per R(ZLL) v SSHCLG (2022) EWHC 85 (Admin) (our note), Everyone In was a ‘call to action’ not a policy, and that it was for the local authority to make decisions. Ut was an evaluative judgement by the local authority. The OMP was a clear published policy “which addressed the relevant discretion which the Defendant authority was required to exercise, that is whether it was considered necessary to avert, alleviate or eradicate the effects or potential effects of Covid 19 by securing accommodation other than for self-isolation. ”

Lambeth argued there was no arbitrariness or inconsistency in decisions:

on the basis that the factors all identified by the Claimant must be relevant to the “exceptional exercise of the discretion” were clearly covered in all three letters.

In respect of the question of relevance and irrelevance, Ms Etiebet made several points. First the NRPF status of the Claimant was not an exclusionary factor, and the council was entitled to consider whether or not its powers were being invoked to circumvent section 185. Second, there was no taking into account other irrelevant statutory provisions, and the references to the Care Act and the Children Act were contextual, because an assessment had been made at an earlier stage in relation to the Claimant. Third, Everyone in could not be regarded as a prescriptive policy which required the council to act in a particular way. In any event, it was taken into account in the letter of 21 st July when the decision maker had regard to the fact that other restrictions were being largely lifted from 19 th July. The limited and finite nature of resources were matters which the decision maker was entitled to take into account, when the funding stream was not open-ended or indefinite, and it was clear that “move on” accommodation, to which those of NRPF would not be entitled, was likely to be the main identified area for further funding.

The High Court held

i) As demonstrated by Ncube, it was clearly possible for the local authority to have adopted a policy in relation to its actions under Everyone In. There was no evidence provided by Lambeth as to whether there was a policy and if so, what it was.

Although reference was made to the Everyone in policy in 15 th June letter, in my judgment it is a valid criticism that there was no identification of any criteria which might be applied to determine those who are in need and those who are not. This was particularly important because the statement is made by the Defendant that the policy was primarily directed at rough sleepers with no additional funding provided for those with no recourse to public funds. This implies that at some stage an assessment had been made as to how funds might be administered, or perhaps that consideration had been given to an approach which would exclude those of NRPF. The letter ends in this way:

‘The situation in the borough is that there are many individuals in need in and unfortunately the Council does not have the resources to fund all those in need and therefore must be prioritise those resources and assist those in most need.’

Insofar as a discretionary power existed (which is not disputed) the Claimant was entitled to know how the council might define those most in need, and in particular whether there was a policy to exclude persons with no immigration status, such as her.

The second letter took things no further, identifying no criteria against which the Ms Cort had been assessed.

Reference has been made in the Defendant’s case to the taking of an “evaluative” judgment. The difficulty, however, is that the process by which the judgment is arrived at is not clear. On the basis of these two letters it would appear that it is the individual assessment of the legal officer as to the Claimant’s particular circumstances which have informed the judgment but there is no reference to any external criteria.

As such, the challenge would have succeeded on grounds of arbitrariness had it only been the first two letters under review.

The third letter did raise a clear policy, the OMP. However, while Lambeth was entitled to review its earlier decisions and the Director of Public Health could apply different considerations to the first decisions, the third letter failed on the basis of failure to identify relevant and irrelevant considerations.

For a reviewing court to have confidence in the lawfulness of the ultimate decision, all relevant matters must be identified, and irrelevant matters excluded. Whilst the Claimant’s challenge is multi-faceted, some of the features relied upon as irrelevant carry little weight and are largely contextual. The reference to duties owed under the Housing Act 1996, the Care act or the children Act do not, it seems to me, appear to have informed the decision, nor does the Claimant’s ability to rely upon family and friends to provide accommodation. In the latter respect was simply an observation that it was something the Claimant was able to do previously.

The more significant aspect which raises concerns that the decision has been informed by irrelevant matters is the reference to the Claimant’s immigration status and the fact that she has no recourse to public funds. The point is validly made by counsel for the Claimant that this was the very reason why she was seeking assistance, in the light of Ncube , via the route of the broader discretionary powers available under LGA and NHSA. I accept the argument that it should not have been a factor weighed in the balance for excluding an entitlement to accommodation, although it is not entirely clear how the Defendant was approaching this. Obviously, the decision maker was entitled to consider whether or not the application was a means of seeking to circumvent section 185 of the 1996 Act.

In my judgment it is the absence of an appropriate and relevant consideration of the effect of the national policy and exhortation in Everyone in , which was supported by funding to provide accommodation for the street homeless, regardless of immigration status, which renders this decision-making process flawed.

(…)

The third letter, whilst undoubtedly comprehensive as to the public health measures which were being put in place for all residents in the Lambeth borough, regardless of the immigration status or recourse to public funds, did not make any mention of the national initiative of Everyone in , or the request which had emanated from central government approximately 15 months earlier that all persons should be accommodated regardless of their status to prevent their infection from Covid 19 and of course the risk to their health. Instead it was fixated on preventing the spread of the infection, and utilising the statutory powers referred to, in order to discharge any duty which was owed. Insofar as Ms Hutt relied upon the OMP, a scrutiny of that guidance/policy document does not reveal any reference to the street homeless, or the extent to which those who were sleeping rough could be protected, bearing in mind, as the document acknowledged, that there was still a very high risk of infection spread.

In my judgment the Claimant, bearing in mind the application that had been made, was entitled to a consideration as to whether or not the national initiative, which was at the very least an exhortation by national government with appropriately provided funding, applied in her case, or whether and if so why she was being excluded from emergency accommodation. With no clear reference to the powers being exercised in this way this court cannot have confidence that all relevant considerations were taken into account. This was not difficult. It only required the decision maker to indicate how the national initiative was being interpreted and whether there was any scope for rough sleepers to be accommodated, as national government had requested.

The absence of this reference, in my judgment, means that an important and informative relevant consideration was missing from the decision-making process, not only in the earlier letters, but in the key decision letter in July 2021. It removes any confidence which this court can have that the decision was made on the correct basis, and thus renders the decision flawed in public law terms.

Lambeth’s decision quashed. Ms Cort had remained in temporary accommodation but any fresh decision would be made in the present circumstances.

Comment

Although very likely to now be academic for the purposes of any further assistance for Ms Cort, the judgment is a sound one. If large scale emergency assistance, such as Everyone In, is to be be given by local authorities, there has to be a policy basis for who is assisted. It might be everyone, or no-one. But if there are to be limits and ‘evaluative decisions’, then the basis for those limits and evaluations need to be established and reasons given to those about whom the decisions are being made.

 

 

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.

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