AMIRUN BEGUM (1) and NASHIMA BEGUM (2) v THE LONDON BOROUGH OF TOWER HAMLETS [2002] EWHC 633 (Admin)

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
[2002] EWHC 633 (Admin)Case No Case No: CO/4547/2001Venue Royal Courts of Justice, Strand,, London, WC2A 2LL
Between
AMIRUN BEGUM (1) and NASHIMA BEGUM (2)ClaimantsTHE LONDON BOROUGH OF TOWER HAMLETSDefendant
Before
Mr Justice Stanley BurntonKate Markus (instructed by T V Edwards) for the ClaimantsKelvin Rutledge (instructed by Tower Hamlets Legal Services) for the DefendantDate 30 April 2002
[1]Mr Justice Stanley Burnton: The facts This is an application by Amirun Begum (to whom I shall refer as Mrs Begum) and her daughter Nashima Begum for orders requiring the Defendant to provide suitable accommodation for them and their extended family under Part 7 of the Housing Act 1996 (“the Act”).[2]The extended family is extremely disadvantaged. It is unnecessary to set out in detail all their medical and other problems, but some description is necessary. Mrs Begum is aged 56. She suffers from severe arthritis, severe diabetes, hypertension, a stomach ulcer, ischaemic heart disease, impaired vision and urinary incontinence, among other matters. The degree of her immobility is in issue, but it is accepted that she cannot climb stairs. She requires significant personal care, which is provided by her children.[3]Nashima is aged 19. She has cerebral palsy and learning difficulties and is a full-time wheelchair user. She has a mental age of 4. She is doubly incontinent. She too requires constant personal care, which is provided by her siblings and by Rokib Ali’s wife.[4]Mrs Begum has 10 other children:(a) Momota is aged 30. She has a daughter born in October 2000. She is relatively well.(b) Ruhi Begum is aged 29. She does not live with her mother, but helps care for her and others in the family. According to the claim form, she suffers from chronic bronchial asthma and other conditions, and is in turn cared for by Rokib.(c) Forid Ali, aged 27. He is married, with 2 children, aged about 6 months and 2 years. His wife is Rumana. Forid was a drug abuser, and then had a tendency to self-harm. There is an issue as to the extent to which he remains vulnerable to drug abuse and self harm. According to his present and his previous General Practitioner, he is now free of drugs and has been very stable since May 2000 and does not need family support. A letter dated 15 March 2002 from Violet Smith, a health visitor, gives a different picture, stating that Forid is incapable of looking after himself or his family, that there have been intermittent relapses and episodes of self-harm, and that Rumana too requires a great deal of supervision and support to cope with the children, provided in particular by Momota.(d) Rokib Ali is aged 26. He provides care to other members of the family.(e) Altab Ali is aged 25. He is mentally disabled and requires constant care and supervision.(f) Anam Ali, aged 23, suffers from asthma. He is the official carer for Amirun, and responsible for administering her medication and injections, among other matters.(g) Amzad Ali, aged 22. According to the Claimants, he suffered a slipped disc while lifting Nashima, and was advised not to lift her again. His General Practitioner states that he suffered backache. He helps care for both Nashima and Mrs Begum.(h) Mored Ali is aged 21. He suffers from asthma (which may be very mild) and is dyslexic.(i) Fatima, aged 17. According to the Claimants, she suffers from bronchitis and arthritis. Her General Practitioner however considers that she has no significant continuing medical problems.(j) Amina. According to the Claimants, she suffers from asthma, Turner’s syndrome and depression. Her General Practitioner refers only to Turner’s syndrome, and states that her condition has no relevance to her housing needs.[5]Mrs Begum was separated from her husband in 1998 as a result of his violence. She applied to the Defendant under Part 7 of the Act on the basis that she and her children were homeless. The Defendant provided them with accommodation under s. 188. It was unsuitable for their needs. In January 1999, they were offered their present accommodation, consisting of adjacent houses at 141 and 143 Knapp Rd, in Bow, London E3. These houses are owned by the Defendant but let to LABO Housing Association. Mrs Begum accepted that accommodation against the advice of their occupational therapist, who considered it to be unsuitable for the family’s needs. It consists of 2 adjacent houses, each with 3 bedrooms, 2 reception rooms, a kitchen and a garden. There is no downstairs toilet or bathroom; as a result neither Mrs Begum nor Nashima has access to these basic facilities, and Mrs Begum is either unable to use them or finds using the stairs so painful that she avoids doing so. The houses are not suitable for wheelchair access.[6]By letter dated 7 April 1999, the Defendant informed Mrs Begum that it was satisfied that she was eligible for housing assistance, was homeless and had a priority need for accommodation as defined in the Act; and that her homelessness was not intentional. In other words, the Defendant accepted that it was under the duty to secure suitable accommodation for her and, it would seem, her family, under s. 193 of the Act.[7]Mrs Begum and her family have remained in Knapp Rd since January 1999.[8]In December 2000, the Defendant nominated Mrs Begum to a four-bedroom fully-adapted property of Springboard Housing Association. It was capable of accommodating 8 persons, and was regarded by the Defendant as suitable for the Claimants, coupled, as it was, with an offer of a two-bedroom property for occupation by the rest of the family.[9]On 11 January 2001, the Defendant’s Acting Housing Manager, Rafiqul Hoque, visited Mrs Begum, and discussed their housing situation. As a result, the Defendant discovered that Forid was married and that his wife was pregnant, and that Momota had a baby daughter born in October 2000 but was separated from her husband. Mr Hoque pointed out the shortage of large accommodation units in the Borough and the long waiting list for them. He stated in his letter to Mrs Begum dated 29 January 2001 that she had agreed that the family should be split for housing as follows: a main application to include Mrs Begum, Momota, Amina, Nasima, Fatima and Momota’s daughter; a second application to include Anam Ali, Amzad Ali and Morid Ali; and a third application for Forid and his wife. He also stated that Mrs Begum had agreed to view a 4-bedroom property (presumably the Springboard Housing Association property) for those included in the main application.[10]On 18 January 2001 the Claimants’ solicitors wrote to the Defendant an admirably comprehensive letter setting out the family’s difficulties and stating that their main problems were the unsuitability of their housing and the inadequacy of services to meet the family’s needs. The family rejected the property referred to by Mr Haque because the family wanted to live all together, and wished to have two adjacent four-bedroom properties (which would be capable of accommodating 16 persons, as against the 15 persons then in the extended family). The Claimants’ solicitors called on the Defendant to carry out comprehensive assessments of the family’s needs for community care and other services, and of their housing needs.[11]By letter dated 13 February 2001, the Defendant informed Mrs Begum that it would carry out a total of 13 assessments of the needs of her and her family in order to decide what decisions should be made in relation to them. The Defendant subsequently informed the Defendant’s solicitors that the target date for the completion of the assessments was 1 June 2001.[12]In April 2001, the minimum period for which the Defendant was under a duty to provide accommodation to the family under s. 193 expired. However, the Defendant has exercised its power under s. 194 to continue to secure their accommodation, and proposes to continue to do so.[13]By 6 July 2001, only 9 assessments had been completed. Copies of them were sent to the Claimants’ solicitors by letter of that date. In that letter, the Defendant explained that there had been difficulties in meeting the family, due to their failing to keep appointments, and that conflicting information was being given by the family.[14]Further assessments, relating to Mrs Begum and Forid Ali, were sent to the Claimants’ solicitors on 10 September 2001.[15]On 27 September 2001, LABO Housing Association served notices to quit both 141 and 143 Knapp Road. The Association proposes to purchase the properties from the Defendant and to refurbish them. It is common ground that the Association is entitled to possession, and will in due course (i.e., within 2 to 3 months) obtain possession as a result of its pending proceedings in the County Court.[16]On 3 October 2001 the Claimants’ solicitors sent a detailed letter before action to the Defendant, complaining about the outstanding assessment, alleging that assessments already carried out were defective, and stating that the family’s housing situation was now critical. The letter stated that LABO Housing Association were willing to offer both 141 and 143 Knapp Road to the Begum family after refurbishment, but needed the Defendant to nominate the family to that accommodation so that the refurbishment work could include the necessary work to make the properties suitable for Mrs Begum and Nashima. It was stated that the Claimants’ preference was to remain in Knapp Road.[17]The Defendant did not respond to the letter of 3 October 2001. As a result, these proceedings were begun on 8 November 2001. The claim form seeks mandatory orders directing the Defendant to nominate the family to LABO Housing Association for permanent housing, to secure accommodation for the Claimants which is as far as possible suitable for them pending the refurbishment of 141 and 143 Knapp Road, and to complete lawful assessments and care plans for the Claimants, taking into account the needs of the other family members and their carers.[18]The Defendant’s evidence was eventually served on 15 and 19 March 2002. Its evidence included a Health Assessment of Housing Needs for Mrs Begum and her family made by Mr Ian Cruickshank, the Defendant’s Senior Health Advisor to Housing, and dated 15 March 2002. It was evidently produced under the pressure of the hearing date of these proceedings. Mr Cruickshank took into account 36 documents, listed in his assessment, including letters from the family’s General Practitioner dated 13 March 2002 (the source of the information referred to in paragraph 4 above), and assessments made by others of the Defendant’s staff on the needs of family members. He recommended that Mrs Begum required ground floor accommodation, to wheelchair standard A, with a bathroom and toilet on the ground floor, with full central heating, and a garden. He proposed that the family should be rehoused in 3 units: one for Forid Ali and his wife and children, one for Mored Ali, Fatima Begum and Amzad Ali, and one for the remainder, including of course the Claimants. Discussion[19]The live issues between the parties have been significantly narrowed as a result of the service of the Defendant’s evidence, and the discussion of the issues in and doubtless outside Court. It is apparent that there is an appreciation on each side of the practical difficulties for the other. The Defendant accepts that the Claimants require significant family support, which could best be provided if the family were housed in a large unit or in units close to each other. There was an issue as to whether the Defendant ever considered that it had fulfilled its duty under section 193, but it accepts that Knapp Road is not suitable for the Claimants, even applying the attenuated test appropriate under Part 7 of the Act (see R v Haringey LBC, ex p Karaman (1996) 29 HLR 367). As mentioned above, the Defendant does not suggest that it wishes to terminate its accommodation of the family under section 194. The points allocated to the family under the Defendant’s Part 6 allocations policy, on the basis of Mr Cruickshank’s recommendations, have not been disputed. It is evident that accommodation will be required for the family when LABO Housing Association obtains possession, and that that accommodation must be suitable for them.[20]On their part, the Claimants’ advisors recognise that there is a serious shortage of large units of accommodation available to the Defendant. The evidence is that in the year ended 31 December 2001, the Defendant had 1,824 applicants for four-bedroom or larger accommodation on its waiting list, while only 104 such properties became available. The Claimants recognise that the family is liable to be split. How that split should be arranged is not agreed. The family object to Fatima living with her brothers (as recommended by Mr Cruickshank), and having heard this objection put in Court, the Defendant accepted it. There is however still no consensus on whether Forid Ali and his family should be housed independently of the Claimants. Parenthetically, I suspect that agreement on the split may depend on the accommodation on offer.[21]Furthermore, Ms Markus accepted that the Court would not make an order directing the Defendant to nominate the Claimants to any particular property. There however remains an issue as to whether Knapp Road could be made suitable for the Claimants and an issue as to whether the Defendant has lawfully considered the position of the Claimants in relation to Knapp Road. In addition, Ms Markus submitted that Mr Cruickshank’s assessment was flawed because he had substantially relied on the information provided by the family’s General Practitioner in his letters dated 13 March 2002 that conflicted with the family’s evidence, and that that information had not been put to the family for their comments. Ms Markus submitted that if the family had had the opportunity of commenting on that information, they could have corrected errors in that information.[22]In the light of the decision of the Court of Appeal in Wahid [2002] EWCA Civ 287 , Ms Markus did not press a claim under s. 21 of the National Assistance Act 1948, although she did not formally concede that the Claimants had no such claim. For his part, Mr Rutledge did not pursue the argument that the Claimants had failed to pursue an alternative remedy, namely an appeal to the County Court under section 204.[23]These movements in the position of both sides during the course of the hearing satisfy me that this is a case which would have benefited, and indeed would still benefit, from ADR: c.f. Cowl v Plymouth City Council [2001] EWCA Civ 1935 . The basic problems in this case are on the one hand a large extended family with considerable medical problems and disabilities which are coped with mainly by family support (and by their living with a standard of accommodation which is inappropriate to their needs), with a need for special and extensive accommodation; and, on the other, one of the poorest local authorities in the country with inadequate housing resources, particularly of the kind required by the Claimants. A perfect solution is unlikely: any solution is likely to require compromise on the part of the Claimants.[24]Ms Markus put into writing the relief she sought as a result of the latest evidence and the discussion of the legal issues. The Claimants now seek the following orders:(a) A declaration that, to date, the Defendant has not discharged its duty to the Claimants under s. 193 nor lawfully discharged its functions under s. 194.(b) A mandatory order directing the Defendant: (i) To secure suitable accommodation for the Claimants within a period to be fixed by the Court. (ii) To complete lawful assessments and care plans of the Claimants, taking into account the needs of the other family members and their carers; (iii) To give lawful consideration whether to nominate the Claimants and the other family members living with them to LABO Housing Association for permanent housing at 141 and 143 Knapp Road. (iv) If the Defendant does decide to nominate the Claimants to LABO, to secure accommodation for the Claimants which, as far as possible, is suitable for them and the other members of the family, pending the refurbishment of 141/143 Knapp Road; (v) Further or other relief.[25]Mr Rutledge submitted that no declaration of the kind suggested by Ms Markus is necessary, given that the Defendant accepts that the Claimants’ present accommodation is unsuitable. I agree. Furthermore, consideration of the correspondence in this case shows that while the Defendant may have been dilatory in completing its assessments of the Claimants and the members of the family, it has not been unsympathetic to their needs. I refer to Mr Hoque’s letter of 19 January 2001, referred to above, which offered inspection of a 4-bedroom property with no suggestion that the offer of that accommodation would terminate the Defendant’s Part 7 duty; and to his letter of 16 February 2001, suggesting the 4-bedroom property and a nearby 2-bedroom flat for Momota (albeit that a very speedy decision was required from the family), again with no suggestion that the Defendant would consider its Part 7 duty at an end if the offers were not accepted; and the Defendant’s solicitors letter of 5 March 2001, expressly confirming that if the family rejected the property then offered the Defendant would not consider that its Part 7 duty was at an end. I also bear in mind the unresolved issues whether and to what extent the Defendant’s assessments were delayed by difficulties in gaining access to the family and their provision of inconsistent information. For all these reasons, I consider that a declaration at this stage is inappropriate. I would add, however, that, as Ms Markus submitted, it is clear that the Defendant has never made a decision that the Knapp Road accommodation is suitable for the Claimants. It has not therefore fulfilled its s. 193 duty or lawfully exercised its power under s. 194 by providing that accommodation: R v Lambeth LBC, ex p Ekpo-Wedderman (1998) 31 HLR 498, 508; R v Newham LBC, ex p Ojuri (No. 3) (1998) 31 HLR 452. The offers made by the Defendant of alternative accommodation are consistent with this conclusion.[26]For similar reasons, I have not decided to make a mandatory order immediately that the Defendant secure suitable accommodation for the Claimants and the other members of the family. Before making any such order, I should wish to have further evidence as to the time within which the Defendant could sensibly and lawfully provide such accommodation. I bear in mind the assurance of Mrs Hayes that “the Defendant aims to identify suitable accommodation and to move the family as soon as possible”. However, I do not propose to leave the position in abeyance. I shall consider the submissions of the parties after this judgment is handed down. If no order is then made, I propose to adjourn the application for this order. The Claimants will shortly be required to vacate Knapp Road, and at that point, if it has not already done so, the Defendant will provide so far as possible suitable accommodation. If no order is made when this judgment is handed down, I propose to give leave for the Claimant to apply for a mandatory order on, I suggest, 4 working days’ notice. That will enable the matter to be brought back before the Court well before Knapp Road is vacated, and will give the Defendant the opportunity to put in further evidence if by then no solution has been found.[27]As to the order referred to at paragraph 24(b)(iii) above, the Defendant gave a number of reasons why it was not possible for it to accede to the Claimants’ request that they be nominated to Knapp Road. First, that the current development proposals for the properties would not meet the family’s requirements. Secondly, and more importantly, it is contended that the properties could not be made suitable for Nashima, because of the narrowness of the hall and the doorways in relation to the size of wheelchair needed by Nashima. There is an issue between the parties as to whether this assessment is correct. It may be that works could be carried out that would make the properties suitable, but those works would certainly be more costly than the works required to refurbish the properties for families without the Claimants’ special needs, and it is not normally for this Court to direct a public authority as to the allocation of its inevitably scarce resources as between the Claimants and other families in need. In addition, earmarking Knapp Road for the Claimants would involve providing them with temporary accommodation pending the completion of the works to the properties, and the Court cannot determine whether that 2-stage provision of accommodation would be a proper use of the Defendant’s resources.[28]The third reason put forward by the Defendant is that no formal decision has yet been made by it to sell Knapp Road to LABO. However, it is clear that in all likelihood the decision is a formality. This point could be catered for by an appropriate qualification to the Court’s order, and I do not consider that it would be a substantial objection to an order if one were otherwise appropriate.[29]The fourth reason, like the second, is more substantial. The Defendant must allocate its properties or make nominations in accordance with its published letting policy: s. 167(8) of the Act. The Defendant contends that it cannot give an assurance in advance that a particular property will be allocated to a particular applicant until that property is available, at which point it must operate its policy. Susan Hayes, the Rehousing Manager in the Defendant’s Homeless Services, stated that the Defendant makes allocations and nominations in strict date order so that it fairly applies its policy. Ms Markus criticised this statement as displaying an unnecessary and indeed unlawful formulaic approach to the requirements of s. 167(8), which ignored the residual discretion of a local housing authority (see R v Islington LBC, ex p Reilly and Mannix (1999) 31 HLR 651). Be that as it may, I am satisfied that only in exceptional circumstances, if at all, may a local authority lawfully earmark a property for a particular applicant on its waiting list before that property is allocated. It must apply its policy, and exercise any residual discretion, when it allocates the accommodation in question, not before. There is otherwise a risk that when the accommodation is allocated, there will be someone who has priority according to the allocation scheme over the person for whom the property has been earmarked. A local housing authority cannot allocate housing accommodation unless it holds that accommodation or is able to nominate a person to be the tenant of accommodation held by another person: s. 159(2). The Defendant owns but does not hold Knapp Road, in that it is let to LABO, and is not presently in a position to nominate anyone to the refurbished Knapp Road properties. A homeless person to whom a duty is owed under s. 193 or in relation to whom a local authority exercises its power under s. 194, like an applicant on a local authority housing list, has no right to be allocated any particular accommodation. The duty of the local authority under Part 7 of the Act is to provide suitable accommodation, not any particular accommodation: c.f. the judgment of the Court of Appeal when refusing leave to appeal in R v London Borough of Enfield ex p Hunwicks (unreported, 24 May 2000). Under Part 6 of the Act, the authority normally allocates “housing accommodation appropriate to his needs”: s. 166(1)(b). The same principle dictates that there should not be an order of the kind referred to in paragraph 24(b)(iii) above, which would indicate that the Claimants have some kind of entitlement to, or preferential position in relation to, Knapp Road.[30]In these circumstances I do not have to decide at the present time whether, if Knapp Road were now available for nomination by the Defendant, it could lawfully nominate the Claimants to it, or whether the Defendant is unlawfully failing to exercise its residual discretion. These issues arose as a result of the evidence of the Defendant served only a few days before the hearing before me, and I am not satisfied that they have been adequately explored in the evidence before me.[31]For the above reasons, I shall not make a mandatory order requiring the Defendant to give consideration to the nomination of the Claimants to Knapp Road. It also follows that there should not be any order for the provision of accommodation pending the completion of works to Knapp Road.[32]The remaining issue is whether the Defendant should be required to make a new Health Assessment of Housing Needs, or to review Mr Cruickshank’s assessment in the light of additional information provided by the Claimants. As mentioned above, the substance of the Claimants’ complaint is that the Defendant did not seek their comments on the information provided by their General Practitioner, and that to this extent the Defendant acted unfairly and reached incorrect conclusions.[33]As I stated above, Mr Cruickshank considered 36 documents in order to make his recommendations. I have considerable sympathy, and indeed admiration, for him and his work. The authorities show that it is not every item of evidence or information that has to be put to a claimant in circumstances such as the present. In Reynolds v Sevenoaks DC (1989) 22 HLR 250, the Court of Appeal stated that “what we have to decide is whether … it is likely that (it) would have had any decisive effect, individually or collectively, on the council’s decision”. I was also referred to the well-known statement of Lord Brightman in R v Hillingdon LBC, ex p Puhlhofer [1986] 484, 518, and to that of Schiemann J in R v Nottingham County Council, ex p Costello (1989) 21 HLR 301:
“A council which makes numerous inquiries can, in my judgment, only be attacked for failing to make one more if it failed to make an inquiry that no reasonable Council could have failed to regard as necessary.”
Ms Markus referred me to the statement of Simon Brown J in R v Gravesham Borough Council, ex p Winchester (1986) 18 HLR 208, 214-215:
“The burden lies upon the local authority to make appropriate inquiries … in a caring and sympathetic way… These enquiries should be pursued rigorously and fairly albeit the authority are not under a duty to conduct detailed CID-type enquiries … The applicant must be given an opportunity to explain matters which the local authority is minded to regard as weighing substantially against him.”
[34]Those authorities were concerned in the main with the question whether the local authority had lawfully concluded that an applicant was intentionally homeless. The real issue in this case will be whether accommodation offered by a local authority to the Claimants will be suitable for them and those who may reasonably be expected to reside with them. The question before me is not whether the Defendant made adequate inquiries of third persons for this purpose. Indeed, it would be difficult to assert that the Defendant failed to make any such inquiry that any reasonable authority would have made. The point is rather whether, when inquiries of third persons yield significant information inconsistent with that provided by the applicant, which will substantially affect the decision of the local authority, the local authority must put that information to the applicant and give him an opportunity to comment on it. In my judgment, a local authority is under such a duty. It is supported by principles of fairness and principles of good administration. Such a duty is suggested by the statement of Simon Brown J referred to in the previous paragraph. It is also suggested by the decision of the Court of Appeal in London Borough of Tower Hamlets v Runa Begum [2002] EWCA Civ 239 , in which a decision taken by a local authority on an internal review under s. 202 as to whether accommodation was suitable for an applicant was held to be a determination of her civil rights for the purposes of Article 6(1). While such a decision is subject to review on appeal to the County Court, the review is as to law only, and further evidence that was not before the local authority will not necessarily be admitted. It is therefore important that the local authority should have had before it the applicant’s responses to significant information obtained by the local authority which is inconsistent with that provided by the applicant, so that those responses are similarly available to the County Court in the event of an appeal.[35]The information provided by the Claimants’ General Practitioner is significant, and has materially affected Mr Cruickshank’s conclusions. It follows that the Defendant may not lawfully finally decide whether any particular accommodation is suitable for the Claimants without taking into account their responses, now in evidence, to their General Practitioner’s letters.[36]I would however mention that it is possible that if Dr Okun’s letters had not been received so close to the date for service of the Defendant’s evidence, the Claimants’ comments would have been sought and considered. Time was very short: the letters were faxed to the Defendant on 13 March 2002, Mr Cruickshank completed his assessment on 15 March and the Defendant’s evidence served on the same day. In this connection it is to be noted that the Defendant accepted, during the course of the hearing, the family’s objection to Fatima residing alone with her brothers Mored Ali and Azad Ali, as had been proposed by the Defendant in its evidence.[37]I shall hear counsel as to the orders to be made on the basis of my judgment. *************** MR JUSTICE STANLEY BURNTON: My judgment has been distributed in draft. It sets out my findings and decision. I am grateful to counsel for their helpful corrections or suggested corrections. We are going to be a few minutes, are we not? MS MARKUS: My Lord, we are. There is actually one additional correction. I am very sorry for not having been able to notify your Lordship about it, but I only noticed it this morning. I have been given an unwelcome gender change in paragraph 21 -- MR JUSTICE STANLEY BURNTON: Is that all? MS MARKUS: -- of the judgment. MR JUSTICE STANLEY BURNTON: I do apologise for that. MS MARKUS: About halfway down. MR

JUSTICE STANLEY BURNTON:

"Mr Markus", how is that possible? MS MARKUS: Yes. MR JUSTICE STANLEY BURNTON: Are you Ms Markus throughout this judgment? MS MARKUS: I am throughout the judgment, which is how I describe myself. MR JUSTICE STANLEY BURNTON: Well, there are copies of the judgment available for the press. Perhaps they could take note of that correction, and if the floppy disk as eventually produced will have that correction. There we are. There was nothing intended by that. MS MARKUS: My Lord, I do appreciate that. MR JUSTICE STANLEY BURNTON: Yes. MS MARKUS: My Lord, you will have been bombarded with a flurry of papers by fax or e-mail over the last 24 hours. MR JUSTICE STANLEY BURNTON: Yes. MS MARKUS: What you should have is a proposed draft order sent by the defendant and a proposed draft order sent by the claimants. Mine is marked claimants' version; the other is the defendant's version. MR JUSTICE STANLEY BURNTON: Yes. MS MARKUS: There are submissions, short submissions, which should act by way of explanation as to my proposed draft and separate submissions by myself on costs, and there is a skeleton argument from Tower Hamlets which relates to both the relief, the draft order, and the costs question. My Lord, as far as the draft order is concerned, your Lordship will see that the parties are very close as to the substantive steps that need to take place. MR JUSTICE STANLEY BURNTON: Yes. MS MARKUS: And, in fact, I think the parties are in complete agreement. The only difference is as to how that should be recorded in the draft order. MR JUSTICE STANLEY BURNTON: So the accepting is identical in both orders, is that right, the second paragraph? MS MARKUS: "
Upon accepting that", yes. MR JUSTICE STANLEY BURNTON: Yes. And the undertaking is identical -- no, it is not identical. MS MARKUS: It is not identical, my Lord. The proposal by the defendant in the draft order is that the service decision will be taken after carrying out a Children Act assessment. In my draft I actually set out by way of a schedule a number of steps, not only the Children Act assessments, that need to take place. My Lord, the defendant has agreed in correspondence that all those steps will take place, and the only question is whether they should be recorded in the order. And, my Lord, my submission is that for the sake of clarity, all the steps that are agreed -- not only one of those, i.e. the Children Act assessment -- should be recorded in the order or by way of attachment to it. My Lord, you can see the agreement to the steps taking place in the correspondence attached to the witness statement of Agnes Adrian, which I hope your Lordship has as well. MR JUSTICE STANLEY BURNTON: Yes. MS MARKUS: And you will see in the letter of 25th April from my solicitors to the defendant, on the second page there are four steps that we ask the Authority to take prior to making a service decision. MR JUSTICE STANLEY BURNTON: Yes. MS MARKUS: And that is at the top of the second page of our letter, and in Tower Hamlets' letter which follows on the bottom of the first page. MR JUSTICE STANLEY BURNTON: You want me to look at the correspondence now, do you? MS MARKUS: Yes, my Lord, please. It is attached to the statement of Agnes Adrian. MR JUSTICE STANLEY BURNTON: Yes. MS MARKUS: So, my Lord, I am looking first at the letter of 25th April from my solicitors to Tower Hamlets, and on the second page, at the top of the page, you will see four numbered points which are the steps that we -- MR JUSTICE STANLEY BURNTON: Expect. Not request or ask, expect. MS MARKUS: My Lord, yes. My Lord, we use the word "expect" because -- it is our submission those are steps that have to follow if the Authority is to make a proper assessment. MR JUSTICE STANLEY BURNTON: Yes. There we are. MS MARKUS: My Lord, the steps are set out there, and those are agreed to by the defendant in the first page of its letter that follows in the bundle. MR JUSTICE STANLEY BURNTON: (1) is agreed, the need for accommodation. MS MARKUS: My Lord, yes. Clearly, if the decision is that the family should be housed together simply on the basis of Dr Okun's further report, then matters would stop there. But Dr Okun's further report has now been sent to the defendant, and I understand that the defendant does not propose that matters should stop there. MR JUSTICE STANLEY BURNTON: Yes. MS MARKUS: So, my Lord, my schedule simply sets out the four steps that it is agreed between the parties ought to take place. The defendant's draft simply sets out one of those steps, the Children Act assessment. As I understand it, there is no dispute between the parties as to what actually should happen. It is simply a question of recording it accurately, and in my submission it is sensible so that there can be no room for dispute. MR JUSTICE STANLEY BURNTON: It goes beyond recording what has been agreed, because you are asking for an undertaking in those terms. It is one thing for the judgment to record what has been agreed, another thing for an undertaking to be given. MS MARKUS: My Lord, yes. Well, my Lord, the defendant has offered an undertaking to carry out the Children Act assessment. MR JUSTICE STANLEY BURNTON: Yes. MS MARKUS: The defendant has agreed -- MR JUSTICE STANLEY BURNTON: Yes. MS MARKUS: -- to carry out -- MR JUSTICE STANLEY BURNTON: But the order is phrased as imposing -- as extracting an undertaking. MS MARKUS: My Lord, that is right, and as I understand it, I think that the -- I am not sure whether the defendant is happy now to give the undertaking in the terms that I have asked. If it is not, then I would ask that that becomes part of the order. MR JUSTICE STANLEY BURNTON: In other words, I should -- if no undertaking is forthcoming, I should actually grant an injunction. MS MARKUS: My Lord, yes, should order the defendant to carry out those steps because, my Lord, your Lordship has found in the judgment that appropriate inquiries have to be made of the relevant parties -- MR JUSTICE STANLEY BURNTON: Yes. MS MARKUS: -- in order to decide how to -- whether, and if so, how to split the family. My Lord, it has been left at large what those steps should be. The defendant now agrees that the appropriate steps are the steps that are set out in the exchange of correspondence. MR JUSTICE STANLEY BURNTON: Let me hear what Mr Rutledge has to say. Yes, Mr Rutledge. MR RUTLEDGE: My Lord, in my submission it is unnecessary to record these. It is set out in an open letter. Tower Hamlets will stand by that. I do not think it is a matter of procedure to have instructions to offer undertakings. There is a protocol for obtaining those instructions. I have instructions to offer undertakings in the form as appear in my draft, which meets the requirements of the case. But so far as these other matters are concerned, there is an open letter. There is no question in this case that Tower Hamlets does not stand by matters that it sets out in correspondence, and that certainly is the spirit this litigation should continue. There is just simply no need for it. It clutters the order. The order should be as simple as possible and reflect the judgment. MS MARKUS: My Lord, in light of what Mr Rutledge says, I am happy that that part of the order should reflect Mr Rutledge's draft. We have the commitment in the correspondence. MR JUSTICE STANLEY BURNTON: Good. MS MARKUS: So I will not press that any further. My Lord, could I then just go on to the orders. MR JUSTICE STANLEY BURNTON: Yes. MS MARKUS: If one compares the two drafts -- MR JUSTICE STANLEY BURNTON: (1) is common. MS MARKUS: (1) is common, although in fact, my Lord, I think it is probably correct that on the second line "ground for" should actually read "heads of" relief, because those matters can then -- MR JUSTICE STANLEY BURNTON: Yes, they are heads, not grounds. Well, it was relief, was it not? MS MARKUS: Yes. MR JUSTICE STANLEY BURNTON: They were not grounds for. To include -- is it not claims for relief? MS MARKUS: Claims for relief, yes. As far as paragraph (2) is concerned, the defendant -- I propose that no order should be made on our claim for a declaration that the defendant has not discharged its duty under Part 7 of the Housing Act. Your Lordship will see that the defendant proposes that that claim should be dismissed. My Lord, it is my submission that no order properly reflects your Lordship's judgment. MR JUSTICE STANLEY BURNTON: I am with you on that. MS MARKUS: My Lord, thank you. MR JUSTICE STANLEY BURNTON: Subject to what Mr Rutledge may say. MS MARKUS: My Lord, yes. As far as paragraph (3) is concerned, we are agreed, although I have increased the estimate to two hours rather than one hour, because it is my submission if we get that far -- and of course we hope that we will not -- there may be substantial evidence about steps that have been taken, the difficulties facing the defendant, difficulties facing the claimants and so on. MR JUSTICE STANLEY BURNTON: You are also likely to come before a different judge, frankly. MS MARKUS: Well, My Lord, the other question that I wanted to canvass with your Lordship was whether it is realistic that the matter should be reserved to yourself, and I suppose it partly depends on whether you are going to actually be available over the next few months, because I know that obviously High Court Judges have many commitments. MR JUSTICE STANLEY BURNTON: I am out of the Administrative Court at the end of May. MS MARKUS: But, my Lord, does that mean that it could not come before yourself on a -- just for the purposes of this case? It clearly would be very desirable, in my submission -- I do not know if Mr Rutledge agrees with this -- that -- MR JUSTICE STANLEY BURNTON: It really depends where I am sitting at the end of the term. The last few weeks of July I am in the Court of Appeal Criminal Division, and it is quite difficult to extract -- it may be very difficult to extract me for two hours. Thereby all means you can put in the order reserved if available or if possible -- MS MARKUS: My Lord, yes. MR JUSTICE STANLEY BURNTON: -- to myself, but beyond that I cannot go. And at the moment it looks as if in the first half of the autumn term I shall be on circuit, so -- although I would be delighted to see you in Birmingham. MS MARKUS: And I am sure we would love to go. MR JUSTICE STANLEY BURNTON: Well, there is a good concert hall. MS MARKUS: Is there? My Lord, that is very helpful. MR JUSTICE STANLEY BURNTON: Beyond that, I do see the sense of my dealing with it, and if I am simply sitting in Queen's Bench, then I am sure arrangements can be made or at least attempted. But if I am in Court of Appeal Criminal Division, it becomes much more difficult, unless it is a reading day, I suppose. MS MARKUS: My Lord, yes. And, my Lord, it may be depending on the urgency of any need for it to come back before your Lordship -- MR JUSTICE STANLEY BURNTON: I would like to think -- MS MARKUS: -- so we can be more or less flexible. MR JUSTICE STANLEY BURNTON: I would like to think that everything is going to be agreed and this case will go into history as one where agreement has been reached, but if not, you will just have to contact my clerk and the Administrative Court Office and see what can be arranged. MS MARKUS: My Lord, we have not sought a mandatory order today or indeed taken advantage of -- if that is the right word to use -- of the suggestion in your judgment that we might reserve a right to seek a mandatory order on four days' notice because we do not think that serves the parties well at this stage, and we really do hope that the matter can be resolved in a much more orderly manner than that. MR JUSTICE STANLEY BURNTON: I am glad to hear that. That was put in just in case there was a possession order about to be executed and there was nowhere to go, nothing had been done. That would be in extremis, and in extremis I did want you to be able to come back quickly. MS MARKUS: My Lord, I hope that the liberty to apply which both Mr Rutledge and I propose will be sufficient to deal with those extreme circumstances if they arise, but we certainly do not envisage it being likely that such an extreme situation will arise, at least within the next three months. MR JUSTICE STANLEY BURNTON: I am sure Mr Rutledge does not either and Tower Hamlets do not either, so let us hope it is unnecessary. MS MARKUS: My Lord, yes. My Lord, paragraph (4) we are agreed on. MR JUSTICE STANLEY BURNTON: Yes. MS MARKUS: Paragraph (5) we are not. This is the question of the nomination. MR JUSTICE STANLEY BURNTON: Subject to what you want to say, I am against you on that. MS MARKUS: My Lord, can I just -- I have set out my points very briefly in my outline submissions and there is little more I can say on that, but the point is this: that your judgment records that it would not be appropriate for you to make an order at this stage. MR JUSTICE STANLEY BURNTON: That is because at this stage, as I read the statute the local authority could not even allocate. It can only allocate if it either has the property or -- I cannot remember what the statute says now. I quoted it in my judgment. MS MARKUS: My Lord, yes, but as your Lordship noted, that is likely to be a temporary obstacle which on the evidence will be resolved very shortly, and all we asked for was an order that the defendant lawfully consider the nomination. MR JUSTICE STANLEY BURNTON: Let me interrupt you. I consider that in general such orders are inappropriate because they suggest a right, and maybe an attenuated right, to a particular property, and that is not what one has under the Housing Act. MS MARKUS: My Lord, I hope I made it clear in my submissions during the substantive hearing that we were not claiming a right to the property, but that the Local Authority should exercise its residual discretion, which may involve it focusing in particular on a certain property because of the extreme difficulties facing the Authority in housing this family, without in any way suggesting that the Authority would have to accommodate the family. We concede that the Authority might lawfully reach a decision not to accommodate the family there if it took account of all the relevant factors. But, my Lord, of course one of the real sticking points in this case, and one of the points your Lordship found was a substantial sticking point rather than a temporary or technical sticking point, was the real dispute as to whether this property could be adapted for wheelchair use for Nashima, and that was something that, as your Lordship found, could not be resolved satisfactorily on the evidence at the time as it came before your Lordship. MR JUSTICE STANLEY BURNTON: Not only whether it can be physically but whether it is an appropriate allocation of resources -- MS MARKUS: Yes. MR JUSTICE STANLEY BURNTON: -- for the money -- for those resources to be spent in that way. MS MARKUS: And, my Lord, of course that issue and the defendant's view that the property (a) might not be adaptable or (b) it may be an inappropriate use of resources was one that was put very late in the day, and it was for that reason we had to respond even later in the day and therefore the issues ultimately were inadequately resolved. Your Lordship was faced with a conflict of views which of course the Court could not resolve at the hearing. My Lord, in those circumstances, your Lordship has ended up in a position where you have been unable to make an order in regard to that claim for relief, but your Lordship has not come to a definitive finding that such an order would be wrong in principle in any circumstances or indeed in these circumstances were the evidence to be more thoroughly explored. In my submission, the appropriate order in that case would be no order. This part of the claim is a claim that effectively the claimant has neither won nor lost but -- MR JUSTICE STANLEY BURNTON: The claimants may yet be housed there of course. Nothing I say in the judgment is intended to preclude the possibility of their being housed there if the defendant considers it appropriate. MS MARKUS: My Lord, indeed. The nomination question is now simply, in my submission, an issue that falls to be considered along with the defendant's determination as to how to discharge its duty to the claimants, and nothing in your judgment precludes a consideration of nomination to these properties or to any other. My Lord, even more so, it is my submission that therefore the appropriate order would be no order on that part of the claim. It is a matter that is left for consideration for another day. Your Lordship was not able finally to resolve the merits of our claim in that respect because of the inadequate exploring on the evidence, which certainly was not my clients' fault. MR JUSTICE STANLEY BURNTON: How could I resolve on the evidence whether it is appropriate for the Local Authority to spend money on converting that property rather than house them elsewhere? MS MARKUS: My Lord, what we ask -- MR JUSTICE STANLEY BURNTON: It is a resources question, which the courts very rarely embark upon. MS MARKUS: Well, our submission of course was that the Local Authority had not properly even considered those questions. We were not -- MR JUSTICE STANLEY BURNTON: What is the practical difference between dismiss and no order in these circumstances? MS MARKUS: Well, only that it, in my submission, properly reflects the outcome of the case, and to the extent that when it comes to the question of costs, there is a debate about who has won and who has lost. MR JUSTICE STANLEY BURNTON: That is what I thought. I thought this was all leading up to an argument about costs. Is that the only material difference? MS MARKUS: My Lord, it is right in principle that the judgment of the Court should properly reflect the nature of the judgment. MR JUSTICE STANLEY BURNTON: But the fact remains that when proceedings were started, the defendant did not even have the legal power to allocate. MS MARKUS: Well, my Lord, we did not -- we -- MR JUSTICE STANLEY BURNTON: You may not have known that, but that is the position. MS MARKUS: My Lord, yes. The defendant could have told us an awful lot earlier. They could have told us on 3rd October last year when we first raised the issue and they did not. Even more emphasis -- MR JUSTICE STANLEY BURNTON: But that is the fact of the matter. If they said then, look, we do not own this property -- well, they do -- MS MARKUS: We cannot do it. MR JUSTICE STANLEY BURNTON: We cannot allocate because this is what the statute says -- MS MARKUS: Yes. MR JUSTICE STANLEY BURNTON: -- that would have been the end of it. MS MARKUS: My Lord, that would have been a very different situation and all we could then have done was to have reserved our position on nomination for a future day, hoping that when the defendant did own the property lawfully consider the question. But, my Lord, that was not the position, and that adds emphasis to my submission that it is wrong for the claimants' claim in that respect to stand dismissed when it is proceeded on a basis that was put very clearly to the defendant and the defendant never came back to us and said, hold on a moment. MR JUSTICE STANLEY BURNTON: Eventually they did. I am not sure they even took this point. I think it was a point I took in the judgment. No, they did take the point that it was unlawful to allocate in advance. MS MARKUS: My Lord, as late as 4th February, after permission was granted, my solicitors were writing to the defendant asking them what is the position on the nomination, what is your position, and, my Lord, there was absolutely no response. And in my submission, to follow from that the claim in that respect is dismissed, in other words, that the claimants have lost that claim, rather than that no order has been made because of the fact that circumstances turn out to be entirely different to those that the claimants had realised at the time, is -- MR JUSTICE STANLEY BURNTON: At the time what you sought was an injunction requiring them to allocate the property to your clients. Not just to give lawful consideration but actually to give it to them. MS MARKUS: Yes. My Lord, at the time, as we made it clear to the defendants, we believed that we were at the top of the list and we had no idea that there was any reason why the property should not be allocated, and that was made clear. MR JUSTICE STANLEY BURNTON: Why did you think you were at the top of the list? I do not remember that being said in the correspondence. MS MARKUS: My Lord, well, we had already been allocated for other properties, and we understood that that meant that we were the highest priority for that location, for suitable property. MR JUSTICE STANLEY BURNTON: Under Part 7 or Part 6? MS MARKUS: My Lord, under Part 6. My Lord, we had already been nominated either once or twice, and we understood that that meant -- and both those offers had in fact been withdrawn because they were not suitable. But we understood that that meant that we were top of the list for the next nomination for suitable properties. MR JUSTICE STANLEY BURNTON: Unless someone jumps over you. MS MARKUS: My Lord, indeed, but the defendant could have told us that we were no longer top of the list, and I think that we were not told that until the grounds for resistance which were filed a few days before the hearing, three working days before the hearing. MR JUSTICE STANLEY BURNTON: I have your submissions. MS MARKUS: My Lord, yes. And equally, therefore, it is my submission that no order should be made on (6), because (6) followed from (5). We were only asking for the accommodation pending consideration of a nomination if there was to be further consideration of the nomination. My Lord, (5) and (6) stand or fall together in my submission. MR JUSTICE STANLEY BURNTON: I have your point. MS MARKUS: There is no other -- there are no other issues between us. The only other point -- MR JUSTICE STANLEY BURNTON: There is costs. MS MARKUS: My Lord, except for costs, but -- MR JUSTICE STANLEY BURNTON: Who is asking for appeal? MS MARKUS: I think it would be sensible to deal with costs separately. MR JUSTICE STANLEY BURNTON: Who is asking to appeal? MS MARKUS: My Lord, we are not. MR JUSTICE STANLEY BURNTON: Are you asking to appeal? MR RUTLEDGE: Well, not on the -- not on the order, my Lord. My Lord, no. The only possibility -- MR JUSTICE STANLEY BURNTON: I just wonder, because item (9) here is permission to appeal. MR RUTLEDGE: Yes. It is simply to flag it up as something that has to be considered and disposed of. MR JUSTICE STANLEY BURNTON: What do you say about no order as against dismissal on -- MR RUTLEDGE: Can I just run through my learned friend's draft very, very briefly with my submissions, please. MR JUSTICE STANLEY BURNTON: Yes. MR RUTLEDGE: Paragraph (1), I respectfully agree "claims" is better than "grounds". Paragraph (2), I shall not advance argument to the contrary. MR JUSTICE STANLEY BURNTON: Yes. MR RUTLEDGE: Paragraph (3), I respectfully agree with the reservation subject to your Lordship's availability. Paragraph (4), no comment. MR JUSTICE STANLEY BURNTON: And two hours. MR RUTLEDGE: Two hours, yes. MR JUSTICE STANLEY BURNTON: We can always vary that. MR RUTLEDGE: Yes. MR JUSTICE STANLEY BURNTON: Where is liberty to apply? Oh, there is liberty to apply. Paragraph (4?) MR RUTLEDGE: Paragraph (4), no observations on that. That is agreed in its entirety. MR JUSTICE STANLEY BURNTON: Now we are on (5). MR RUTLEDGE: Yes. It should be dismissed because that was your Lordship's finding. In the judgment he went through my submissions about whether we could do it as a matter of law and found that we could not, certainly not at this stage. It is true that he left open the possibility -- MR JUSTICE STANLEY BURNTON: You could not nominate. MR RUTLEDGE: We could allocate but not nominate. MR JUSTICE STANLEY BURNTON: I did not think you could allocate either. MR RUTLEDGE: I am sorry, my Lord. I misunderstood your Lordship's question. No, we could not. We could not do either at the moment because it is not part of the housing stock. But in any event, it goes beyond that because I think your Lordship accepted my submission based on the Court of Appeal case, the Hunwicks case that I relied upon -- MR JUSTICE STANLEY BURNTON: Yes. MR RUTLEDGE: -- that local authorities cannot earmark properties -- MR JUSTICE STANLEY BURNTON: Yes. MR RUTLEDGE: -- because that is contrary to Part 6. So in my submission, that was an argument that your Lordship has resolved, and the only proper way of expressing your Lordship's judgment is to say that that claim is dismissed. It goes beyond costs because that is a point of principle and this will probably be a reported case and -- well, it is bound to be reported somewhere and relied upon. MR JUSTICE STANLEY BURNTON: Everything is, as far as I am concerned, so one has to be very careful what one says in this court. MR RUTLEDGE: It is likely to be a reported case. MR JUSTICE STANLEY BURNTON: I am sure it will be somewhere in some set of -- if only in the summary I receive daily of yesterday's decisions. MR RUTLEDGE: My Lord -- MR JUSTICE STANLEY BURNTON: That is it, Mr Rutledge, is it? MS MARKUS: Yes. MR JUSTICE STANLEY BURNTON: Thank you. Anything else you want to say? MS MARKUS: No, my Lord, except on the order on liberty to apply, it might be sensible to actually identify the notice. MR JUSTICE STANLEY BURNTON: You have nothing to say in reply, I take it? MS MARKUS: My Lord, I have covered all the points on that. The only other point is on liberty to apply, if it is sensible to put in a certain period of notice. It may be urgent, and I would suggest 48 hours' notice for liberty to apply. MR JUSTICE STANLEY BURNTON: Mr Rutledge, do you say anything about 48 hours' notice? MR RUTLEDGE: No. MR JUSTICE STANLEY BURNTON: All right. That seems to me sensible. As far as the other matters in dispute are concerned, I think that my judgment is more accurately reflected if the claim for consideration of the nomination is dismissed rather than no order being made, and that the same applies to Paragraph (6) in the light of the authorities. That dismissal is not intended to indicate or to imply that it would be in any way inappropriate for the claimant and her extended family to be nominated to 141-143 Knapp Road in due course, assuming that the Local Authority lawfully considered it appropriate to do so. My judgment is in no way intended to foreclose any decision, but for the reasons given in my judgment, an order in these terms was inappropriate when these proceedings began and remained inappropriate when I gave judgment. Costs. MS MARKUS: My Lord, yes. My Lord, you have my written submissions, I hope, on costs. MR JUSTICE STANLEY BURNTON: I have everyone's submissions on costs. Do you wish to add to them? MS MARKUS: My Lord, no. I think there may be matters I want to reply to Mr Rutledge on, but perhaps I should let Mr Rutledge say anything else that he wants to say first. MR RUTLEDGE: In my submission there are three points of principle. Firstly, if your Lordship reminds himself, page 21 of the bundle, of the relief -- MR JUSTICE STANLEY BURNTON: Perhaps I can short circuit this. My present view is there should be no order as to costs. MR RUTLEDGE: I am obliged by that indication. My Lord has seen how I put my case, and I do not think I can assist. MR JUSTICE STANLEY BURNTON: At the moment, Ms Markus, I think this is a paradigm case for no order as to costs. You have succeeded in some respects, not in others. The parties are now co-operating in a way they were not before -- MS MARKUS: Well, my Lord, I do not -- I will not repeat what I have written in some detail in my written submissions, which I know your Lordship has read, but could I just say that the co-operation, in our submission -- which we are very happy that is now taking place -- is taking place because we have had to bring this matter to the court and it has gone this far. And, my Lord, we wrote on 3rd October a letter that set out very clearly what the claimants' needs were in respect of the defendant discharging their legal obligations in terms of housing this family, and, my Lord, there was no reply. The defendant -- a claim was issued. The acknowledgment of service denied every element of the claim. There was no further -- no evidence put in by the defendant; no attempt by the defendant in any way whatsoever to take matters forward outside of litigation, and that has only started to move ahead when the defendants were facing a hearing which the defendants tried to get adjourned and could not get adjourned, the hearing before your Lordship at the end of March. My Lord, the indications from what has taken place up to that point are that the claimants would still be attempting to get the defendants to properly address their acute housing needs and the defendant's clear duties, which the defendant denied that it had any obligation to act upon because the defendant's position was that it had discharged its duty to date. So in my submission, the claimants ought to receive at least a portion of their costs, if not all -- my primary submission is all -- to reflect the fact that they have been put in a position of having to come to court to resolve this matter. MR JUSTICE STANLEY BURNTON: Mr Rutledge, what do you say about a proportion of costs? Well, what proportion do you say? MS MARKUS: Well, my Lord, I say that taking a broad approach, if we are not to get all of our costs, then we should be given 75 per cent of our costs, the reduction to reflect the fact that (a) we did not pursue the National Assistance Act claim, although, as I have already explained, my submission is that added very insignificantly to the costs actually incurred; and secondly, to reflect the fact that we did not succeed on the nomination claim. But, my Lord, although the nomination argument took up a considerable amount of the time of the Court, my submission is that a large part of that was caused by the fact that the defendant came back so late in the day on its position on nomination. So, my Lord, taking a broad approach, my submission would be that 75 per cent would fairly reflect, if your Lordship found that there was any reason not to order the full amount, would fairly reflect the true position. MR RUTLEDGE: In my submission, any order for costs, even a proportion of the costs, would be contrary to principle and manifestly unfair. Your Lordship has the principles in mind. On the pleaded case Tower Hamlets has succeeded. My learned friend says that Tower Hamlets denied everything. Well, on your Lordship's finding, it was entitled to deny everything. The main concern from Tower Hamlets' point of view was a claim for a mandatory order and an injunction requiring Tower Hamlets to nominate this family to a particular property. That was a matter of great importance for the Local Authority. We came before that issue; we won that issue; costs follow the event. The only reason that was not pursued was that my learned friend, during the course of the hearing, withdrew it and modified it with the nomination issue, on which we have succeeded. And thirdly, insofar as the claims have any relief, they have that relief arising out of amended heads of relief. And I have handed up to your Lordship an authority which sets out the general principle, Beoco Ltd v Alfa Laval Co Ltd [1995] QB 137 , and if I could simply refer your Lordship to page 154, because the principle, it is a principle of general application. It is a judgment Stuart-Smith LJ:
"In my judgment, the judge erred in principle and his order for costs is so manifestly unfair to the first defendant that he cannot have exercised his discretion judicially. As a general rule, where a plaintiff makes a late amendment as here, which substantially alters the case the defendant has to meet and without which the action will fail, the defendant is entitled to the costs of the action down to the date of the amendment. There may, of course, be special reasons why this general rule should not be applied."
And there is reference to the Kaines (UK) Ltd v Osterreichische Warrenhandelsgesellschaft case -- if that is pronounced correctly -- where the judge was satisfied that even if the amendment had been made earlier, the action would have been vigorously resisted. The judge disbelieved the defendant's witnesses and the plaintiff received substantial damages. So the principle is where they only get home because of a late amendment, costs go the other way. We are not asking for that. I am saying the justice of this case is met by no order for costs, but there are principles which suggest there should also be costs in favour of Tower Hamlets; and that the exception to that rule, where it would have been contested anyway, does not apply here because, as I say, the principle here was whether the High Court can, by mandatory order, require a local housing authority to allocate accommodation. We succeeded on that point. And all other matters, as subsequent events have shown, negotiations have been fruitful and a settlement has been reached. So in my respectful submission, it would not only be wrong in principle, it would be unfair to make any order for costs against Tower Hamlets and that the right order is no order for costs. MS MARKUS: My Lord, just very briefly in reply. First, Mr Rutledge's submission the defendant is entitled to resist all aspects of our claim, of course the first and primary aspect of our claim was that the defendant ought to discharge its duty to the claimant under Part 7 of the Housing Act and the defendant was wrong to claim in response that it was discharging its duty because it patently was not. As far as the mandatory order -- MR JUSTICE STANLEY BURNTON: It had always been -- you may say lackadaisically, but it was looking for other accommodation. Way back in December of 2000 there was an offer of other accommodation. MS MARKUS: My Lord, it was, but it was doing so on the basis that -- and this may explain why it was so lackadaisical -- it was doing it on the basis that it understood that it had already discharged its duty under Part 7; therefore, there was no imperative upon it to find another or better solution. And, my Lord, it may be that that is a symptom of the difference between the defendant being required to discharge its duty under Part 7 and discharging a duty under Part 6 of the Housing -- or, sorry, make a nomination or otherwise allocate under Part 6 of the Housing Act. The defendant's position was throughout that it had no legal imperative to do anything more than it was doing and that was wrong. As far as the mandatory order for the injunction was concerned, at the permission hearing it was noted that -- and I accepted this, while not withdrawing the claim for the mandatory injunction -- that it may be that the claim would proceed on the alternative basis that the defendant lawfully consider, and, my Lord, the judge at the permission hearing noted that we claimed in our relief such further or other relief as may be appropriate so that even if the court could not ultimately order a nomination, it might make other orders beneficial to the claimant. But of course we were labouring under a lack of information, as I have already set out to your Lordship. As far as the amended grounds of relief are concerned and the case of Beoco , my Lord, this is an entirely different situation. We have not at any point substantially altered the substance of what was being sought. The issues between the parties have always been clear, and at the bottom line they have been about whether or not the family is being adequately accommodated and how the defendant should respond to any inadequacies. Amendments to the claims for relief has, as your judgment records, followed from a changing in position arising out of a very late service of evidence. MR JUSTICE STANLEY BURNTON: Thank you very much. I remain of the view that the appropriate order in this case is no order for costs. I bear in mind that certainly on one view of the facts the claimants have found themselves compelled to bring these proceedings because the proceedings of the defendant were taking some very considerable time. On the other hand, that considerable time was affected by the extent of the investigations actually made and having to be made by the defendant into the housing requirements of the claimants, investigations which indeed are still continuing and which it is agreed on both sides should continue. So far as the pleaded issues were concerned, to some extent the claimants were successful. On an issue of principle the defendant was successful. I also bear in mind that at the relevant time such obligation as the defendant was under arose as a result of its own decision to continue to fulfill the housing requirement under Part 7 after the two-year expiry and the fact that there had been attempts on the part of the defendant to rehouse the claimants even before proceedings began. I think I should say nothing about the appropriateness of the offer that was made in those circumstances and since it was one which was not investigated during the course of the hearing before me. But for all those reasons, it seems to me that there was success on both sides and failures on both sides. I am influenced by the extent to which during the course of the hearing and immediately before the parties came to a consensus and that consensus exists today. For all those reasons, I make no order as to costs. MS MARKUS: My Lord, could the claimant have an assessment of their publicly funded costs? MR JUSTICE STANLEY BURNTON: Of course. MS MARKUS: Thank you. MR JUSTICE STANLEY BURNTON: I am sure it would help the associate considerably, and that is why she is standing up now, if you were to please type up an order and initial it, and it will then be issued in the form it is agreed. Thank you very much for your educational submissions, and, as I say, for your comments on the draft judgment. Thank you.

Cited in 3 later judgments