Khazai & Ors, R (on the application of) v Birmingham City Council [2010] EWHC 2576 (Admin)

[2010] EWHC 2576 (Admin)Case Nos: CO/3662/2010, CO/2243/2010, CO/1896/2010 AND CO/4043/2010
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue BIRMINGHAM DISTRICT REGISTRY, BIRMINGHAM CIVIL JUSTICE CENTREDate 15/10/2010
Before
MR JUSTICE FOSKETT
Between
THE QUEEN (on the applications ofClaimantsHOSSEIN KHAZAIClaimantZAHRA IBRAHIMClaimantHASSAN AZIZIClaimantADIL MIRGHANI)ClaimantBIRMINGHAM CITY COUNCILDefendant
Zia Nabi (instructed by Community Law Partnership) for Claimants 1, 3 and 4 and Jamie Presland instructed by Community Law Partnership) for Claimant 2Bryan McGuire QC (instructed by Birmingham City Council Legal Services) for DefendantHearing Hearing dates: 26-28 July 2010
Judgment

Introduction

[1]The cases before me raise issues concerning the implementation by the Defendant of its policy concerning the provision of temporary accommodation for those said to be in immediate need of assistance.[2]Of the 4 matters listed before me, permission to apply for judicial was granted by His Honour Judge Purle QC in Khazai on 13 April 2010. Permission was refused by Beatson J on 11 March in the case of Ibrahim, but the Claimant has sought to renew the application at an oral hearing. In Mirghani and Azizi on 15 April Wyn Williams J directed a rolled up hearing to be heard along with Khazai and the renewed application in Ibrahim.[3]There are differences between the parties about whether these cases truly raise common issues, but for convenience they were heard together.[4]The claims arise out of the City Council's responsibility under the statutory scheme for assistance to the homeless contained in Part 7 of the Housing Act 1996 (as amended). In summary, where the local housing authority has reason to believe that an applicant for accommodation may be homeless, eligible for assistance and have a priority need, it is under a duty to secure that accommodation is available for his occupation pending a decision as to the duty (if any) owed to him under Part 7. This is provided for in section 188 (1) of the Act which is set out in paragraph 10 below.[5]The City Council's handling of its responsibilities has attracted criticism in the past in R (Aweys & Others) v Birmingham City Council [2007] EWHC 52 (Admin) and, more recently, in R (Kelly, Mehari & JI) v Birmingham City Council [2009] EWHC 3240 (Admin) where, in a judgment handed down on 10 November last year, Hickinbottom J found that the failure of the Council to apply the section 188 criteria in the two cases before him was symptomatic of a general failure of its practice and procedure (see paragraph 22 below). The Claimants in this case seek to extend the area of criticism to a direction given on 24 February 2010 by Mr John Hardy, the Council's Interim Head of Housing Need, concerning the way applications from single homeless persons were to be dealt with.[6]I will set out that direction below (see paragraph 25). It is not disputed in these proceedings that, if implemented, it would have been unlawful. It is, however, contended that it was retracted very quickly, a retraction that was repeated and re-emphasised on subsequent occasions. It is also said on behalf of the Council that since all the Claimants are now in accommodation provided by or with the assistance of the Council the claims are academic and that any extant application for permission should be refused and, where permission has been granted, no relief should be given. The suggestion that has emerged in the proceedings that the Council was adopting a policy of generally endeavouring to make a decision in relation to an application on the same day as the application is made is firmly rejected. That rejection also reflects the position taken by the Council in relation to the contention advanced in these proceedings on behalf of Mr Khazai that Mr Hardy's direction constituted the tort of misfeasance in a public office for which, it is said, the Council is responsible vicariously. I will return to these competing contentions below.

The legal and statutory background

[7]The legal and statutory background is well-known to those who practise in the field of housing law and reflects a well-travelled area in the reported cases. The general framework was the subject of relatively recent consideration by the House of Lords in Birmingham City Council v Ali [2009] 1 WLR 1506 (which represented the ultimate appeal in the case of Aweysand others), by the Court of Appeal in London Borough of Tower Hamlets v Rikha Begum [2005] 1 WLR 2013 and Robinson v London Borough of Hammersmith & Fulham [2006] 1 WLR 3295, and by judges of the Administrative Court, most notably in this context by Hickinbottom J in Kelly, Mehari & JI. The law is relatively uncontentious (see, for example, [3]-[7] of Hickinbottom J's judgment in Kelly, Mehari & JI) and I do not propose to extend this judgment by repeating well-established propositions. I will confine myself to the most relevant areas.[8]In carrying out its duties under the Act a housing authority must give due regard to the Homelessness Code of Guidance for Local Authorities issued by the Secretary of State (section 182). I will refer shortly to three provisions of that Code which are said to be relevant to the issues before me. Before doing so, I will set out the two sections that have played the greatest part in the arguments I have heard. They are sections 184 and 188.[9]Section 184 (which concerns the authority's duty to inquire into cases of homelessness or threatened homelessness) is as follows:(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) They may also make inquiries whether he has a local connection with the district of another local housing authority in England, Wales or Scotland.(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.(4) If the authority have notified or intend to notify another local housing authority under section 198 (referral of cases), they shall at the same time notify the applicant of that decision and inform him of the reasons for it.(5) A notice under subsection (3) or (4) shall also inform the applicant of his right to request a review of the decision and of the time within which such a request must be made (see section 202).(6) Notice required to be given to a person under this section shall be given in writing and, if not received by him, shall be treated as having been given to him if it is made available at the authority’s office for a reasonable period for collection by him or on his behalf. (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.[10]Section 188 (which concerns the interim duty of the local authority to accommodate in case of apparent priority need) is in the following terms:(1) 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.(2) The duty under this section arises irrespective of any possibility of the referral of the applicant’s case to another local housing authority (see sections 198 to 200).(3) 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 maysecure that accommodation is available for the applicant’s occupation pending a decision on a review.[11]The three relevant provisions of the Code are paragraphs 6.16, 7.5 and 10.35.[12]Paragraph 6.16 is as follows:
“Housing authorities should deal with inquiries as quickly as possible, whilst ensuring that they are thorough and, in any particular case, sufficient to enable the housing authority to satisfy itself what duty, if any, is owed or what other assistance can be offered. Housing authorities are obliged to begin inquiries as soon as they have reason to believe that an applicant may be homeless or threatened with homelessness and should aim to carry out an initial interview and preliminary assessment on the day an application is received. An early assessment will be vital to determine whether the housing authority has an immediate duty to secure accommodation under s 188 (see Chapter 7 for guidance on the interim duty to accommodate). Wherever possible, it is recommended that housing authorities aim to complete their inquiries and notify the applicant of their decision within 33 working days of accepting a duty to make inquiries under s 184. In many cases it should be possible for authorities to complete the inquiries significantly earlier.”
[13]Paragraph 7.5 relates to the duty to provide interim accommodation and is as follows:
“The threshold for the duty is low as the local authority only has to have a reason to believe that the applicant may be homeless, eligible for assistance and have a priority need. (See paragraph 6.5 for guidance on the ‘reason to believe’ test.)”
[14]Paragraph 10.35 is as follows: "Former asylum seekers. Former asylum seekers who have been granted refugee status or exceptional leave to remain, humanitarian protection, or discretionary leave will be eligible for homelessness assistance and may be at risk of homelessness as a result of having to leave accommodation that had been provided for them (e.g. by the National Asylum Support Service) in the period before a decision was reached on their asylum claim. They may well have experienced persecution or trauma in their country of origin or severe hardship in their efforts to reach the UK and may be vulnerable as a result. In assessing applications from this client group, housing authorities should give careful consideration to the possibility that they may be vulnerable as a result of another special reason. Authorities should be sensitive to the fact that former asylum seekers may be reluctant to discuss, or have difficulty discussing, their potential vulnerability, if, for example, they have experienced humiliating, painful or traumatic circumstances such as torture, rape or the killing of a family member.”[15]I will return to these matters below, but to set the context for the arguments it is necessary to see what Hickinbottom J concluded in Kelly, Mehari & JI. His decision was not appealed and plainly, in those circumstances, the Council needed to review its procedures to ensure that the criticisms in his judgment were met. Mr Hardy, when he gave evidence before me, confirmed that there was internal consideration of the judgment, as one would expect.[16]The evidence in that case was that the Council had the "heaviest workload of any housing authority in the country, with over 5,000 applications per year." [11] I have no reason to suppose that the position is any different now. Mr Hardy confirmed that "between 30 and 50 a day or more" homeless applications or enquiries are madeto the Council's homeless offices. There was evidence in R (Aweys & Others) v Birmingham City Council (see [4]) about the size of the problem in Birmingham. The way in which homelessness applications were dealt with in September 2009 was set out in the judgment at in Kelly, Mehari at [11]-[12].[17]Mr Kelly, aged 22, presented himself at a Neighbourhood Office with evidence (it was conceded eventually) that gave the Council “reason to believe” that he was homeless and had a priority need for accommodation because of his mental condition. On the day he presented himself (11 September 2009), a Homeless Officer carried out certain enquiries and concluded that he had no priority need. The contention of the Council was that this was a section 184 decision that was flawed. Hickinbottom J rejected that contention and held that it was a decision not to provide Mr Kelly with accommodation under section 188. However, he concluded that the Homeless Officer (and others the Homeless Officer consulted) failed to engage with section 188 at all and to address the correct criteria. As Hickinbottom J concluded, if the Homeless Officer had come to the only reasonable conclusion (namely, that there was reason to believe that Mr Kelly was homeless and in priority need for accommodation) that would have triggered the section 188 duty to provide interim accommodation (until the section 184 enquiry had run its course) [20].[18]Hickinbottom J concluded, on the basis of Mr Kelly’s case, that there was “strong evidence … of a system failure” [21].[19]One notes, in passing, that the argument addressed on behalf of the Council was that the Homeless Officer had attempted to make a section 184 decision on the day Mr Kelly presented himself to the Neighbourhood Office.[20]Mr Mehari was someone who presented himself at a different Neighbourhood Office on 16 September 2009 in circumstances which plainly (and it was so conceded before Hickinbottom J) gave reason to believe that he and his family were, or may have been, homeless or threatened with homelessness, and in priority need because of his young son. The evidence demonstrated that the Homeless Officer did not have section 188 in mind.[21]Evidence of another case (that did not require a decision by Hickinbottom J) confirmed that section 188 was not considered when it should have been.[22]All this led to the overall conclusion at paragraph 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.”
[23]Mr Hardy accepted in his evidence that this case reflected "quite a devastating critique of the council's approach to the provision of interim accommodation". Plainly, as I have said, it needed to be addressed seriously. In essence, it appeared that, at least in the cases that came before Hickinbottom J (and more widely), section 188 was being bypassed. (In Aweys & Others it should be noted that there had been evidence that the Council was using what was called the 'Home Options Scheme' - a scheme designed to try to reduce the incidence of homelessness - to defer consideration of a homeless application: [4(ii)] and [25].)

The events after the judgment in Kelly, Mehari and the direction of 24 February 2010

[24]I received some evidence (it has to be said, not very satisfactory evidence) about the steps taken by the Council to address these matters in the period after the judgment was given. Mr Hardy, who is number 3 in the Department, was apparently not necessarily involved at every stage and the disclosure process was sufficiently piecemeal for me not to feel that the full audit-trail prior to Mr Hardy’s instruction has been revealed. At the end of the day, there is no doubt that the instruction given by Mr Hardy was unlawful if implemented. Because of the allegation of misfeasance in a public office, I am obliged to assess his state of mind concerning that instruction (see paragraph 40 et seq). Otherwise, matters could be left where they are in the sense that the illegality had been exposed and recorded and, to that extent, the background to the emergence of the illegal instruction is irrelevant.[25]The direction issued was in an e-mail sent to two group addresses, one being the Neighbourhood Office Service Delivery Managers and the other being the Neighbourhood Office Service Delivery Officers. It is said on behalf of the Council that this would have comprised some 40 people in all who would have been expected to “cascade” this instruction to the frontline staff who would deal with applicants coming through the Neighbourhood Office doors. The e-mail was in these terms:
“Dear All Please note with immediate effect all single homeless who are presenting as homeless/roofless and Domestic Violence victims requiring refuge must be referred to the appropriate funded support service. We should not be completing a homeless application. For single person under 25 they should be referred to St Basils .... For vulnerable singles over 25 they should be referred to Midland Heart .... Victim of Domestic Violence requiring a place of refuge should be referred to Trident .... Victims of Domestic Violence who are able to stay at home but require support should be referred to Birmingham & Solihull Women's Aid More detailed guidance notes are being produced and will be distributed in advance of the briefing session next week Wednesday, but the above arrangements above already should be in place. Monitoring of the arrangement is in place and if there are any problems with referring to the agencies, please advice (sic) myself or Saeed Akram.”
[26]The telephone number of each of the "funded support services" identified in the e-mail was set out. Mr Khazai's application was dealt with on the basis that he was a "vulnerable single over 25" and was thus referred to Midland Heart. A recent Audit Commission report (which can be found on the Internet) describes 'Midland Heart Housing Association' as follows:
“Midland Heart was formed in April 2006 following the merger of Keynote and Prime Focus housing associations. It provides housing services mainly in Birmingham, Coventry, Leicester, Stoke on Trent and Wolverhampton and operates in 58 local authority areas. It manages around 27,868 homes, 6,700 care and support units (bed spaces and flats), offers homes for sale and also provides community investment services.”
[27]The failure of this direction to measure up to the requirements of Part 7 of the Housing Act is obvious. In the Acknowledgment of Service, prepared by Mr Bryan McGuire QC, the following points are acknowledged as reflecting and demonstrating its illegality:
“(a) whilst there is a proper place for funded support services, and for identifying housing options, it is not a substitute for the duties owed under Part 7. (b) A housing application should be completed. (c) An interim duty arises to accommodate under Part 7 of the Housing Act 1996 in circumstances there set out, and do so pending completion of enquiries as to what duty is owed if any. (d) No formal words or actions are required to trigger consideration of whether any Part 7 duty is owed. (e) The position in law is that all single homeless persons (etc) are entitled to be considered under the homelessness provisions. It is unlawful to refuse to do so.”
[28]The reference in the e-mail to a “briefing session next … Wednesday” was to a Powerpoint demonstration by Mr Hardy. In fact a similar briefing session also took place on 26 February.[29]The factual case advanced on behalf of the Council prior to the hearing before me was that the error in the e-mail “was appreciated about as soon as it was made”: see the Acknowledgment of Service dated 9 April 2010, the Answer to the Part 18 request dated 7 July 2010 and the Detailed Grounds for Resisting the Claims dated 15 July 2010. The contention was that Mr Hardy said at the two briefing sessions that the instruction “was wrong” and that he made it “very clear that his intention had been to try to prevent homelessness by using specialist agencies but this was to be done in parallel with the taking of a homelessness application”.[30]That was a clear-cut assertion. However, when Mr Hardy gave evidence he said that there was no specific reference to the incorrectness of his e-mail at the briefing on 26 February and, it seems, at the subsequent briefing. All that was said by him at those briefings was that, whatever actions were being taken to try to prevent homelessness by the parallel process to which I have referred (see paragraph 29), it was to be understood by those dealing with applications that "a key element [was that] if someone wishes to complete and present as homeless then we should be taking that application" - in other words, dealing with the application as an application. Mr. Hardy said that was made clear verbally to those people who attended that "we had to take homeless applications" and that the message conveyed was that "under no circumstances should you not be taking homeless applications."[31]This was not a very promising start to the credibility of the Council's factual case. Furthermore, an e-mail was produced during the hearing which was sent by Vicki Pumphrey (who, as Homeless Policy Manager, was No. 2 to Mr Hardy) on the afternoon of 26 February (at 14.32) in which she referred to his e-mail of 24 February and said that "non-compliance" with that e-mail "is being monitored by Saeed and the Team Leaders." The comment made by Mr. Nabi, with justification, is that that hardly looks like a retraction of the earlier e-mail. When asked about it in cross-examination Mr. Hardy's response was that her e-mail conveyed to him (and was thus presumably intended to convey to its recipients) that the monitoring involved “looking at how we make the referrals into supporting people funding services which we wouldn't have stopped in terms of referring on for support”, but the issue was "about running that in parallel with taking homeless applications." It is fair to say in that context that the second paragraph of Ms Pumphrey's e-mail reads as follows: "Telephone advice should also include reference to the appropriate funded support services." (My emphasis.) This could be taken as suggesting that referral to “the appropriate funded support services” was an option rather than a mandatory primary requirement, although it does have to be said that Mr. Hardy’s e-mail (which her e-mail endorses) was in apparently prescriptive terms.[32]I am unable to conclude that an effective retraction of the e-mail was effected at either of these briefing sessions and indeed Mr. Hardy accepted that that was the inevitable conclusion. It is not disputed that Mr. Khazai's case was handled by those considering it in accordance with Mr. Hardy's e-mail and, accordingly, until he was (as he was in due course) offered interim accommodation pending the outcome of the inquiries into his case, he had been treated unlawfully by the Council.[33]Mr Hardy accepted in his evidence that the first e-mail retraction of his earlier e-mail was sent on 17 March when he knew of Mr Khazai's judicial review application. The e-mail, which was sent to the same distribution list as the e-mail of 24 February together with several additional people, said this, having referred to the e-mail of 24 February: "For clarification again, under no circumstances should a person be refused the completion of a homeless application or turned away. The purpose of referring homeless people to the Single Points of Access is to offer specialist preventative and housing options. This referral process can be undertaken in parallel with the completion of a homeless declaration. Every person approaching as homeless on the day requesting interim accommodation will be contacted with a decision that same day.”[34]Despite the terms of this e-mail the situation appears to be that a further, much more unequivocal, retraction was required on 7 July 2010 (only a few weeks before the hearing before me) before the effect of the e-mail of 24 February was truly neutralised.[35]I do not consider it necessary to refer to other features of the chronology in support of the proposition that this sequence of events hardly represented a satisfactory response to an instruction said to have been recognised early as wrong and unlawful. Quite why it was dealt with in such a way has not been fully explained to me. Mr Nabi submits that it evidences not just a simple error on the part of Mr Hardy, compounded by a somewhat lackadaisical approach to rectifying that error, but a more serious underlying decision made by him, in effect, cynically to ignore the legal requirements of Part 7 because of the adverse financial consequences that might flow from too many acceptances by the Council of homeless applications. It is this essential case that is advanced as constituting the commission of the tort of misfeasance in a public office by Mr Hardy for which, it is argued, the Council is vicariously liable.[36]I will turn to that argument.

The law relating to misfeasance in a public office

[37]There is no need for an extensive recitation of the law. There is really only one aspect of the law relating to misfeasance in a public office that falls directly for consideration in this case, namely, the state of mind of Mr Hardy at the time he issued his instruction.[38]Authoritative statements concerning this aspect of the law are to be found in Three Rivers DC v Bank of England (No 3) [2003] 2 AC 1. Lord Steyn (at p. 192) said that it must be proved that the public officer acted with a "state of mind of reckless indifference to the illegality of his act" and Lord Hope of Craighead put the matter this way (at p. 252):
“Recklessness is demonstrated where it is shown that the public officer was aware of a serious risk of loss due to an act or omission on his part which was unlawful but chose deliberately to disregard that risk. That is sufficient to establish that he did not have an honest belief in the lawfulness of the conduct which, to his knowledge, gave rise to that risk. Recklessness about the consequences, in the sense of not caring whether the consequences happen or not, will satisfy the test. In this context there is no additional element of dishonesty or bad faith that requires to be satisfied.”
[39]In Southwark LBC v Dennett [2008] HLR 23, the Court of Appeal re-emphasised the characteristics of the state of mind required to establish the tort. May LJ said (at [21]), for example, that "[mere] reckless indifference without the addition of subjective recklessness will not do" and added the observation that "[an] institution can only be reckless subjectively if one or more individuals acting on its behalf are subjectively reckless, and their subjective state of mind needs to be established." In that case it was said ([22]) that the illegal act of the council’s officer might have given rise to the inference of subjective reckless indifference, but it was “not a necessary inference … [there] are other possibilities of which the strain of overwork or incompetence are two.”[40]The issue, therefore, is, as I have said, Mr Hardy’s state of mind at the material time. He was, in my view, uncomfortable in the witness box and repeated the mantra that the procedures foreshadowed in his e-mail were intended to run in parallel to the ordinary Part 7 processes. He was unquestionably a longstanding, loyal, employee of the Council who had worked for nearly thirty years in a Department that, at least during the period with which this case is concerned and almost certainly for much longer, faced unique management problems because of the volume of applications made. He said that he chose to work in this area because it was something of importance to him.[41]He said in his evidence that his e-mail was composed without input from anyone else or, as I understood him, as a direct result of the internal processes of review that had taken place following the decision in Kelly, Mehari & Others to which I will refer later. That was modified to some extent when various versions of a policy document were revealed (see paragraph 61 et seq) but, nonetheless, his essential position was that he took the initiative of sending his e-mail without reference to others. I am very surprised that one person should take upon himself responsibility for articulating some fundamental approach to considering applications by those alleging homelessness when the Council, as a body, had been criticised recently in a judgment of this court about its approach to such applications. There are two possible explanations: either Mr Hardy was not being frank about the full involvement of others in the internal processes and that there was indeed an “institutional” decision (involving others in the internal structure) to issue the direction in the e-mail; or he took the essential initiative himself without taking direct advice from others before he did so and without anyone “proof-reading” the e-mail or checking it for accuracy and validity. If it was the former, it would be difficult to understand how the illegality of what was contained in the e-mail could have been overlooked, particularly if legal advice had been taken during the processes. If it was the latter then, despite his long experience in the field, it is at least possible to see how infelicitous drafting could lead to conveying an unintended message.[42]As I have indicated before (see paragraph 24), the disclosure of the documents evidencing the decision-making processes after the Kelly, Mehari case has not been very satisfactory. However, if one assumes that the duty of candour has now been discharged, nothing has been revealed that would support the conclusion that there was an “institutional” decision effectively to ignore the Council’s Part 7 responsibilities in the way that the e-mail of 24 February seems to do. I say that despite the matters to which I will refer in paragraph 61 et seq below. To that extent the e-mail does look like essentially the product of one person: indeed the response to it within the Council (see, e.g., Deborah Moseley’s internal note of 16 March, where she speaks of “John’s e-mail”) suggests that it was seen as a personal initiative, albeit one emanating from the Interim Head of Housing Need and, accordingly, one to be followed by relevant staff.[43]Did Mr Hardy’s state of mind constitute “subjective recklessness” as defined in the authorities to which I have referred? He said that he thought what he was saying in the e-mail was simply a way of making the best use of resources and, as he repeatedly said, the intention was to run that process in parallel with the normal statutory process of taking a homeless application where appropriate. There is no doubt that this was not what the e-mail said, but there is, in addition to Mr Hardy’s repeated assertions in the witness box (which were consistent with the position taken in the Acknowledgement of Service and other pre-hearing documentation) concerning the parallel process, the sentence in Miss Pumphrey’s e-mail (see paragraph 31 above) that arguably supports the proposition that the e-mail was not intended to suggest that Part 7 applications were not to be taken at all. That leads me to the view that, whatever was in Mr Hardy’s mind at the time, it was not of the nature of the bad faith and reckless indifference to the illegality of what he was putting forward necessary to found the tort of misfeasance in a public office. It is a high threshold that needs to be crossed to establish the requisite mental element: it is higher than the mental element involved in merely making a mistake, even a significant one. I am not satisfied on the evidence that it has been passed in this case. Whilst, as I have said, Mr Hardy was (unsurprisingly) uncomfortable in the witness box, I thought he was telling me the truth when he said that he did not intend the e-mail to read in the way it undoubtedly reads. It would have been a particularly brazen act to direct the frontline staff to ignore well-known statutory provisions. It seems to me that this was the product of oversight and ill-considered drafting than anything more sinister.[44]That conclusion means that I do not have to consider whether Mr McGuire’s submissions, based on O’Rourke v London Borough of Camden [1998] AC 188, that the tortious remedy afforded by misfeasance in a public office is not available when the issue is whether Part 7 has or has not been followed. Whilst, for my part, I would be reluctant to conclude that a claim for misfeasance in a public office could never be brought in a situation that reflects a breach of Part 7, the circumstances in which such a claim could successfully be brought would, in my view, be extremely limited. There is also the obvious danger of permitting such a cause of action to circumvent the normal process of challenging a breach of the requirements of Part 7: cf. the observations of Judge LJ, as he then was, in Thacker v Crown Prosecution Service (1997) CAT 2149, quoted by Tugendhat J in Carter & Others v Chief Constable of Cumbria Police [2008] EWHC 1072 (QB) at paragraph 30. At all events, as I have said, the issue does not arise here.[45]I have dealt with this issue as the primary issue because it is plainly the most serious allegation made in these proceedings. It has arisen directly in Mr Khazai’s case. Whilst there are some parallels between the contentions arising in certain of the other cases (see paragraph 67), the issue is determinative of Mr Khazai’s case in the sense that any relief to which he might be entitled by way of damages or compensation will be restricted to that applicable to a pure breach of the requirements of Part 7, rather than any remedy associated with the tort of misfeasance in a public office. I will deal with the issue of whether a declaration is required later (see paragraphs 77-78).[46]I will turn to the other cases, particularly in the context of what is said to have been a “same day” policy so far as determining homeless applications was concerned.

A “same day” policy?

[47]There is no doubt that a blanket “same day” policy, which requires a decision on the homeless application and, in consequence, the interim accommodation issue all in one day would be unlawful. There is a wide spectrum of circumstances in which applicants who claim to be homeless put forward their claims. As with many situations in which ultimately a judgment has to be made, an experienced eye may perhaps be able to see the merits or otherwise of certain applications very quickly. However, as Mr Hardy himself acknowledged, it would only be “in the most straightforward of cases that a decision can be reached on the same day as the application itself” and that in the majority of cases some investigations would be called for because the staff would not have the necessary evidence and information available. Given the low threshold for the provision of interim accommodation (see paragraph 13 above), that must be so. How long and how extensive the enquiries may be will, of course, depend on the circumstances of each case. It is clear that the Code of Guidance envisages that some enquiries will be more extensive than others (see paragraph 12 above), but that “an initial interview and preliminary assessment” should ordinarily be carried out on the day the application is received.[48]The foundation for the suggestion that a “same day” policy was in operation during the material period lies in the way the cases of Mr Mirghani and Mr Azizi were dealt with and in the light of the way that certain policy documents revealed during the disclosure process were formulated. It is right to say, as Mr McGuire submits, that the complaint made in this regard is different to the complaint made in Mr Khazai’s case. I will return to the issue of the appropriateness of the joinder of these various cases (and the case of Ms Ibrahim) later (see paragraphs 73-76). Mirghani[49]Mr Mirghani is Sudanese, arrived in the UK in 2004 and sought asylum. Eventually, on 4 January 2010, he was granted leave to remain in the UK. Until then he had benefited from asylum support, including the provision of accommodation, through the National Asylum Support Service (‘NASS’). As a result of the grant of leave to remain, the provision of NASS accommodation would come to an end on 18 February and on that day he approached the Council as a homeless person seeking assistance. It should be said that in addition to suffering from post traumatic stress disorder he also suffers from depression, back pain and ulcer and bowel problems.No assistance was offered to him that day and he was told to return the following day, a pattern that was repeated on several occasions until on 4 March 2010 his application for assistance was accepted. However, the Homeless Officer who considered his application, in a letter running to 3 pages, purported to decide the issues raised by section 184 (see paragraph 9 above) and section 188 (see paragraph 10 above) at the same time. She decided that he was “eligible for assistance and homeless”, but that he did not have a “priority need”. She said that she considered his medical position, but concluded that it did not render him vulnerable. She made no reference to his status as a former asylum seeker (see paragraph 14 above.) No interim accommodation was offered because, it would seem, the whole process contemplated by section 184 was completed there and then and, accordingly, section 188 did not arise. That the Homeless Officer intended to deal with the section 184 issues is evidence by the attention she drew in her letter to the right to seek a review of her decision under section 202, the obligation to do so arising under section 184(5). Although the decision of the Officer was communicated to Mr Mirghani by telephone, the decision letter was addressed to his asylum support accommodation which he had already left and he did not receive it until 25 March when it was faxed to his solicitors.[50]Given his former asylum application and his successful application for leave to remain in the UK, taken against the background of his health problems, it is difficult to see on what basis he could not be said to be both homeless and in priority need. He instructed solicitors who threatened judicial review proceedings unless interim accommodation was provided and interim accommodation was then provided by the Council.[51]By letter dated 17 March Mr Mirghani was given Notice to Quit his interim accommodation on 24 March on the basis that the “Council [had] discharged its duty to provide accommodation under Section 188, 190, 193, 200 of the Housing Act 1996” and he was evicted from his interim accommodation on 24 March. He found temporary accommodation for that night and the following day he saw his solicitors who spoke with the Defendant’ Homeless Review Team. It then emerged that the homelessness decision referred to above had been sent to his former address.[52]His solicitors that day requested interim accommodation pending a review of the priority need decision (under section 188(3)) and identified the defects in the Homeless Officer’s decision. By letter communicated to his solicitors shortly before 6 p.m. that day, the Council accepted that there appeared to be a “deficiency or irregularity” in the decision but refused to provide interim accommodation pending the review. One reason given was that because he had applied for State benefits and housing assistance he had demonstrated an ability “to access services and [had] managed to do this whilst having no settled accommodation of his own.”[53]On 26 March the present proceedings were instituted and Mr Mirghani was then granted interim accommodation pending the review. The decision following the review was set out in a letter dated 22 June when the Council notified Mr Mirghani that it accepted that he was in priority need and was owed the full housing duty.[54]Mr Mirghani has, of course, now achieved all he could have achieved. The point of wider interest than his own case that is advanced in these proceedings is that the initial decision on 4 March was, it is suggested, the product of the Council’s alleged “same day” policy. I will return to this shortly. Azizi[55]Mr Azizi is an Iraqi national and sought asylum following his arrival in the UK. He was granted indefinite leave to remain in the UK on 5 January 2010. As in Mr Mirghani’s case, his asylum support, including accommodation, would cease as a result and he was notified that his accommodation would cease to be available to him on 8 February.[56]Mr Azizi has suffered chronic back pain for 10 years, for which he is being treated with prescription painkillers, physiotherapy and psychological support under a multidisciplinary pain clinic. He is in constant pain, cannot walk far and walks slowly and clumsily. He frequently has to lie down to relieve the pain. He also suffers psychological consequences of his experience in Iraq before seeking asylum which he finds difficult to discuss.[57]Six days before his NASS accommodation ceased to be available to him, on 2 February, he presented himself as homeless to the Council, but was told to return the day he was to be evicted. He sought advice from Shelter and in the early evening of Friday 5 February Shelter sent by fax to the Council a written homelessness application on his behalf with supporting letters from his GP and the multi-disciplinary pain clinic as evidence of his back condition. Shelter requested that interim accommodation be provided whilst enquiries under section 184 were carried out.[58]On Monday 8 February a representative of Shelter spoke to Ms Deborah Mosley who said that Mr Azizi was not in priority need and, accordingly, the Council could not assist him. That evening Simon J made a without notice order requiring the Council to provide suitable accommodation for Mr Azizi for the nights of 8-9, 9-10 and 10-11 February, giving the Council liberty to apply to set aside or vary the order on 12 hours’ notice. A little later a letter setting out the reasons for Ms Moseley’s decision was faxed to Mr Azizi’s solicitors. I need not set it out in detail, but it is plain that her conclusion was that he was not “in priority need” and accordingly no duty to provide interim accommodation arose. She concluded that he was entitled to go on the Housing register as an applicant.[59]Again, it is submitted on his behalf that this evidences the implementation of a “same day” policy.[60]In his case, he has found private accommodation and, accordingly, it is argued strongly that his claim is entirely academic. I will return to that matter later.

Other evidence concerning the alleged “same day” policy

[61]As a result of a Freedom of Information request made by Mr McIlvaney, the solicitor acting for all the claimants in the present cases, the internal Council documents setting out how Homeless Officers were instructed to deal with applications were revealed. Mr Hardy appeared to accept that he had had some hand in drafting them. The two documents revealed were headed respectively “Procedure: Roofless Customer Handling Procedure” (which was effective on and from 8 February 2010) and “Procedure:
“Homeless on the Day”
Procedure”. The first document had at its foot the words “Interim Procedure for Homeless on the Day – Version 2” and the second had the same words save that it was identified as “Version 3”. These documents emerged as part of the process of internal review of procedures following the Kelly, Mehari case.[62]Version 1 was also produced during the hearing and, though not materially different from Versions 2 and 3, it was obviously not the extant version at the time that any of the material decisions were made in these cases. Mr Hardy confirmed that there would have been input from lawyers into the process. He was unable to say precisely when Version 3 was promulgated, save that it would have been some time in March.[63]The focus of the questioning of Mr Hardy by Mr Nabi was in relation to Version 3 and I will, therefore, confine myself to reference to that document.[64]The document draws attention to the two formal channels available for those who are “Homeless on the Day” to approach the Council. The first is via the Neighbourhood Office (‘NO’) network which allows for a face-to-face interview with the applicant and the second is by telephone during non-office hours. The relevant part of the document relates to the procedure during office hours and I will set out the material parts upon which the argument has been founded:
“ … Procedure – Office Hours Neighbourhood Advice and Information Service NAIS will offer an initial interview at reception to any client presenting as “homeless on the day” within 15 minutes of arriving at the NO. An interview with an advisor will be guaranteed within 30 minutes of being interviewed at reception. This specifically relates to customers who are “homeless on the day” and seeking interim accommodation from BCC. NAIS will complete a homeless application with all who are “homeless on the day” customers unless a homeless application has already been taken whereby a temporary accommodation request will be completed and NAIS will ensure that: A The customer has an address to which they can return while they await the decision relating to their application and that they are returning to this address at their own request B That the customer is advised that they should remaining in the NO pending the outcome of their application In relation to “A” above, NAIS will independently confirm, where possible, the availability of the address for the customer to return to while they await the decision on their application and record this on the appropriate database. If the confirmation cannot be obtained NAIS must record the details of the address the customer will return to and the customer’s decision to return to this address. Upon completion of the Homeless Application form NAIS will complete a CTB HB application with every customer in line with previously agreed procedures. NAIS will complete a Homeless Application form with every client that presents themselves as in need of interim accommodation at a NAIS location. NAIS will notify the Homeless Duty Officers of all households approaching as “homeless on the day” after 15:00 each day via the Homeless Service dedicated telephone number 464 7593 – this will be answered within 6 (six) rings and allow the Homeless Service to ensure appropriate staff ability to manage and decide on all applications received from NAIS, regardless of time. Homeless Team The Homeless Team will respond to NAIS within 60 minutes of receipt of the application confirming receipt and the name and contact telephone number of the officer managing the application. The Homeless Officer will, where possible, indicate to the NAIS officer the length of time they believe it will take to make a decision on the application. The Homeless Team will aim to make decisions on all applications before 17:15 Monday – Thursday and 16:15 Friday, however, where this is not possible and the customer is remaining at the Neighbourhood Office they will inform NAIS to allow for the continued management and support of the customer until a decision has been made. The following test under S188 (1) Housing Act 1996 will be applied. 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 the Part. … Following the interim duty decision, the duty officer will telephone the customer to notify of the S188 decision and: If interim accommodation is agreed, the approved request will be forwarded via the homeless database to Temporary Accommodation team who will arrange the provision of emergency accommodation. If interim accommodation is refused, the decision will be communicated directly to the customer verbally. A copy of the S184 decision letter will be saved to the database for NAIS to access, the original letter will be sent direct to the customer by 1st class post. ….”
Procedure – Office Hours Neighbourhood Advice and Information Service A The customer has an address to which they can return while they await the decision relating to their application and that they are returning to this address at their own request B That the customer is advised that they should remaining in the NO pending the outcome of their application

Homeless Team

[65]The argument advanced by Mr Nabi and Mr Presland is that the whole process envisaged by this document, namely, of endeavouring “to make decisions on all applications” before the times specified, communicating the interim accommodation decision and then the saving of “a copy of [the section 184] decision letter” to the database reflects a concertinaed “same day” approach to all features of the homelessness application. Mr Nabi contends, with obvious justification, that if an adverse decision was made in relation to interim accommodation, it is almost inevitable that the section 184 decision would also be adverse.[66]I am bound to say that a cursory reading of the final paragraph quoted above might support Mr Nabi’s argument. However, when looked at in the context of the document as a whole, and focusing more fully on what it says, I do not think that that is what is intended. In his response to the argument, Mr McGuire emphasised first that the document was intended to deal with “Homeless on the Day” cases and not with homelessness applications generally. Second, he said that the proper test under section 188 is clearly set out. What he submits is that, if that test is followed through conscientiously and an applicant does not pass the low threshold for the provision of interim accommodation, there is nothing wrong with coming to the section 184 conclusion at, in effect, the same time. Third, he says that there are other features of the document (to which I have not myself referred) that distinguish clearly the parameters of the section 184 decision from those of the section 188 decision.[67]I consider that these submissions are essentially well-founded, though I do think that there is scope for improving the drafting of this document. It may already have been modified in the meantime, for all I know. However, on a proper analysis, I do not think it supports the contention that a “same day” policy has been adopted by the Council across the board, though one can see, if only through the decisions actually made in the cases of Khazai, Mirghani and Azizi, that there appears to be an internal ethos of endeavouring to jump as many hurdles as quickly as possible in dealing with a “Homeless on the Day” applicant (see also paragraph 19 above). That approach could well cause (and indeed probably has in those cases caused) a wrong decision to have been made.[68]I have no doubt that, if it has not occurred since March this year, a thorough review of the procedures adopted should be undertaken with the benefit of high level legal advice. Whilst I do not underestimate the practical difficulties faced by the Council in fulfilling its statutory duties, the nature of those statutory duties is now well-established and ought to be capable of being applied without the significant mistakes made in the cases before me.[69]I should, perhaps, add that Mr McGuire did submit that the production of these various documents “fed into” Mr Hardy’s formulation of the e-mail of 24 February. I did not understand Mr Hardy to say that he did have these documents specifically in mind, although it would be difficult to believe that he was not aware of the thinking that went into them because, of course, he was himself involved in their production and they went to the issue raised in the e-mail. For my part, however, I have concluded that his state of mind was not of a nature to justify a finding of misfeasance in a public office without specific reliance upon these emerging documents. In essence, I was prepared to accept his evidence that he did not intend to draft an e-mail that set out an approach that was unlawful.

Ms Ibrahim’s case

[70]Ms Ibrahimis an Eritrean national who arrived in the UK in August 2007 and sought leave to remain. Leave was granted in January 2008. She obtained accommodation under an assured shorthold tenancy which consisted of a house in multiple occupation. The aim of her landlord was to provide housing to vulnerable individuals. On 31 January 2010 her daughter arrived in the UK as part of a family reunion and came to live with her. This breached a term of her tenancy agreement that she could not take lodgers or permit any other person to reside at the premises and she was required by a letter of 1 February 2010 to leave within a week.[71]On 2 February she attended a neighbourhood office with a copy of the letter from her landlord and sought assistance under the Act stating that her accommodation was no longer suitable. The Homeless Officer referred her to the Council’s Private Tenancy Section and the Private Tenancy Officer wrote a letter to the landlord on 3 February stating that she could not be evicted without a court order. It was suggested that the notice given was invalid. It is clear from the internal note of the Private Tenancy Officer that it was not the decision of the Council that her accommodation was suitable for her and her daughter in the long term, merely that that her landlord could not evict her illegally.[72]Solicitors she consulted faxed a pre-action protocol letter dated 5 February (a Friday) asking the Council to investigate the application for assistance under section 184 of the Act immediately and to provide interim accommodation pursuant to section 188 pending investigation and notification of the decision. By a letter dated 8 February (the Monday) the Council indicated that a homeless interview had been arranged for 17 February, but no explanation was provided for the delay. The issue of interim accommodation was not referred to and as a result she issued proceedings and obtained interim relief from Hickinbottom J on 17 February. By letter dated 25 March the Council accepted that it owed Ms Ibrahimthe full housing duty under Part 7.[73]Mr Nabi submitted that her case evidences a common theme, namely, that there is an intent on the part of the Council wherever possible to avoid its obligations under Part 7.[74]Mr McGuire submitted that this case does not evidence any such theme. It was a simple case of the Council misinterpreting the nature of the assistance Ms Ibrahim was seeking in the first instance. This was reflected in the view Beatson J took on the application for permission (which was refused on the papers) when he said this: “The defendant has agreed to provide the claimant with suitable interim accommodation pending the determination of her assistance under Part 7 of the Housing Act 1996. It appears there was a misunderstanding [about what] the claimant was seeking. Since, once this was clarified, a homeless interview was arranged within 9 days and the claimant was not at that time homeless, it is not arguable that the defendant “is unlawfully continuing to defer the consideration of its duties” under Part 7. The application is therefore moot”.[75]I am inclined to agree with Mr McGuire that this case adds nothing to the picture created by the other three cases and I respectfully agree with Beatson J’s analysis. I cannot, for my part, see that any relief is necessary in this case and that pursuing it is purely academic. Whilst I can well understand why Wyn Williams J thought from a pragmatic point of view that it was sensible to list the renewed oral application for permission at the same time as the other three cases, there is not, in my view, a common theme that, now having had the benefit of sustained analysis, would have warranted such an order.[76]I do, however, consider that hearing the other three cases together was entirely justified, both for reasons of economy and because, whilst not identical, they each raised similar issues.

Should there be declarations in the other cases?

[77]The circumstances in which a declaration may be given when a claim has, in the event, become academic are well-known: see, e.g., Fordham, Judicial Review Handbook, 5th edition, paragraph 4.6. I have been referred to Raw v Lambeth LBC [2010] EWHC 507 (Admin) where Stadlen J helpfully reviewed the authorities in this particular context.[78]Mr McGuire has put forward some persuasive submissions in this context and my principal concern about granting a declaration that each of the refusals to grant interim accommodation was unlawful is(a) that it might encourage other claims to be pursued beyond a stage which, in the ordinary course of events, is legitimate and proportionate and(b) that it might discourage applications for a review of an adverse decision through the ordinary statutory processes. The other side of that particular coin, which I see as unique to the present proceedings, is that there has been a significant history of criticisms of the Council in operating Part 7 in the past and a decision of this court only a couple of months or so prior to the material decisions in the present cases which roundly condemned the systemic failure then perceived to be affecting the decision-making processes. A declaration from the court can reinforce the message that the house needs to be put in order and is justified on the basis that it fosters good administration. It is for that reason that I have, on balance, been persuaded to make appropriate declarations in the three cases other than Ibrahim. I do wish to make it absolutely plain, however, that this should not be seen as any encouragement to pursue each and every case in which the Council falls short of its statutory obligations under Part 7 to a full hearing once the failure has been rectified; far from it.

Conclusion

[79]Given the conclusions to which I have come, I would grant permission to apply for judicial review in the cases of Mirghani and Azizi and, permission having previously been granted in Khazai, make appropriate declarations in each of those cases. I do not grant permission to apply for judicial review on the renewed application in Ibrahim.[80]I will receive further submissions in writing from Counsel on the precise form of the order if there is disagreement about what it should be.[81]I would express my appreciation to Counsel for their assistance.

Cited in 1 later judgment