Burns, R (on the application of) v London Borough of Southwark [2004] EWHC 1901 (Admin)

Case No CO/1483/2004

[2004] EWHC 1901 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Monday, 19 July 2004

Strand

London WC2

B E F O R E:

MR JUSTICE GAGE

Between

THE QUEEN ON THE APPLICATION OF BURNSClaimant

-v-

Between

LONDON BOROUGH OF SOUTHWARKDefendant

Computer-Aided Transcript of the Stenograph Notes of

Smith Bernal Wordwave Limited

190 Fleet Street London EC4A 2AG

Tel No: 020 7404 1400 Fax No: 020 7831 8838

(Official Shorthand Writers to the Court)

MR A BERRY (instructed by Lindsay & Jockelson) appeared for CLAIMANT

MR J SWIRSKY (instructed by Southwark Council Legal & Democratic Services) appeared for DEFENDANT

J U D G M E N T

[1]MR JUSTICE GAGE: The issue in this case involves the interaction between a local authority's duties and obligations in respect of homeless persons under the Housing Act 1996 and the Home Office's right to control immigration. It involves some complex legislative provisions, but in the end the issue, in my judgment, is a narrow one. It arises in this way.

[2]The claimant was born in Nigeria in April 1964. She arrived in this country in October 1982 on a visitor's visa together with her two young daughters. She was not married to the children's father. Shortly after arrival she heard that her father, a politician, had been killed and she became frightened to return to Nigeria. In July 1990 she gave birth to a son, the father of whom was her ex-partner from Nigeria and with whom she had been reunited. However, that relationship ended about one year after her son was born. In 1995 she applied for political asylum.

[3]In 1997 she met Thomas Burns. They became friendly and formed a relationship which led to marriage on 26th February 1997. Mr Burns is an Irishman. Sadly, the marriage did not endure and in due course he ceased to come home. In December 1998 the claimant asked him not to return. I have been told that his whereabouts at this time is not known.

[4]In the meantime the application for political asylum was still pending. However, following her marriage she was advised by solicitors to make a fresh application on the basis of her marriage. She has never divorced Mr Burns, nor has he divorced her. During the marriage the claimant lived with Mr Burns at 247 Wendover House, Thurlow Street, London SE17. She continued to live there up to March 2004 together with her three children who are now aged 20, 15 and 14.

[5]In March 2004 the defendant took proceedings for possession of 247 Wendover House on the ground of non-payment of rent. Her case is that the rent arrears built up due to her not receiving housing benefit. On 16th March 2004 the claimant was evicted from Wendover House by the defendant. On 17th March she went to the Housing Unit of the defendant seeking assistance as a homeless person. On 18th March solicitors acting for her wrote a letter before action and on the same day obtained an injunction from the court requiring the defendant to provide the claimant with accommodation. That injunction has been continued pending this hearing.

[6]On 19th March the defendant refused assistance. The refusal was sent by letter. In the second paragraph it says:

"We have interviewed you and have made enquiries on the information that you have given to us. Following consideration of all this information, we have decided that you may be homeless, or threatened with homelessness, but we are unable to assist you because you are not eligible for assistance under the above Act. This is because: "

You are neither a British Citizen, nor you [sic] a commonwealth Citizen with the right of abode. You are not an EEA National. You are a Nigerian national, who arrived in the UK on 15 October 1989. You provided this Authority with papers from the Home Office that state that you initially claimed asylum on arrival in the UK. In addition you provided further documents from the Home Office which suggest that your immigration status has changed from an asylum claim to an application to regularise your stay in the UK through marriage to Mr John Burns. "However, from the documentation you have provided, it is clear that your immigration status is yet to be determined and that you are currently awaiting a decision regarding your status, from the Home Office. At present you have no recourse to public funds. As a consequence, you are not eligible for housing assistance as outlined in Section 185 of the Housing Act 1996 (as amended by the Homelessness Act 2002). "If you are in interim accommodation provided by the Housing Access Unit, we may be taking the appropriate action to recover this accommodation."

[7]By a letter dated 26th March 2003 solicitors acting for the claimant asked for a review of that decision and sought discretionary assistance. By a letter dated 31st March 2004 the defendant indicated that the matter would be subject to review but refused assistance pending the review. It is that letter which is the subject of these proceedings and I refer to three paragraphs in it, starting with the second paragraph which reads:

"In your letter of 26th March 2004 you also requested that the Council exercises its power under section 188(3) of the Housing Act 1996 to provide Mrs Burns and her family with accommodation pending the outcome of that review. I have now considered this application. In reaching my conclusion I have been mindful of the guidance given in the case of R v Camden LBC ex p Mohammed [1998] 30 HLR 315. I have considered the documents on the homelessness file, the decision letter of 19th March 2004, and your letter of 26th March 2004. Your client's application under Part VII of the Housing Act 1996 was turned down because, although she was found to be homeless or threatened with homelessness, she was found not to be eligible within the meaning of section 185 of the Housing Act 1996. "

In your submissions, in your letter of 26th March 2004, you do not dispute the council's conclusion that Mrs Burns' immigration status neither gives her the right of abode in the UK, nor does it allow her recourse to public funds. Your argument is essentially that the Home Office should change her immigration status but has refused to do so. You say that Mrs Burns has an outstanding appeal which has yet to be determined. "The first matter that I have to consider is the merits of Mrs Burns' case on the section 202 review. I must ask myself to what extent the original decision was contrary to the merits or involved a fine balance of judgment. In this case I am afraid I can see little merit in the request for a review. The council has no power to accommodate persons who are not eligible under section 185. When considering whether a person is eligible or not the council must base its conclusions on their actual immigration status, not what the applicant says it should be or what it might be in future if a successful appeal were to be brought against a decision taken on behalf of the Home Secretary."

[8]The claimant's case is that the defendant in that letter, refusing to exercise his powers under section 188(3) of the Housing Act 1996 to provide accommodation to her, has acted irrationally or unreasonably. The defendant's case is that the claimant is a person subject to immigration control and therefore not eligible for housing assistance. The issue therefore turns on the claimant's status in this country. Her case is that she is entitled to remain in the United Kingdom by virtue of the fact that she is married to an Irish national, and as such is not a person subject to immigration control. She has rights of residence as a family member of a European Economic Area national.

[9]I turn therefore to the statutory provisions and deal first with the Housing Act 1996. A local authority has a statutory duty under Part 7 of the 1996 Act to provide housing assistance for homeless persons, provided an application for assistance is made pursuant to section 183. On such an application the local authority becomes under an obligation to make inquiries to satisfy itself that the applicant is eligible for assistance and, if so, what duty it owes to the homeless person. I refer now to section 184(1) and (3) of the Housing Act. Section 184 reads:

"(1) If the local housing authority have reason to believe that an applicant may be homeless or threatened with homelessness, they shall make such inquiries as are necessary to satisfy themselves (a) whether he is eligible for assistance, and (b) if so, whether any duty, and if so what duty, is owed to him under the following provisions of this Part. "(2) ... "(3) On completing their inquiries the authority shall notify the applicant of their decision and, so far as any issue is decided against his interests, inform him of the reasons for their decision."

[10]Such a decision can be the subject of a review under section 202, and the decision on review can itself be challenged under section 204. Once a local authority has made its inquiries, the decision must be communicated to the applicant. Section 188 provides, in the event of a favourable decision, a duty on the local authority to provide accommodation. Section 188(1) reads:

"If the local housing authority have reason to believe that an applicant may be homeless, eligible for assistance and have a priority need, they shall secure that accommodation is available for his occupation pending a decision as to the duty (if any) owed to him under the following provisions of this Part."

[11]If the decision is adverse to the applicant and a review is sought the local authority may grant assistance to the applicant under section 188(3) which reads:

"The duty ceases when the authority's decision is notified to the applicant, even if the applicant requests a review of the decision (see section 202). "

The authority may continue to secure that accommodation is available for the applicant's occupation pending a decision on a review."

[12]The exercise of the discretion under section 188(3) is subject to criteria set out in R v Camden London Borough Council ex parte Mohammed

[1997] 30 HLR 315

, which is the decision referred to in the letter of 31st March, and to which I shall have to refer later. In this case the defendant has decided that the claimant is not eligible for assistance because she is a person from abroad and ineligible for assistance. Its decision, which is the decision under review, is set out in the letter of 31st March 2004 which is signed by Mr Albert Quarcoopome, whose statement is before the court. The claimant is a person from abroad but her claim is that she is entitled to assistance as the spouse of an EEA national and is not subject to immigration control.

[13]I turn now to the immigration legislation. British citizens have a right of abode in the United Kingdom, pursuant to section 2(1)(a) of the Immigration Act 1971. Section 3(1)(a) of the Immigration Act 1971 provides under the heading "General provisions for regulation and control":

"Except as otherwise provided by or under this Act, where a person is not a British citizen (a) he shall not enter the United Kingdom unless given leave to do so in accordance with the provisions of, or made under, this Act."

[14]Section 7 of the Immigration Act deals with Community rights of nationals of Member States. Subsection 1 of that section reads:

"A person shall not under the principal Act require leave to enter or remain in the United Kingdom in any case in which he is entitled to do so by virtue of an enforceable Community right or of any provision made under section 2(2) of the European Communities Act 1972."

[15]Finally, section 13 of the 1996 Immigration Act defines a person subject to immigration control in subsection 2 in the following way:

"'person subject to immigration control' means a person who under the 1971 Act requires leave to enter or remain in the United Kingdom (whether or not such leave has been given)."

[16]Article 4 of the European Union Directive 68/360 states as follows:

"1. Member States shall grant the right of residence in their territory to the persons referred to in Article 1 who are able to produce the documents listed in paragraph 3. "2. As proof of the right of residence, a document entitled 'Residence Permit for a National of a Member State of the EEC' shall be issued. This document must include a statement that it has been issued pursuant to Regulation (EEC) No 1612/68 and to the measures taken by the Member States for the implementation of the present Directive. The text of such statement is given in the Annex to this Directive."

[17]So one then turns to the right of European Economic Area nationals, as set out in The Immigration (European Economic Area) Regulations 2000. Regulation 2 states, in what appears to be a definition or an interpretation of Regulations, under Regulation 2(1):

"'decision-maker' means the Secretary of State, an immigration officer or an entry clearance officer (as the case may be); 'EEA decision' means a decision under these Regulations, or under Regulation 1251/70, which concerns a person's ... " (a) and (b) are not material.

(c) is: "

Entitlement to be issued with or to have renewed, or not to have revoked, a residence permit or residence document."

[19]Then further down:

"'residence document' means a document issued to a person who is not an EEA national, in accordance with regulation 10 or 15, as proof of the holder's right of residence in the United Kingdom."

[20]And then further on:

"'spouse' does not include a party to a marriage of convenience."

[21]Regulation 14 is entitled "Rights of residence" and is relied upon by the claimant in this case. It reads:

"(1) A qualified person is entitled to reside in the United Kingdom, without the requirement for leave to remain under the 1971 Act, for as long as he remains a qualified person. "(2) A family member of a qualified person is entitled to reside in the United Kingdom, without the requirement for such leave, for as long as he remains the family member of a qualified person. "(3) A qualified person and the family member of such a person may reside and pursue economic activity in the United Kingdom notwithstanding that his application for a residence permit or residence document (as the case may be) has not been determined by the Secretary of State.

(b) "

[22]Regulation 21(3)(b) is part of the regulation which deals with exclusion and removal from the United Kingdom.

[23]It is submitted by Mr Berry, on behalf of the claimant, that this regulation underlines the status of an EEA national. It is a right to work and live in other European Community countries and is not dependent on being granted rights in this country by the Government.

[24]I must now make further reference to residence permits. I have already referred to Regulation 2. It is necessary before dealing with Regulation 15, which specifically deals with the issue of residence permits, to refer briefly to Regulations 5 and 6. Regulation 5 is headed "Qualified person". Paragraph (1) reads:

"(1) in these Regulations, 'qualified person' means a person who is an EEA national and in the United Kingdom as (a) a worker; (b) self-employed; (c) a provider of services; (d) a recipient of services; (e) a self-sufficient person; (f) a retired person; (g) a student; or (h) a self-employed person who has ceased activity."

[25]Regulation 6 deals with family members. Paragraph (1) reads:

"(1) In these Regulations, paragraphs (2) to (4) apply in order to determine the persons who are family members of another person. "(2) If the other person is a student, the persons are (a) his spouse; and (b) his dependent children."

[26]Then it goes on to deal with the position of spouses of other persons entitled to be in the United Kingdom by virtue of the European Directives. So I come to Regulation 15 headed "Issue of residence permits and residence documents". Paragraph (1) reads:

"(1) Subject to regulations 16 and 22(1), the Secretary of State must issue a residence permit to a qualified person on application and production of (a) a valid identity card or passport issued by an EEA state; and (b) the proof that he is a qualified person. "(2) Subject to regulation 22(1), the Secretary of State must issue a residence permit to a family member of a qualified person (or, where the family member is not an EEA national, a residence document) on application and production of (a) a valid identity card issued by an EEA State or a valid passport; (b) in the case of a family member who required an EEA family permit for admission to the United Kingdom, such a permit; and (c) [which is material in this case] in the case of a person not falling within sub-paragraph (b), proof that he is a family member of a qualified person."

[27]The claimant claims the right of residence in this country by virtue of the fact that she is married to Mr Burns, himself a European Economic Area national who lived and worked in this country. There is no dispute that if this is the case she has a good arguable case to remain in this country as the primary carer of children of a person who was a migrant worker in the host Member State as defined and as set out in Baumbast v Secretary of State for the Home Department (Case C - 413/99)

[2002] 3 CMLR 23

ECJ.

[28]Finally, I have been referred to the Homelessness (England) Regulations 2000. Regulation 3 deals with persons who are subject to immigration control but who are nevertheless eligible for housing assistance. I am not concerned with this regulation. Regulation 4 deals with persons from abroad who are ineligible for housing assistance. The claimant relies on it to support her case. Mr Berry submits that the effect of this regulation is to provide that some EU nationals not subject to immigration control are, even if not habitually resident in the United Kingdom, nevertheless entitled to benefit. In that respect they are better off, he submits, than British citizens. It is unnecessary for me to recite the whole of that regulation. It reads in the material part relied on by the claimant:

"A person who is not habitually resident in the Common Travel Area other than ... (b) a person with a right to reside in the United Kingdom pursuant to the Immigration (European Economic Area) Order 1994 and derived from Council Directive No. 68/360/EEC[17] or No. 73/148/EEC[18]."

[29]I now turn to the submissions in relation to the decision in this case. As I indicated during the course of argument and now conclude, in the end the issue is a narrow one. The claimant submits that in this case, when exercising its discretionary powers under section 188(3), the defendant has an obligation, if not a duty, to inquire into the claimant's status in this country. It is submitted that without doing that it cannot decide the issue of eligibility.

[30]Here it is submitted that the defendant has fettered its discretion by going no further than the Secretary of State's decision refusing a residence permit under Regulation 15 of the Immigration (EEA) Regulations 2000. It is submitted that what the defendant ought to have done is to make its own quick assessment on the material available to it. That material is contained in the claimant's solicitors' letter stating that she is married to an Irish national (marriage certificate supplied) who was working in this country as a national of a European Community state. What it is not entitled to do, it is submitted, is to go no further than the refusal by the Secretary of State of a residence permit where there is an appeal pending. Mr Berry submits that to do as the defendant did in this case is not to apply the facts to the low threshold provided by section 188(1) and (3) of the Housing Act 1996. He further submits that that frustrates the objects of free movement of workers within Community states and the application of European Community rights within Member States.

[31]Mr Swirsky, for the defendant, submits that it is reasonable for the defendant to rely on the Secretary of State's decision. To do otherwise would, he submits, be to raise the possibility of conflicting decisions between a local authority and the Secretary of State on immigration matters. In any event the Home Office is the department primarily responsible for immigration. Mr Swirsky relies on the fact that the question of the grant or refusal of a residence permit is not a rubber stamp exercise. It involves the Secretary of State in making inquiries and making a decision based on those inquiries, something which is better done by the Home Department than a local authority.

[32]Each party has referred to the decision of Latham J, as he then was, in R v Camden London Borough Council ex parte Mohammed. In that decision Latham J set out the criteria applicable to the exercise by the local authority of its discretion under section 188(3). I quote from the second paragraph on page 321 of the judgment:

"The important question is whether, in applying that phrase, it is apparent that the officers of the respondent Council have either failed to take into account material considerations, have taken into account immaterial considerations or have otherwise displayed irrationality. [The phrase was 'exceptional reasons'.] The need that I identify as the underlying requirement of the exercise of this discretion is to keep, on the one hand, well in mind the objective of fairness between those who are homeless in circumstances where the local housing authority has in its first decision decided that there is no duty to the particular applicant and, on the other hand, to give proper consideration to the possibility that the applicant may be right, and that to deprive him or her of accommodation could result in a denial of an entitlement. "

In carrying out that balancing exercise, it is clear that there are certain matters which will always require consideration. First, the merits of the case itself and the extent to which it can properly be said that the decision was one which was either apparently contrary to the merits of the case or was one which required a very fine balance of judgment which might go either way. "Secondly, it requires consideration of whether there is any new material, information or argument put before the local housing authority which could have a real effect upon the decision under review. "Finally, it requires consideration of the personal circumstances of the applicant and the consequences to him or her of an adverse decision on the exercise of discretion. It may well be that in some cases other considerations may prove to be relevant."

[33]The discussion or the statement of the first criteria, being the merits of the case, has been the subject of other judicial comment. Brooke LJ, in the case of R v London Borough of Newham ex parte Anthony Lumley CO/4390/99 unreported, said this at paragraph 54:

"It is therefore clear that in his use of the expression 'the merits of the case' Latham J must be taken to have meant 'the merits of the applicant's case that the council's original decision was flawed'."

[34]Mr Berry submits that the defendant has an obligation when exercising its discretion to look at the merits of this claimant's claim for eligibility. Mr Swirsky submits that the inquiries must be read in the light of dicta of Hale LJ in R v Wandsworth London Borough Council ex parte O & another

[2000] 1 WLR 2539

to which I now refer. The part I propose to refer to, and on which counsel on both sides rely, is at page 2557. It reads from letter D:

"I conclude, therefore, that there is no general principle of legality excluding certain people from access to social services as opposed to specific statutory provisions which may do so. This is scarcely surprising. Local social services authorities are skilled at assessing need and arranging the appropriate services. That is their statutory duty under section 47 of the Community Care Act 1990. It is also the professional skill of social workers. They are not and never have been professionals in making moral judgments as between particular people with identical needs. They have no particular skills of facilities for assessing whether or not a person is subject to immigration control or has a real choice about whether or not to return to his home country. It is the Secretary of State, through the Immigration and Nationality Directorate, who knows the individual's immigration status, has routine access to the local country information which might make such judgments possible, and has the power to determine whether or not a person should be allowed to remain here, and to remove him if he should not."

[35]Mr Swirsky, on behalf of the defendant, relies to some considerable extent on that paragraph and the following paragraphs, to which I will refer in a moment. Mr Berry, on the other hand, points out that that was a case where there were no criteria for eligibility, as opposed in this case where eligibility is set out as a statutory requirement. Hale LJ continues at F:

"Further, as Simon Brown LJ has demonstrated, immigration status is a complex matter. To arrive at a definition of those whose presence here was so questionable as to give rise to an assumption of ineligibility for services would be a difficult task. Should it depend upon whether or not a criminal offence is committed (bearing in mind that the offence in question is not a particularly serious one); or upon whether or not the person concerned can currently be removed from the country immediately (which is more complicated still); or upon whether or not the person currently has a permission to be here which does not preclude his resort to such services? Where does the question of choice between staying and returning come into the equation? "

It makes much more sense both in practice and in principle to leave the task of deciding upon need to the provider of health, education or social services, and the task of deciding whether or not a person should be allowed to remain here to take advantage of those services to the immigration authorities. This is subject, of course, to the power of Parliament expressly to limit eligibility to those services where eligibility has previously depended solely upon need."

[36]Both sides also have made reference to, and rely on, the Secretary of State's guidance to local authorities issued pursuant to section 182 of the Housing Act 1996. The guidance contains a number of passages under the chapter entitled "Eligibility for Assistance". I do not refer to all that have been cited by counsel, but just one or two. Paragraphs 5.1 and 5.2, under the heading "General" read:

"5.1 Part 7 includes provisions that deny eligibility for housing assistance to certain groups of person from abroad. Housing authorities will therefore need to satisfy themselves that applicants are eligible before providing housing assistance. The provisions on eligibility are complex and housing authorities will need to ensure that they have procedures in place to carry out appropriate checks on housing applicants. "5.2 Housing authorities should ensure that staff who are required to screen housing applicants about eligibility for assistance are given training in the complexities of the housing provisions, the housing authority's duties and responsibilities under the race relations legislation and how to deal with applicants in a sensitive manner. Housing authorities may wish to refer to Annex 14, which provides model questions that can provide a pathway to determining eligibility."

[37]Turning to Annex 14, Mr Berry in particular relies on question 11 which states:

"Are you any of the following?", and (ii) reads: "a person with a right to reside in the UK pursuant to Council Directive No 68/360/EEC or No 73/148/EEC."

[38]Mr Berry submits that the Council are there given the guidance that they should have trained staff capable of making the appropriate inquiries. Perhaps one other citation from the guidance is necessary, 5.7:

"If there is any uncertainty about an applicant's immigration status, housing authorities are recommended to contact the Home Office Immigration and Nationality Directorate, using the procedures set out in Annex 21. Before doing so, the applicant should be advised that an inquiry will be made; if at this stage the applicant prefers to withdraw his or her application, no further action will be required."

[39]No such inquiry was made in this case. Mr Swirsky submits that it was unnecessary since it was an agreed fact that the Secretary of State had refused to grant a residence permit.

[40]The judgment which I have to make is whether the decision of the defendant in its letter of 31st March 2004 was unlawful in the sense that it was either irrational and/or unreasonable or both. My view is that it was not. Whilst a local authority has an obligation to make inquiries about an applicant's eligibility, it seems to me that where the Secretary of State has refused a residence permit, the local authority is entitled, when exercising its discretion under section 188(3) of the Act, to take that decision at face value. It might be different if the applicant was awaiting a decision of the Secretary of State but where as here a resident permit has been refused, it seems to me that it is reasonable for the defendant to work on the basis of that evidence without making its own inquiries.

[41]I take into account the submissions that have been made on behalf of the claimant about the delay, as it has been experienced in this case, that may be caused, but in my view the passage in Ex parte O to which I have referred has some application to this situation. Although the guidance exhorts local authorities to have trained employees who can deal with immigration issues in respect of eligibility, it must be the Home Office European Union unit which will have more experience on such matters.

[42]In my judgment, it cannot be unreasonable for the defendant in such a case, and in particular in this case, to have relied on the evidence of the Secretary of State's refusal. Looking at the letter itself, to which I have referred, it seems to me that the defendant considered that and the other matters set out in this letter before exercising its discretion and then making its decision.

[43]In the circumstances, in my judgment, it conforms to the criteria set out in Ex parte Mohammed, and in my view it does not display any errors or flaws. In the circumstances, in my judgment, this application for judicial review must be refused.

[44]MR BERRY: My Lord, there are two matters I have to deal with. They relate to the question of whether or not we can seek permission to appeal, and also the issue of costs in this matter in respect of my client's case. I do not know what application my friend has to make in relation to costs.

MR JUSTICE GAGE: Shall we wait and see what application he is going to make?

[46]MR BERRY: In relation to the appeal, my Lord, I do not know if you wish to deal with that first.

[47]MR JUSTICE GAGE: Let us deal with them logically one at a time, costs first. Mr Swirsky?

[48]MR SWIRSKY: We have won, so we would ask for our costs.

MR JUSTICE GAGE: I take it that she has legal assistance support.

[50]MR SWIRSKY: No.

MR JUSTICE GAGE: She has not?

[52]MR BERRY: My Lord, the position is that Legal Services Commission funding was refused on the assessment of the means test rather than on the merits test. At the time she had made her application she was not paying housing costs because she did not have any housing costs at the time, and so no amount was allowed in the application for an assessment of that. That has been the subject of challenge by those instructing me on the construction of the Legal Services Commission funding regulations, but there is no right of appeal to the funding appeal board as there is on the merits test, and the dispute is outstanding. A fresh application was made last Friday under an emergency certificate but the actual grant of that certificate in terms of whether or not it is well made out has not yet been decided. It may be that for today's purposes we are covered, but it looks as if for work up until last Friday there was no certificate in force.

[53]MR JUSTICE GAGE: I think that all I can do is to make an order for costs, but as to the question of enforcement, you must have liberty to apply.

[54]MR BERRY: If we were to be legally aided then we would ask for the order where although we have to bear the costs, there would be, in my understanding, a section 11 order that whether or not the claimant or the Legal Services Commission should bear the costs would need to be assessed first.

[55]MR JUSTICE GAGE: That is why I give you liberty to apply, because that can then be resolved if and when the position is known.

[56]MR BERRY: My Lord, there is one final matter in relation to the issue of costs, and that is that Collins J, in directing that the matter came to court initially, looked at the issue of costs in the beginning of this application where there had been no decision under section 184, and also there had been no decision for a refusal to grant accommodation under section 188(1). If your Lordship turns to the --

[57]MR JUSTICE GAGE: So you say that you were entitled to either costs or not have to pay the costs of the initial?

[58]MR BERRY: If the defendant -- it is page 106.

[59]MR JUSTICE GAGE: We are now in the problem that that is where my bundle goes wrong. Just read it out to me.

[60]MR BERRY: He adjourned the application for oral hearing on notice in eight days. "If in the meantime defendants accept they have the alleged duty, application to be withdrawn and (subject to the right to object) defendant to pay costs. If the defendants accept that they will maintain interim accommodation, permission will be dealt with after an Acknowledgment of Service is served in the normal way."

[61]So the duty there in question was the duty under section 188(1) to provide accommodation at that stage.

MR JUSTICE GAGE: What they did then was make a further decision.

[63]MR BERRY: They made the section 184 duty --

MR JUSTICE GAGE: What are you saying, Mr Berry? What are you asking for?

[65]MR BERRY: We are asking for our costs up until the timing of the section 184 decision because pending a decision there is a duty to accommodate under section 188, and there was no accommodation.

MR JUSTICE GAGE: Yes, I have the point.

[67]MR SWIRSKY: My Lord, the history of this case is that the 184 decision was made on the previous Friday, before the order of Collins J. You have already referred to that letter in your judgment.

MR JUSTICE GAGE: Without looking at the documents, just tell me what your point is.

[69]MR SWIRSKY: The point is that the decision was made on 19th March. The hearing in front of Collins J was on the 22nd, and it was made without his Lordship being informed that we had already conceded that there was a duty, and we had made the decision under section 184. So the matter should not have been before Collins J on 22nd March because at that point there was no jurisdiction to make any order for interim accommodation. There was no application at that stage for review. The application for review was not made until 26th March.

MR JUSTICE GAGE: You say it was premature?

[71]MR SWIRSKY: They made the application on the papers to Andrew Smith J. That was not premature but something went wrong and Collins J was not informed that the decision had been made at that time that he made his conditional costs order. I do not criticise anyone unduly; these things happen. But in these circumstances when it is fairly clear that the decision letter was given to the claimant personally on the 19th, and an injunction was sought after that weekend, it is surprising that the claimant seek those costs at the end of the case when they have lost.

MR JUSTICE GAGE: Yes.

[73]MR BERRY: My Lord, that is not my understanding. What happened was that the claim was filed on 18th March, which was a Thursday, and an application for consideration on the papers was made. There was no decision on that and so an interim order was sought by telephone on Thursday, 18th March. That was the interim relief. The defendant never made a decision to provide this accommodation under section 188(1) pending the decision under section 184. What the defendant did do on Friday the 19th was to make a decision on section 184, thus obviating the need for a decision under section 188(1). There was no decision letter under section 188(1) which was why we had to go to court. What Collins J --

MR JUSTICE GAGE: He was not told.

[75]MR BERRY: When his Lordship considered it the following Monday, he was considering the urgent application on the papers which had been lodged on Thursday the 18th. His Lordship had not been informed at the time he made the decision that a section 184 decision had been made. It had only been handed to my client on the previous Friday and the weekend had intervened. His Lordship's view was referring to such a period before a 184 decision was made. So in respect of the period before such a decision was made, my Lord, we ought to have our costs in respect of that period of time.

[76]MR JUSTICE GAGE: In effect the defendant has won, perhaps not everything. Doing the best I can in the circumstances I propose to order that the claimant pays 80 per cent of the defendant's costs, subject to the claimant having the right to apply within 14 days if it appears that she has the support of the Legal Services Commission for today's hearing.

[77]MR BERRY: I am grateful. There is just one further point in relation to the application last Friday for a new Legal Services Commission certificate. It may be that we do have that; it will be granted. May we have an order for detailed assessment of the claimant's privately funded costs under that certificate, subject to 14 days to file it in court.

[78]MR JUSTICE GAGE: Yes, that would at least save you having to put that in an application. I cannot see the reason why you should not have that, on condition that you have it.

[79]MR BERRY: Indeed.

[80]MR SWIRSKY: My Lord, the 80 per cent of the costs you have ordered, you said they are subject to a detailed assessment?

[81]MR JUSTICE GAGE: Yes. Unless you can agree them. Now you want to talk about appeal.

[82]MR BERRY: I am in the difficult position of asking for permission to appeal.

[83]MR JUSTICE GAGE: No, it is not at all difficult. I entirely recognise it. I think that my provisional view, subject to any submission of yours, is that this is one of those matters that you have to go to the Court of Appeal to seek permission from it.

[84]MR BERRY: My Lord, I will not detain you further, save for the observation that there is a point about the way in which your Lordship has outlined the relationship between local authorities and central government creates an obstacle to the furtherance of Community rights, and given that your Lordship did draw attention to the delay in this case we would say there are some rather compelling reasons why it should be heard on appeal.

[85]MR JUSTICE GAGE: You will, I am afraid, have to explain that to one of the members of the Court of Appeal. Thank you both very much. I am genuinely grateful for your assistance in an area which is, some might say, a little archaic.