Kelly & Ors, R (on the application of) v Birmingham City Council [2009] EWHC 3240 (Admin)

Case No CO/6160/2009; CO/10672/2009; CO/10726/2009

[2009] EWHC 3240 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN’S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Birmingham Civil Justice Centre

Priory Courts

33 Bull Street

Venue Birmingham

Date Tuesday, 10 th November 2009

B4 6DS

Before

MR JUSTICE HICKINBOTTOM

THE QUEEN ON THE APPLICATION OF

Between

NEVILLE KELLYClaimant

YOHANIS MEHARIClaimant

JIClaimant

BIRMINGHAM CITY COUNCILDefendant

(DAR Transcript of

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Mr Nabi (instructed by appeared for Claimant.

Miss Hodgson (instructed by appeared for Defendant.

Judgment

Introduction

[1]These applications concern the obligation of the Defendant Council (“the Council”) under Part 7 of the Housing Act 1996 (“the 1996 Act”) to provide applicants who are homeless with interim accommodation pending a decision on their substantive application for housing under the provisions of that Act. Each claimant, Neville Kelly and Yohanis Mehari, claims that the Council’s decision not to provide him with such interim accommodation was unlawful, and in particular the Council’s practice and procedure for considering their obligation to provide housing on an interim basis is flawed. It is submitted on their behalf that the Council have a policy or a consistent practice that is intended to avoid, or at least has the effect of avoiding, their obligations under Section 188 of the 1996 Act. In each case the Council accept that they made a mistake, such as to make their decision in that case unlawful: but they contend that the mistakes were idiosyncratic and isolated and do not evidence any systemic failure on their part. They deny such a failure. In each case the Claimant has now effectively obtained the substantive relief sought, in terms of housing, but each seeks declaratory relief in relation to the alleged defects in the Council’s practice and procedures. An order has been made for a rolled up hearing of the claimants’ applications for permission and, if successful, the substantive applications immediately following. Those are the applications now before me.

[2]There was a third claim raising similar issues, brought by a child, JI. JI was given interim accommodation some weeks ago, but has not resided at the accommodation provided by the Council for two months and his solicitors have lost contact with him. At the beginning of the hearing, I dismissed his application for permission to proceed, but gave him 28 days to apply to set aside or vary that order. However, the facts of JI’s case were referred to by way of illustration in the course of debate, and I shall refer to them in this judgment.

The Law

[3]A local housing authority’s duties towards the homeless are found in Part 7 of the 1996 Act. Section 175, so far as relevant, provides:

“(1) A person is homeless if he has no accommodation available for his occupation, in the United Kingdom or elsewhere, which he (a) is entitled to occupy by virtue of an interest in it or by virtue of an order of a court (b) has an express or implied licence to occupy, or (c) occupies as a residence by virtue of any enactment or rule of law giving him the right to remain in occupation or restricting the right of another person to recover possession. (2) … (3) A person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for him to occupy. (4) A person is threatened with homelessness if it is likely that he will become homeless within 28 days.”

Section 176 provides:

“Accommodation shall be regarded as available for a person’s occupation only if it is available for occupation for him together with (a) any other person who normally resides with him as a member of his family, or (b) any other person who might reasonably be expected to reside with him…” (a) is entitled to occupy by virtue of an interest in it or by virtue of an order of a court (b) has an express or implied licence to occupy, or (c) occupies as a residence by virtue of any enactment or rule of law giving him the right to remain in occupation or restricting the right of another person to recover possession. (a) any other person who normally resides with him as a member of his family, or (b) any other person who might reasonably be expected to reside with him…”

[4]Where an authority have reason to believe that an applicant may be homeless or threatened with homelessness, Section 184 obliges that authority to make such enquiries as are necessary to satisfy themselves whether the applicant is eligible for assistance and, if so, what duty to house, if any, they owe him under the provisions of the Act. In the meantime, two duties fall on the authority. First, under Section 179, they have a duty to make advice and information about homelessness available to the applicant. Second, they have an interim duty to accommodate under Section 188(1), which provides:

“If the local authority have reason to believe that an applicant may be homeless, eligible for assistance and has 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.”

That duty ceases when the authority’s decision is notified to the applicant in writing (Section 188(3)).

[5]Section 189 describes those in priority need as follows:

“(1) The following have a priority need for accommodation (a) … (b) a person with whom dependent children reside or might reasonably be expected to reside; (c) a person who is vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason, or with whom such a person resides or might reasonably be expected to reside… ”

The Secretary of State may by order specify further descriptions, and has done so in the Homelessness (Priority Need for Accommodation) (England) Order 2002, SI 2002 No 2051, which adds defined 16 and 17 year old children. (a) … (b) a person with whom dependent children reside or might reasonably be expected to reside; (c) a person who is vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason, or with whom such a person resides or might reasonably be expected to reside… ”

[6]By Section 182, in exercising its functions relating to homelessness, a local authority must have regard to guidance given by the Secretary of State. That guidance is found in the Homelessness Code of Guidance.

[7]In relation to this statutory scheme the following are worthy of note:(i) An application under Part 7 of the 1996 Act can be in any form, and need not be in writing: R (Aweys and Others) v Birmingham City Council

[2007] EWHC 52 (Admin)

(“Aweys”) at [8] per Collins J.

(ii) Once an application has been made, the duty on an authority to make enquiries is immediate, in the sense that there is no power to defer making that enquiry: see Robinson v London Borough of Hammersmith & Fulham

[2006] EWCA Civ 1122

at [36] per Waller LJ; Aweys at [8]; and the Homelessness Code of Guidance, paragraph 6.16.

(iii) In the meantime, if an authority have reason to believe that an applicant may be homeless, eligible for assistance and have a priority need, they are under a duty to provide that applicant with temporary accommodation pending a decision as to what duty to house him (if any) that authority owe the applicant under the provisions of the 1996 Act.

(iv) It was agreed before me -- and properly so -- that the thresholds based on “reason to believe” are low. In respect of the duty to make enquiries under Section 184, that duty arises on receipt of the application “unless the purported application can be shown to be no application”, e.g. if it is based on exactly the same facts as an earlier application: Rikha Begum v Tower Hamlets London Borough Council

[2005] EWCA Civ 340

at [39] per Neuberger LJ, and Aweys at [8]. It was -- again, I respectfully say, properly -- common ground between the parties that the threshold for the Section 188 duty is similarly low. That is also confirmed in Rikha Begum at [49]. In considering whether their duty under Section 188 is engaged, the authority’s starting point is consequently the information provided by the applicant himself. If that gives rise to reason to believe that the applicant may be homeless, eligible for assistance and have a priority need, then the duty to provide interim accommodation arises. In addition to the phrase “reason to believe”, I emphasise the word “may”, which again underscores the low hurdle an applicant has to surmount to engage the Section 188 obligation.

(v) The engagement of the Section 188 is, as the Homelessness Code of Conduct says (Introduction, paragraph 15), “an important part of the safety net for people who have a priority need for accommodation and are unintentionally homeless”. Any enquiries made before the Section 188 duty arises go simply to the question of whether there is reason to believe that the applicant may be homeless and a priority need for accommodation. Enquiries that go to the different question of whether the applicant is homeless and in priority need are precisely the enquiries required under Section 184, pending which Section 188 provides a right to interim accommodation. An authority cannot defeat the prompt engagement of Section 188 by introducing filters or delays, e.g. by making non-statutory enquiries, or by pursuing courses outside the statutory scheme. In Aweys, the claimants criticised Birmingham City Council for failing to satisfy their obligations under Section 188 in favour of seeking to avoid applicants becoming homeless at all, by (for example) trying to ensure that applicants remained where they were in what was called “the Home Option Scheme”. For example, those aged between 16 and 25 were referred to an organisation called St Basils, which provided specialist help and support to help applicants stay in their home or find more suitable housing. Collins J held that such steps could not displace nor defer an authority’s obligations under Part 7 of the 1996 Act. He said of the Home Options Scheme at [25]: “It cannot lawfully be used to defer consideration of a homeless application. All steps to avoid homelessness are of course laudable. But any steps must be taken in parallel to the carrying out of the duty under Part 7.”

(vi) Once the obligation to provide interim accommodation has arisen under Section 188, it remains on the authority until the authority have completed their enquiry under Section 184 and notified the applicant of the resultant duty to house him, if any.

[8]Those propositions in relation to the statutory scheme were uncontentious before me. There was no dispute as to the proper construction of the statutory provisions or their interpretation in the cases to which I was referred.

[9]Issue between the parties arose because the Council submitted that they have adopted procedures designed to implement that scheme, as construed above, and those procedures were applied in the cases before me (and, I would add, in the case of JI). The mistakes in each case were because their procedures had not been followed by those employees of the Council who implemented them. They were down to individual instances of human error in the particular cases. However, Mr Nabi for the claimants contended that the mistakes made were such that, by considering what had happened in the individual cases, I could be satisfied that either the Council’s true intention was not, as the Council submitted, to implement the statutory scheme but rather to defeat it, or, if it was their intention to implement the scheme, their practice and procedures were such that they gave rise to a risk that, in a significant number of cases, interim accommodation would not be secured in cases in which it ought to be secured, the two cases (and the case of JI) being illustrative of that.

[10]That brings me to the facts of the cases. However, before I deal with them, it would be helpful if I set out briefly how generally the Council deal with an application by a homeless person for housing.

Part 7 Applications: An Introduction to The Council’s Procedure

[11]In respect of homelessness applications under Part 7 of the 1996 Act, the Council have the heaviest workload of any housing authority in the country, with over 5,000 applications per year. They have 33 neighbourhood housing offices, of which seven accept homelessness applications. An applicant can present at any of the 33 offices. If the applicant indicates that he requires accommodation, an appointment is made in one of the seven homelessness offices and a request is transmitted to a central office in the form of an “Emergency Accommodation Request”. A form with that title is completed, setting out information with regard to immediate accommodation needs (e.g. Question 1:

“Are you able to remain at your current accommodation tonight?”). There are notes within the form. After Question 12 (“HB Form completed?” -- of course, a reference to a Housing Benefit Claim Form) there is this: “Note: An emergency request form cannot be submitted until a HB form has been completed”

. In Questions 17 and 18 there are seven separate questions relating to risk. After the applicant’s signature there is the following rubric:

“Upon completion of the interview, unless the applicant and family are at risk of harm, they should be advised to return to the homeless address whereby a visiting officer will attend the property”: in other words, they are to be sent back “home”

. There is a later question for the interviewer, “Balance of probability satisfied: Yes: No” -- which appears to be a reference to whether, on the balance of probabilities, the applicant would be safe or at risk if he returned “home”.

[12]The Council said that, from the initial interview as recorded on that questionnaire, the interviewer determines whether “emergency accommodation” will be offered. The form is also the starting point for the Section 184 enquiry. Those enquiries would start immediately and would include a full interview with the applicant. At that interview a second form (entitled “Homeless Application Form: Housing Act 1996, Part VII”) would be completed. That includes the personal details of the applicant and other information incorporated on the Emergency Accommodation Request form, but additional information too, some of which would derive from the applicant himself and some from other sources. That second form is headed:

“This personal data will be held and processed by [the Council] to enable the assessment of need and, in particular, the provision of services for which you may be eligible.”

Once enquiries are complete, the details in that form eventually form the basis of a Section 184 decision as to whether the Council owe any duty to house the applicant under the substantive provisions of Part 7, and, if so, what duty.

[13]I now turn to consider the facts of the individual cases.

Neville Kelly

[14]Mr Kelly was born on 6 August 1987. From an early age he was diagnosed as suffering from Attention Deficit Hyperactivity Disorder and Oppositional Defiant Disorder and was on drug therapy for his condition from the age of six. In 2004 he suffered a road traffic accident as a result of his impulsive behaviour, and was hospitalised for a couple of months.

[15]On 11 September 2009 he attended the King’s Heath Neighbourhood Office of the Council with a curt note from his mother:

“To whom it may concern. I am letting you know Neville Kelly no longer lives at this address. I have kicked him out on 8th Sept.”

He also had with him letters from doctors which clearly evidenced his medical condition and diagnoses. Miss Hodgson for the Council accepted that, on the basis of that evidence, there was reason to believe that Mr Kelly was homeless and had a priority need for accommodation because he was a person who was “vulnerable as a result of mental illness or handicap or physical disability or other special reason”. That concession was readily and properly made. Paragraph 10.33 of the Homelessness Code of Guidance stresses the care with which an authority needs to consider vulnerability where the applicant is under 25 years of age. On 11 September Mr Kelly was seen by Mr Ashley Clarke. He filled in an Emergency Accommodation Request form. That form marked that Mr Kelly suffered disability as a result of learning difficulty and a medical health problem. That same day Mr Clarke filled in a “Homeless Application Form - Progress Sheet”, which was in narrative form as follows:

“App suffers with ADHD, has provided a couple of letters which are from ‘05/’06. States what medication he was on, and how severe they thought his condition was. They felt his behaviour was not a result of having a mental illness, and his behaviour was the result of low intelligence. Contacted Learning Difficulties Team. They advised 2066 was last involvement had with him, and confirmed he was on medication at the time. Contacted Dr Kenyon, who confirmed app has no priority need. Discussed circumstances, nothing to suggest he would be vulnerable. Have contacted app and spoke to his mum, and advised he has no priority need. Advised of direct access hostel. Discussed with Colette. TA refused.”

[16]Miss Hodgson relied upon the title of that document, “Homeless Application Form”, as showing the Council were engaged upon Section 184 enquiries. However, the matter is one of substance, not form. Miss Hodgson submitted that this form showed that Mr Clarke made enquiries that day of the Learning Difficulties Team, the claimant’s doctor and his mother. She submitted that those enquiries were in furtherance of the Council’s duty to make enquiries under section 184, and the result of those enquiries was that Mr Clarke came to the view that Mr Kelly had no priority need. He informed both his mother and Mr Kelly himself of that. The mistakes made by the Council, said Miss Hodgson, were two-fold, namely that(i) the result of the Section 184 enquiry was not given to Mr Kelly in writing, and

(ii) the substantive decision as to duty owed to the applicant was taken before the enquiry was complete -- and in particular before the homeless interview (see Vicki Pumphrey Statement 27 October 2009, paragraph 2). This was, therefore, a Section 184 decision that went wrong and was unlawful in those two discrete respects. In paragraph 3 of her statement, Miss Pumphrey appears to import from paragraph 4 of the statement of Andrew Perry of 9 October 2009 (made in relation to the case of JI) that this was an isolated case of staff not following instructions.

[17]I cannot accept the premise upon which those submissions were made, namely that Mr Clarke’s decision was a Section 184 decision that was defective -- and unlawful -- in the respects identified by Miss Hodgson. It was clearly not such a decision.

[18]At the bottom of the Progress Sheet of 11 September, to which I have referred, Mr Clarke confirmed the decision he had made, namely “T.a. [i.e. temporary accommodation] refused”. His decision cannot be categorised as a defective Section 184 decision following an inadequate enquiry. It was a decision not to afford Mr Kelly temporary or interim accommodation under Section 188.

[19]Mr Clarke did not take that decision alone. He did so after discussing it with a colleague, “Collette”. But it does not end there. On 15 September, the solicitor for Mr Kelly (Miss Bi) telephoned the Council and spoke to Caroline Darwin. She, too, was in the Council’s Homeless Team. She was an experienced member of that team. Miss Darwin prepared a further Progress Sheet recording the conversation. That makes clear that the decision that had been made on 11 September was that it was interim accommodation that had been refused. Miss Bi said that the Council were under a duty temporarily to house Mr Kelly pending the completion of their Section 184 enquiries: Miss Darwin did not agree that that was the case. Miss Hodgson accepted before me that that was an error of law by Miss Darwin. Later that day Miss Darwin sent a fax to Miss Bi, sending “all documents pertaining to Mr Neville Kelly’s Temporary Accommodation request”, reiterating the nature of the decision taken by Mr Clarke.

[20]There is no doubt that Mr Clarke considered and decided Mr Kelly’s application as one for interim accommodation. Unfortunately, he did so without any apparent appreciation of Section 188 or of the obligations which that statutory provision imposes on the Council. He considered whether Mr Kelly had a priority need for accommodation, not whether there was reason to believe that he did so. The latter is a lower test, as Paragraph 6.5 of the Homelessness Code of Guidance reminds authorities. Mr Clarke did not bring his mind to bear upon the right criteria: but, as Miss Hodgson properly conceded, had he done so, on the basis of Mr Kelly’s application and documents he produced in support, the only proper conclusion to which he could have come is that there was reason to believe that Mr Kelly may be homeless and in priority need of accommodation. That would have triggered the Section 188 duty to provide interim accommodation, until the Section 184 enquiry had run its course and the Council had informed Mr Kelly of the resultant duty to house, if any, that it considered it owed to him.

[21]Mr Clarke simply did not engage with the Section 188 criteria at all. He was not alone, as two of his colleagues equally failed to do so; and the Council’s response to this claim evinced no sensitivity to, or real comprehension of, the criteria that ought to have been applied, at least until Miss Hodgson’s valiant effort to rationalise the decision-making process embarked upon by Mr Clarke ex post facto. I do not accept the basis of the defence, namely that the Council’s procedures in this case operated properly, but Mr Clarke individually failed. There is strong evidence in this case of a system failure.

Yohanis Mehari

[22]Mr Mehari is an Eritrean national, who has leave to remain in the United Kingdom. On 2 September 2009, his wife and son (born 4 December 2007) joined him as part of the family reunion programme.

[23]At the time of their arrival, Mr Mehari was living in shared accommodation with four other men. His room was a converted toilet, and was very small. It housed a single bed.

[24]On 3 September Mr Mehari attended the Council’s Newtown Neighbourhood Office seeking housing on the basis that his then current housing was unsuitable for himself and his family. His request for accommodation was refused on the basis that he was not homeless, as it was not unreasonable for him to live with his family in his then current accommodation.

[25]Mr Mehari says that he then attended neighbourhood offices of the Council every day until 14 September: but the Council have no record of any such visits. On 14 September he obtained a letter from his landlord saying that Mr Mehari and his family were unwell, the accommodation was overcrowded, and requesting provision of suitable accommodation. The landlord had none. Mr Mehari attended the Sparkbrook Neighbourhood Office, but assistance was again refused.

[26]On 15 September the landlord took back the keys to the accommodation from Mr Mehari. Mr Mehari and his family faced street homelessness but were taken in by another Eritrean family for two nights in a very small one-bedroom flat without a sitting room. The person who offered that flat declined to do so for a third night. At 6.20pm on 16 September Mr Mehari attended the Neighbourhood Office and was told by a Homelessness Officer (Mr Mick Cooper) that, if he had handed the keys back, he would have to make a further application the following day. The following day Mr Mehari sought legal advice, and, following a letter, an application was made on the evening of 17 September to the duty judge (Sweeney J). He ordered the Council to provide accommodation until determination of the court application. That accommodation was given by the Council for one night, but then withdrawn, until His Honour Judge Purle QC reissued the order with a penal notice attached. Mr Mehari has subsequently been offered accommodation by the Council following the completion of Section 184 enquiries.

[27]Miss Hodgson accepted that, on 16 September, there was clearly reason to believe that Mr Mehari and his family were, or may have been, homeless, or threatened with homelessness, and a priority need because of his young child. Mr Cooper erred in law in sending him away. Insofar as Mr Cooper was right in saying that the Council had no cover at 6.20 in the evening for dealing with applications by the homeless under Part 7 of the 1996 Act, she accepted that that, for an authority such as the Council, would be an unlawful failure of its practice. She submitted, however, that prior to 16 September it was open to the Council to find that the accommodation available to Mr Mehari and his family was reasonable accommodation, and consequently Mr Mehari was not homeless until he had been required to hand the keys to that property back.

[28]I accept that it may have been open to the Council to make that finding. However, there is no evidence that they did so. The Emergency Accommodation Request form indicated to the interviewer:

“Upon completion of the interview, unless the applicant and family are at risk of harm, they should be advised to return to the homeless address whereby a visiting officer will attend the property”

. That note was in the form of an instruction. There is nothing to suggest that, in refusing to provide interim accommodation, the interviewer (Ms Muiread Teague) did not do as she was urged in that note. There is certainly nothing to suggest in the Progress Sheet or Emergency Accommodation Request form that she completed that she had the “reason to believe” criteria of Section 188 in mind, let alone applied them, in coming to her decision. The 27 October 2009 Statement of Vicki Pumphrey, paragraph 3, suggests that the Homeless Officer considered, not whether there was reason to believe that Mr Mehari was homeless, but whether he was in fact homeless. Clearly, Mr Cooper on 16 September did not have the Section 188 criteria in mind.

[29]That deals with the two cases before me. In respect of the other evidence, both parties relied upon the facts of JI in support of their case.

[30]JI was born on 20 May 1992. Following arguments at home (which included an alleged assault by his father on the claimant’s girlfriend), on 5 June 2009 he left his home where he lived with his father, mother and sister. He slept on the streets for four nights. On 8 June he contacted St Basils, who suggested mediation, to which JI was not attracted. On 9 June he attended the Council’s Northfield Neighbourhood Office. An Emergency Accommodation Request form was filled in and a recommendation made as follows:

“Balance of probability satisfied. Emergency accommodation provided. Appointment made for Homeless Officer interview”

. The reason for that recommendation was given as follows:

“Deborah agrees on the balance of probability we can agree T/A [i.e. temporary accommodation] at this stage as we can’t be sure the client would be safe if we returned him home”

. JI was given accommodation that evening at a hotel.

[31]Some enquiries had been made on 9 June, of the Claimant’s mother (who wanted him back home) and the police (who indicated that an incident of violence had been reported). Further enquiries were made thereafter. On 12 June, Ms Linda Bunce (of the Council’s Temporary Accommodation Team) wrote to the claimant at the hotel as follows, in a letter headed “Discharge of Interim Duty”:

“On 10 June 2009, you attended the Northfield Neighbourhood Office requesting emergency accommodation. We accepted interim duty and provided you with a room at the IBIS Holloway Head Hotel. As discussed with you this morning, I have spoken to your mother and I understand it would be safe for you to return to [his parents’ address]. I am aware that your parents do not approve of your relationship with your girlfriend, but they are keen for you to return home. The police have not indicated that you would be at risk at your parents’ address. As such, we have no reason to believe that you are faced with homelessness. The Council discharged its duty to provide accommodation under Section 188, 190, 193 and 200 of the Housing Act 1996. Your room at the IBIS Holloway Head Hotel will be cancelled as from 12 noon Friday, 12 June 2009.”

[32]Following the intervention of solicitors on JI’s behalf, Ms Bunce sent a further letter to the claimant on 15 June as follows, again under the heading “Discharge of Interim Duty”:

“On 10 June 2009, you attended the Northfield Neighbourhood Office requesting emergency accommodation. We accepted interim duty and provided you with a room at the IBIS Holloway Head Hotel. I wrote to you on 12 June 2009 to discharge our interim duty. You will recall that I telephoned you that morning, but you terminated the conversation before your options could be discussed. The Community Law Partnership requested that we make further enquiries, which I have now had the opportunity to do. I have, again, spoken with your mother, who is extremely concerned about your welfare and is anxious for you to return home. I have also spoken with your father, who has expressed his desire for you to return home as soon as possible. Both of your parents have confirmed to me that you would be safe to return, and are certain that you know this to be the case. I understand that a family row took place at a barbeque at your parents’ address on Sunday, 31 May 2009. I am informed that your girlfriend, [L], was involved with your sister, [J], and that your father tried to separate the two girls. Your parent and [L’s] mother have stated there was no violence towards you. You have left [L], and during the following week you spent your time between home and your girlfriend’s mother’s property, before requesting emergency accommodation on 9 June 2009. As you are aware, your parents do not approve of your relationship with your girlfriend, but they have stated very clearly that you are welcome to return home, but they do not want [L] to visit. The police have not indicated that you would be at risk at your parents’ address. Both your father and your sister are cooperating with Bourneville Lane Police Station. As such, we do not accept that you are faced with homelessness, as there is no reason to believe that you would not be safe at your parents’ address. Since your parents do not know your whereabouts, they cannot contact you, but I have advised that you are safe an in temporary accommodation. They are very keen to hear from you, and want to make arrangements for you to return home. In the meantime, I have a referral to St Basils, who can help with family mediation and interview you, with a view to assisting you with accommodation in the future. A Homeless Interview has also been arranged for you and my colleague, who will fax the details over to you. The Council has now discharged its duty to provide accommodation under Section 188, 190, 193 and 200 of the Housing Act 1996. Your room at the IBIS Holloway Head Hotel will be cancelled as from 12 noon, Wednesday, 17 June 2009.”

[33]Those letters make clear that, as a result of Ms Bunce concluding that JI would not be at risk if he returned to the home of his parents, she (Ms Bunce) did not accept that he was “homeless”, and that any duty the Council had under Section 188 to afford JI interim accommodation had been “discharged”. That was clearly not right, the Section 188 duty having arisen, it could not be discharged until the end of the enquiries under Section 184 and the notification to JI of the result of those enquiries in terms of the duty to house accepted by the Council, if any. The Council accept that those two letters terminating the interim accommodation were unlawful because(i) no decision had been notified to JI in writing, and

(ii) Section 184 enquiries were continuing -- a homeless interview had been arranged for 19 June -- so any substantive decision would be premature. Those reasons of course chime with the reasons for the mistakes conceded by the Council in the case of Mr Kelly. Further enquiries were made of the police about alleged acts of violence by the claimant’s father on 23 June.

[34]The claim for judicial review was issued on 17 June, and interim relief obtained in the form of a mandatory order requiring the Council to house JI until the court application had been determined. On 24 June the Council lodged an Acknowledgment of Service accepting (in paragraph 6) that:

“… by finding that [JI] was not homeless before all the necessary investigations, including the homeless interview, had been completed. The [Council] wrongly attempted to discharge interim duty…. The [Council] accepts that it made a mistake of fact but attempted to rectify that error.”

On 3 July the Council wrote to JI with a formal Section 184 notification to the effect that they did not accept he was homeless. In addition to their being satisfied that he would not be at risk of violence if he returned home, they said that both of JI’s parents had indicated that they would welcome him home, and both his parents and his sister had indicated that he had left home of his own accord. JI, through solicitors, sought a review of that decision on 8 July. As I understand it, that is still pending, although JI’s solicitors have lost contact with JI who has not stayed at the accommodation provided for two months.

[35]In her letters of 12 and 15 June 2009 Ms Bunce purported to be considering the Council’s Section 188 obligations to provide interim housing. However, although in her letters she expressly referred to the interim duty and to section 188, Ms Bunce patently did not apply the criteria in Section 188. As urged to do by the Emergency Accommodation request form, she applied a test based upon risk to the applicant on return to his previous home. As Miss Hodgson frankly accepted, that is a very different test from that in Section 188.

Discussion and Conclusion

[36]Other than those references by Ms Bunce in her letters, of the many Homelessness and Temporary Accommodation Officers involved with the three cases -- by my calculation, eight -- none refers to Section 188 or gives any indication that they are applying the Section 188 criteria in considering whether an applicant for housing should be afforded interim accommodation pending the outcome of the section 184 enquiries. The Emergency Accommodation Request Forms neither refer to Section 188 nor the criteria of that statutory provision; and indicate that, once the initial interview is over, the applicant is to be “sent home” (i.e. advised to go home) unless he would be at risk of harm there. In JI, that was the test that was expressly adopted. Indeed, Mr Perry (the Interim Project Manager, Temporary Accommodation Team) appears to accept that as the test adopted, without adverse comment: in paragraph 2 of his 9 October statement especially, there is reference to “the balance of probability” being satisfied. I am satisfied that it was the test adopted, too, in the case of Mr Mehari, prior to his eviction on 15 September.

[37]Nor does the other material in evidence aid the Council. The instruction note sent to Homeless Officers on 13 February 2007, after the Aweys judgment, makes no reference to the correct approach to the discharge of the Section 188 obligation. The material from and about St Basils refers to housing options, but not to an applicant’s rights (and the Council’s corresponding obligations) under Section 188. Similarly the Council’s own leaflets, “Housing Options: Do you need help in finding a home?” and “Homeless?” make no reference -- unless the reference to “other options” being available refers to interim accommodation being under Section 188. If so, then the reference is oblique, particularly given the Council’s obligation to secure advice and information about homelessness is available to applicants under Section 179. The Council say that they give their relevant officers regular training sessions on (amongst other things) the Council’s duty under section 188 (Andrew Perry Statement, 9 October 2009, paragraph 3): but they do not indicate the content of such sessions, or the practice and procedure taught and encouraged in them.

[38]Documents relating to other housing applicants have been lodged by the Claimants in support. Nothing in those documents suggests that the Council consider their obligations for housing where homeless applicants for housing apply for housing, and the Council consider such applications under their so-called “emergency accommodation” procedure.

[39]I am only concerned with the decisions of the Council in respect of the two claimants to deny them interim accommodation under Section 188 in the circumstances I have described. There is no doubt that those decisions were unlawful. The Council accept that they were. However, I cannot accept the submission put on behalf of the Council that the errors in those two cases were the individual errors of Council Officers who, contrary to the Council’s proper practice and procedures, erred in deciding whether to offer interim accommodation to Mr Kelly and Mr Mehari pending a completion of the enquiries being made under Section 184. With respect to the Council, that appears unfair to those officers. For example, in deciding that it was safe for JI to return home -- and therefore withdrawing interim accommodation from him -- Ms Bunce was following the instructions in the Emergency Accommodation Request form, namely that if it is safe for the applicant to return home, he should be advised to do so. The error did not lie in Ms Bunce, but in the procedure that she was following. None of the officers purported to apply the Section 188 criteria. None of the Council’s documents explained that they should do so, nor did their external documents explain or suggest to applicants that those criteria would be applied. The Section 188 duty to afford interim accommodation pending the conclusion of enquiries under Section 184 is part of a comprehensive and coherent statutory scheme: but the Council treated what they called the application for “emergency accommodation” as a discrete and separate exercise, divorced from the substantive housing application. There is certainly some evidence that housing applications are not registered until after the initial approach, and even as late as the housing interview: but I do not have to make findings in that specific regard. I am satisfied that, far from the errors in these cases being of individuals who went outside the Council’s practice and procedures, the relevant officers were following the practice and procedure they were encouraged to follow by the Council themselves.

[40]In my judgment, the failure of the Council to apply the Section 188 criteria in the two cases was symptomatic of a general failure of their practice and procedure. The approach of the Council to their obligations under Section 188 at the very least lacks legal coherence and a proper consideration of the relevant Section 188 criteria. So far as the Council are concerned that failure had and, insofar as that practice continues, continues to have, the effect of avoiding their obligations under Section 188 of the 1996 Act.

[41]For those reasons, I shall grant permission to proceed with the judicial review and allow the substantive application in each case.

[42]In doing so, I am quite satisfied that the claimants have standing. In relation to permission Miss Hodgson conceded that the claimants were not “meddlesome busybodies” (see R v Somerset County Council ex parte Dixon

[1997] 75 P&CR 175

at 179, per Sedley J as he then was). Again, plainly, that concession was appropriately made. The claimants do not act out of ill motive, nor are they meddlesome. I am equally sure that these are cases in which it is right to accept that the claimants have standing in relation to the substantive application. The Council accept that they have acted unlawfully in respect of the manner in which they dealt with the application of each claimant under Part 7 of the 1996 Act. I have found that that unlawfulness was wider in scope than the concessions made by the Council. But, importantly, these applications concern interim accommodation. By the nature of interim accommodation, substantive relief in terms of actual housing is likely to be effectively dealt with before any substantive application for judicial review is determined, because the application will be overtaken by the conclusion of the Section 184 enquiry and subsequent decision on the duty to house the applicant other than temporarily, the gap often being covered by interim relief obtained from the court. If, as I have found, the Council have erred in their whole approach to their duty to provide interim accommodation, that is a wrong which these claimants (as well as perhaps, I accept, other applicants) have suffered. I am in no doubt that, in all the circumstances, the claimants have proper standing. Furthermore, for similar reasons, I consider they ought not to be denied relief.

[43]As regard to the appropriate relief, it seems to me that the claimants are each entitled to a declaration that the Defendant Council acted unlawfully in failing to apply the statutory criteria of Section 188 to the issue of whether they should secure that accommodation was available for the Claimant’s occupation pending a decision as to the duty (if any) owed to him under the provisions of Part 7 of the 1996 Act. However, I shall hear submissions in relation to the precise terms of the order.

Order

Application granted.