M, R (on the application of) v London Borough of Hackney [2009] EWHC 2255 (Admin)

[2009] EWHC 2255 (Admin)Case No CO/1779/2008
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 13 March 2009
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE CRANSTON
Between
THE QUEEN ON THE APPLICATION OF MClaimantv
Between
MAYOR AND BURGESS OF THE LONDON BOROUGH OF HACKNEYDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr Bowen (instructed by Moss and Company) appeared for ClaimantMr K Rutledge (instructed by Hackney Legal Services) appeared for Defendant
J U D G M E N T

Introduction

[1]This is a difficult case. In broad terms it raises the issue of reconciling individual rights with the rights of the community. In legal terms, the claim involves a challenge to a decision by the Mayor and Burgesses of the London Borough of Hackney ("the Council") refusing to transfer the claimant to ground floor accommodation. The claimant is subject to an order under the Sexual Offences Act 2003. The challenge is on the grounds that the Council's decision was procedurally flawed and irrational in the public law sense. Background[2]The claimant was born in 1923 and is now 84 years old. He has a significant disability. He has had four hip replacements to his right hip and one to his left hip. His left leg is significantly shortened. He has generalised lower limb osteoarthritis and ischemic heart disease. As a result of his disability he mobilises slowly with two crutches and has limited use of his hands and shoulder.[3]A social needs assessment of the claimant in September 2008 set out these disabilities, in particular the difficulties with his mobility. It mentioned the restricted use of his arms and his urology difficulties, resulting in a need to urinate frequently. That report also said that he was not able to use the stairs but he had friends who assisted with his bulk shopping and undertook some domestic tasks when needed. The report noted that his friends assist him when he needs to collect cash. His main carer attended daily, with the exception of Sunday mornings, and a carer also assisted with purchasing small perishable items. The report noted that the claimant was to be assessed as a substantial risk because he only had partial control over the immediate environment, because of his inability to carry out the majority of personal care and domestic tasks and because the majority of his social support systems and relationships could not be sustained. The report concluded that no further action was required at the time and that the claimant had employed the services of a solicitor to advocate for his housing needs.[4]A statement before the court by one of the Council's social workers sets out the personal care package available to the claimant. He has a carer one hour a morning to assist with his showering and bathing, his toileting and his breakfast preparation. He also receives daily personal care for 30 minutes to assist him with undressing and in the preparation of night snacks. There have been certain adaptations to his home to accommodate his needs. There is no challenge to this package in the present action.[5]Because of his condition, the claimant needs assistance to get in and out of his first floor flat. When he attends hospital, he is met by an ambulance and carried down the stairs by three men. He has a wheelchair for use outside but he is unable to utilise that in the flat. Approximately once a month his friends come and carry him down the stairs so that he can go out, but otherwise he is housebound.[6]The claimant is a convicted paedophile. His offending goes back to 1942 when he was convicted of buggery and sentenced to a period of hard labour for 15 months. In 1949, at the Central Criminal Court, he was convicted of three offences of indecent assault on various males and sentenced to 2 years' imprisonment. Eleven years later, he was sentenced to 3 years' imprisonment for an offence of buggery. In 1964, again at the Central Criminal Court, he was convicted of attempted buggery and indecent assault on a man and sentenced to four years' imprisonment. Three years later, he was convicted of four offences of gross indecency and sentenced to four years' imprisonment. In 1975, again at the Central Criminal Court, he was convicted of four offences of indecent assault on a male under the age of 14 and sentenced to imprisonment for four months. In 1981, at Acton Crown Court there were two offences of indecent assault on a male and a sentence of two years, suspended for 2 years, was imposed. In 1989, there were 13 offences of buggery, two offences of aiding and abetting buggery and three offences of indecent assault of a male under 16, leading to a total period of imprisonment of 13 years. His most recent offending was in 1999, when Highbury Magistrates imprisoned him for three months, suspended for three years, for possession of six offences of indecent photographs of a child.[7]In November 2004 a sexual offences prevention order was made, to which the claimant agreed, under section 104 (1) of the Sexual Offences Act 2003 ("the order"). Yesterday, during the course of the hearing, the claimant personally denied the allegation set out in paragraph 2 of that order, but the fact is that he consented to the order being made. That particular matter concerned a 15-year-old boy who had said to the police that he had visited the claimant a number of times at his home address. During the course of those visits the claimant had discussed topics such as homosexuality and masturbation and had tried to persuade the boy that those things were acceptable. He had also urinated in a bucket in front of the boy on one occasion. He had exposed himself to the boy as if to urinate on another occasion but did not appear to do so. He also requested the boy to remove his trousers and T-shirt.[8]The order is in a reasonably standard form. It provides that the claimant should not contact or associate with a child under the age of 17, whether directly or indirectly; not knowingly visit or remain in any private or public dwelling house where there is a child under 17; not enter any children's playground or similar establishment; not loiter in or around public toilets, except for the purpose of relieving himself; and not undertake any work or activity which in its nature would bring any contact with persons under the age of 17 years. Finally, there is a general prohibition on contact or association with convicted sex offenders.[9]In pursuance of the order, the claimant is visited regularly by a police officer and his flat is searched. The claimant believes that he may be the subject of additional covert surveillance.[10]Let me turn to the claimant's housing. He is a secure tenant of the Council and has been so since August 1996. As indicated the flat is on the first floor. As a result of his disability he is housebound unless he has significant support to enable him to access or egress the flat. He applied for a transfer to ground floor premises. His need for ground floor accommodation was defined as critical. In 2006, he was awarded priority under the Council's housing allocation scheme. He was offered a ground floor flat. He wished to accept the transfer. To his credit he advised the Special Needs Housing Manager of the order so that she could confirm that he could accept it, since the ground floor flat which had been offered to him was near a children's playground.[11]On 30th August 2006, the claimant was advised that the offer had been withdrawn. The Special Needs Housing Manager wrote that unfortunately she was unable to nominate the claimant to the property, "because of the information divulged by you and by subsequent telephone conversations with PPTP." The following month, on 20th September, the Special Needs Housing Manager sent another letter to explain the outcome of a Multi Agency Public Protection Arrangements ("MAPPA") meeting, which had recently been held. She wrote:
"It was agreed that the housing department would not be able to offer you a housing transfer. This means that your transfer application will be removed from our system and you will be unable to be bid for appropriate properties."
[12]The minutes of the MAPPA meeting of the 13 September 2006 are not before the court except for the first page. The cover page explains that a MAPPA meeting is called in circumstances where it is felt that the risk presented by an offender is so great that issues of public or individual safety outweigh the rights of confidentiality. However, the disclosure of information outside the meeting, beyond that agreed, would be considered a breach of confidentiality.[13]The following month, on 18 October 2006, the Special Needs Housing Manager wrote again explaining that the refusal was the direct result of the MAPPA meeting on the 13th September. She recorded that it was overwhelmingly agreed that the housing department should not offer the claimant a housing transfer "because of the greater need to protect the public (principally children)." The letter went on regarding the claimant's request for a full explanation. She said that it was her understanding that the information was confidential. The tenancy agreement remained uneffected. In relation to his question about the section of the tenancy agreement under which he was refused, she referred him to the booklet, "How We Let Our Homes" and to this statement in the booklet:
"There are some circumstances where you may be considered ineligible for an offer of housing."
She pointed out the possibility of an internal appeal. The claimant appealed the decision. There seems to have been a considerable delay in dealing with the matter but eventually a hearing was arranged for May 2007. At the hearing the claimant was advised that he would be told the outcome in writing.[14]On 18th October 2007 a "minded to" letter was sent to the claimant's solicitors. It set out the reasons for the proposed appeal decision. The letter recorded that the Council had made reasonable inquiries and did not believe that the claimant was at risk due to the inadequacy of his home. It considered that he may be housebound in his current accommodation but that he had carers who were able to take him from his accommodation when this was reasonably required. It informed his solicitors that the Council were satisfied that the claimant was a grooming paedophile, who happened to have become worse with age. (I interpolate to say that the claimant denies that characterisation.) The letter continued that there had been no willingness on the claimant's behalf to change his behaviour. He was subject to a sexual offences prevention order and was considered to be one of the highest risk offenders in the borough. It was felt that if the claimant were to be given a ground floor flat with better access for himself, and also for any children in the vicinity, there would be a risk to the public or a section of the public, in other words children. "Therefore weighing up your client's needs and rights and those of others. Our clients have concluded that subject to anything you may say that they are not minded to transfer your client to ground floor accommodation. " The letter concluded by inviting further submissions within 14 days.[15]In response to submissions advanced on behalf of the claimant the Council sent what is in effect the decision letter under challenge in this case, dated 20th November 2007. The letter was authored by the legal officer for the Council, who had also signed the letter of 18th October. He said that the Council confirmed its decision. The matter had been re-evaluated following a meeting on 13th September 2006 - that was a reference to the MAPPA meeting - "in discharge of their obligations under section 67 and 68 of the Criminal Justice and Court Services Act 2002."[16]The letter recalled the previous letter and asserted that it set out Council's current position. Any previous contrary position in respect of the high need categorisation which the claimant had under the housing allocation scheme was no longer operative. The letter said that the Council was satisfied that the claimant had carers. It agreed that the Council had failed to furnish evidence in relation to the refusal to move the claimant to ground floor accommodation, despite his high need categorisation, but that did not mean that there was no evidence. It was simply that the Council was not in a position to release the confidential minutes of the MAPPA meeting. It recalled the Council's allegation, that the claimant was a paedophile, and that the claimant had not disputed that, except to say that there was a sexual offences prevention order in place which protected the public. Legal Framework[17]Part 6 of the Housing Act of 1996 ("the 1996 Act") governs the allocation of social housing. Section 159 (1) provides that a local housing authority shall comply with the provisions of part 6 in allocating housing accommodation. Section 159 (5) applies part 6 of the Act to a transfer of housing accommodation on request as well as to an initial allocation. Section 160A of the Act sets out categories of person ineligible for the allocation of housing accommodation. Subsection 7 identifies one such category, namely where a local housing authority is satisfied that:
"(a) he, or a member of his household, has been guilty of unacceptable behaviour serious enough to make him unsuitable to be a tenant of the authority; and (b) in the circumstances at the time his application is considered, he is unsuitable to be a tenant of the authority by reason of that behaviour. Section 160 A (8) provides that the only behaviour which may be regarded as unacceptable for the purposes of subsection 160A (7) is: "(a) behaviour of the person concerned which would (if he were a secure tenant of the authority) entitle the authority to a possession order under section 84 of the Housing Act 1985 (c 68) on any ground mentioned in Part 1 of Schedule 2 of the Act (other than ground:8)..."
. One of the grounds in Part 1 of Schedule 2 is Ground 2. "The tenant or a person residing in or visiting the dwelling house - "(a) has been guilty of conduct causing or likely to cause a nuisance or annoyance to a person residing, visiting or otherwise engaging in a lawful activity in the locality, or, "(b) has been convicted of - "(i) using the dwelling house or allowing it to be used for immoral or illegal purposes, or, "(ii) an arrestable offence committed in, or in the locality of, the dwelling house." Section 160A (9) - (11) set out the need to notify an applicant of the decision "and the grounds for it", that the notification be in writing and the right of the applicant to make a fresh application.[18]Under the Housing Act 1996 housing authorities must have an allocation scheme: section 167. Subsection 2 provides that as regards priorities a scheme must be framed so as to secure reasonable preference for:
"(d) people who need to move on medical or welfare ground (including grounds relating to a disability)."
Under subsection 2A a scheme must contain provision for determining priorities in allocating housing accommodation. The factors which the scheme may allow to be taken into account include any behaviour of the person which affects his suitability to be a tenant. Subsection 2B is to the effect that nothing in terms of the reasonable preference provided for in the scheme requires it to afford any preference for persons who fall within subsection 2C. That section refers to unacceptable behaviour:
"This subsection applies to a person if the authority are satisfied that: "(a) he, or a member of his household has been guilty of unacceptable behaviour serious enough to make him unsuitable to be a tenant of the authority; and "(b) in the circumstances at the time his case is considered, he deserves by reason of that behaviour not to be treated as a member of a group of people who are to be given preference by virtue of subsection (2)."
[19]Thus section 167 (2D) invokes the approach to unacceptable behaviour set out in Section 160A. Finally, the scheme must ensure that a person is able to obtain information about it so as to assess how an application will be treated: s.167(4A).[20]Pursuant to those provisions, the Council has introduced an allocation scheme. It was mentioned earlier and is entitled, "How We Let Our Homes". Part 2 deals with eligibility. In particular it says:
"The law also allows the Council to exclude from access to social housing, people whose behaviour has been so unacceptable as to provide grounds (were they existing tenants) for an outright court order for possession."
In addition there is a paragraph headed, "Other unsatisfactory behaviour":
"The Council may decide to limit the priority given to a rehousing applicant where there is evidence of other "unsatisfactory behaviour" (such as anti social behaviour). This is likely to be relevant to existing Council or housing association tenants or to homeless households in temporary accommodation made available through the Council. The local housing manager is responsible for deciding whether an applicants priority should be reduced and for notifying the applicant of this. Applicants may request a review of any decision in respect of eligibility."
Later in the allocation scheme there is a chapter on medical priority. This sets out the criteria for category A medical priority. It applies:
"to the most urgent cases: where a person is at risk due to inadequacy of their home or is housebound within it and would otherwise be able to go out or be taken out."
[21]Two authorities were cited where it was held that a tenant was responsible for unacceptable behaviour, justifying eviction. In City of Bristol v Mousah (1998) 30 HLR 32 a tenant occupied a property which was being used for the supply of drugs. The assistant recorder found as a fact that the tenant was not present at the time of any police raid but was aware of what was taking place. Nevertheless the assistant recorder held that it was not reasonable to make an order for possession because the tenant would be made homeless. He suffered certain mental problems which would be exacerbated as a result.[22]The Court of Appeal held that the assistant recorder was not entitled to speculate as to the possible outcome of any application which the tenant might make to the council as a homeless person. The court held that the breach of the tenancy agreement involved the commission of a serious offence over a period of three or four months. In those circumstances it was only in exceptional cases that it would not be reasonable for a possession order to be made. Beldam LJ said:
"Where there is such a serious breach of a condition of the tenancy, it is only in exceptional cases that it could be said that it was not reasonable to make the order"
(at p 39).[23]Beldam LJ held that the public interest was best served by making it abundantly clear that if those who had the advantages of public housing committed serious offences they would be subject to an order for possession, save in exceptional cases. Such an order would assist a housing authority who under the statutory scheme had a duty to manage the housing stock for the benefit of the public.[24]In the course of his judgment Otton LJ said that the learned recorder did not discriminate between the fact-finding exercise he had embarked upon and the exercise of the housing authority's powers and duties under the Housing Act, which encompassed their obligations to house the homeless. In effect, he elided the judicial function with the administrative function. The answers and explanations given did not justify or support the conclusion that the respondent could only be kept off the streets by the exercise of a juidicial discretion in his favour (p.40)[25]Sandwell Metropolitan Borough Council v Hensley [2007] EWCA Civ 1425, [2008] HLR 22 was a challenge by the local authority to a district judge's suspension of a possession order. The council wanted the possession order to be made outright. The tenant had allowed the property to be used for an extensive and sophisticated cannabis cultivation operation involving the use of hydroponics. The tenant admitted possession of the equipment and pleaded guilty to a charge of being knowingly concerned with the cultivation of cannabis. The local authority instituted possession proceedings on the basis of the conviction - using the premises for an illegal purpose but also because the tenant was guilty of conduct likely to cause a nuisance or annoyance to anyone residing, visiting or otherwise engaged in lawful activity in the locality. The district judge had suspended the possession order because there had been no further breaches following the tenant's conviction.[26]The Court of Appeal allowed the council's appeal. The court said that the central issue was whether the district judge should have suspended the possession order. Gage LJ said that the court was cautious about accepting the general principle set out in Mousah, that where a tenant had been convicted of a criminal offence there had to be exceptional circumstances before an order for possession could be suspended: paragraph16. However, the effect of Mousah was to stress the serious nature of the breach of a condition, which involved the commission of a criminal offence: paragraph17. The more serious the offence, the more serious the breach. Gage LJ said: "I would add that the council, as a provider of social housing, have a duty to make sure (so far as it can) that its properties are properly managed and are kept free from the sort of activity with which we are concerned. This, in my judgment, is another factor which weighs the balance in favour of an outright order" (paragraph 25). Arden LJ held that the court could take into account the prospect of better behaviour in the future but also the effect of the tenant's behaviour on the housing authority of having so unsatisfactory a tennant. The claimant's submissions[27]In his cogent submissions on behalf of the claimant Mr Bowen advanced three main arguments. First, he submitted there was no indication, in the letters from the Council, which suggested that it had considered the allocation criteria. Secondly, he contended,the Council had been procedurally unfair in not advising the claimant as to the basis of the decision so that he could respond. Thirdly, he said, the decision did not, in any event, fall within the allocation criteria. In regard to that third point, Mr Bowen submitted that the behaviour of the claimant was not of a character where an outright possession order would be likely to be made.[28]In developing his grounds Mr Bowen referred to the MAPPA meeting in September 2006 and the subsequent reference to the greater need to protect the public, principally children. He submitted that the earlier letter in 2006 had certainly not indicated that the housing eligibility criteria were being taken into account. Indeed, as late as the letter of October 2007 there was reference to the Council weighing up the client's needs and the rights of others. The decision letter of 20th November 2007 referred to a re-evaluation by the Council but that was, in his submission, a re-evaluation by reference to section 67 of the Criminal Justice and Court Services Act of 2000. None of the Council's decisions made explicit reference to the allocation criteria. The decision, as a result, could not have been based on any assessment of the allocation criteria in part 6 of the Housing Act 1996 or in the Council's housing allocation scheme.[29]In Mr Bowen's submission one also had to look at the composition of the MAPPA, which had made the decision. It was obvious that the decision was not being made on a housing basis. It was significant, in Mr Bowen's submission, that the author of the letters of the 18th October 2007 and the 20th November 2007 was the Council's legal officer. The decision letter itself was written following the advice of counsel. All this demonstrated just how far removed from the housing allocation scheme this decision was. Mr Bowen then turned to what he contended was an absence of reasons. The 1996 Act required that with ineligibility decisions the Council's reasons had to be express: section 160A (9).[30]In his submission, there was no indication in the letters as to the reasons for the Council's refusal to allocate the ground floor flat. In the early stages it was all very vague, that being justified by reference to confidentiality. Thereafter references were to public protection, not housing eligibility criteria. By the time of the solicitor's letters the matter had become legalistic. There was never a clear expectation that the claimant was disqualified for transfer under the housing allocation scheme.[31]As to his third point, the allocation criteria, Mr Bowen submitted that the claimant had been housed after his release from a sentence of imprisonment. He had been allocated the first floor flat at the time when he was still mobile and able to get out. At that point, the Council was fully aware of his past but had still housed him. In Mr Bowen's submission, given that the last conviction did not involve contact with children, and given that the behaviour described in the order in relation to the 15-year-old boy did not involve any criminal activity, it was perverse for the Council to decide that it would not allocate him the ground floor flat. Unacceptable behaviour had to be behaviour which would provide grounds for an outright order of possession. Accordingly, in Mr Bowen's submission, whether any behaviour was unacceptable had to be seen in a landlord and tenant context. An outright order for possession against a secure tenant would not be granted in this type of case. The claimant denied he was a grooming paedophile. No action had been taken, apart from the order itself, in relation to the 2004 incident. There was a partial explanation for one aspect of the incident, which had triggered the order, the urination. The claimant's assessment of needs, which I quoted earlier, explained his urology problems. The Mousah and Hensley cases were far removed from this case because they involved serious criminal behaviour. Analysis[32]Let me begin with the claimant's first submission, the failure to consider the allocation criteria. The Council's correspondence is in certain respects opaque. However, account needs to be taken of what the Council saw as their obligation of confidentiality. That was because of the basis on which the MAPPA meeting was held. Importantly, the September 2006 letter said that the claimant "will be removed from our system." It seems to me that when taken in context that comment falls into place. It is evident that the Council was referring to the eligibility conditions of its housing allocation scheme: the claimant would be removed from the system because he was no longer eligible.[33]The letter of the October 2006, from the Special Needs Housing Manager contained a copy of "How We Let Our Homes". That is the Council's housing allocation scheme. So although it was obvious that the MAPPA meeting was the catalyst for the decision, the decision was being framed in terms of the housing allocation scheme. Moreover, the claimant was offered the opportunity to appeal under provisions set out in the housing allocation scheme.[34]By the time of the October 2007 and November 2007 letters it was clear that the Council was not prepared to offer the claimant a ground floor flat because of the operation of its housing allocation scheme. The 2006 letters were signed by the Special Needs Housing Manager. The 2007 letters were from the Council's solicitor but by then the claimant himself had solicitors. It is not surprising that the Council's solicitor should have been engaged in the correspondence with them. When all the correspondence is read together it is plain that from the first reference to removal of the claimant "from our system" the Council was applying its housing scheme's eligibility criteria.[35]As for the reasons given by the Council, in my view it was obvious to the claimant the basis on which the decision was being made. There was no procedural unfairness. As I said earlier, the claimant to his credit informed the Special Needs Housing Manager of the 2004 order when he was offered the ground floor flat in July 2006. So he would have known the considerations which led to the withdrawal of the offer and the background to the ultimate decision in the letter of November 2007 now challenged. However opaque to outsiders the correspondence might have been, it would have been obvious to the claimant the reasons for the Council's decision. In my judgment, the allegation of a failure to give reasons cannot be sustained.[36]Finally, I turn to the allocation scheme itself and the lawfulness of the decision under it and the terms of the Housing Act 1996, part 6. This issue turns in particular on the concept of unacceptable behaviour in section 160A(7) of the Act and part 2 of the Council's housing allocation scheme. The Council took the view that the incident of 2004 constituted anti-social behaviour sufficient to justify an outright possession order. In considering that matter I have regard to two background factors. In Hensley Gage LJ referred to the need for a council, as a provider of social housing, to make sure that its properties are properly managed and kept free from undesirable activity. It is in my view also necessary to underline the remarks in the judgment of Otton LJ, which I have quoted, that the judicial and administrative functions should not be elided. Admittedly the remarks were in a somewhat different context. But the message to me is clear: it is not for me to allocate Hackney's housing.[37]In my view, even though the claimant had been given housing, despite his long history of offending, the Council was entitled to place very heavy weight on his conduct in 2004. The fact that the claimant was not convicted of any offence then does not, in my view, make his behaviour any less serious. The significance of those incidents in 2004 was that they concerned a 15-year-old boy who had visited the claimant at his flat on a number of occasions. The Council was entitled to treat what the boy described as the behaviour of the claimant as a serious matter. In my judgment, the Council's concerns were not fanciful. In the light of the evidence, it is impossible for me to conclude that no reasonable housing authority would have concluded that the claimant was unsuitable to be one of its tenants. This Council was entitled to override the priority which this claimant would otherwise have had under its housing allocation scheme because of his medical condition. It was not perverse of it to refuse him the transfer. Conclusion[38]The Council submitted that its stance in this case was exceptional. I agree. As I have concluded it was entitled to make this decision not to move the claimant to a ground floor flat, notwithstanding the grade A medical priority he had under its housing allocation scheme. It was entitled in law to adopt this stance by reason both of the provisions of part 6 of the Housing Act 1996 and part 2 of its own housing allocation scheme. The council recognises the hardship that the decision has caused, and will cause, to the claimant. It has undertaken to provide the community care services which meet the claimant's needs in his existing property, so as to mitigate the hardship for him of its housing decision. Putting aside the legal considerations, I would expect it to meet that undertaking.[39]Thank you.[40]MR RUTLEDGE: Much obliged, my Lord, I would simply ask for the claim to be dismissed and an order for costs, subject to the usual caveat.

MR JUSTICE CRANSTON: Yes.

[42]MR BOWEN: My Lord, no observation in respect of that, save to say: may we have a legal aid application, a publicly funded assessment of the claimant's costs.

MR JUSTICE CRANSTON: Yes, thank you very much.

[44]MR RUTLEDGE: Thank you.

Cited in 1 later judgment