Raw, R (on the application of) v London Borough of Lambeth [2010] EWHC 507 (Admin)

Case No CO/2101/2009

[2010] EWHC 507 (Admin)

IN THE HIGH COURT OF JUSTICE

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 12 March 2010

Before

THE HONOURABLE MR JUSTICE STADLEN

Between

THE QUEEN ON THE APPLICATION OF COLIN RAWClaimant

LONDON BOROUGH OF LAMBETHDefendant

(Transcript of the Handed Down Judgment of

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DAVID WATKINSON (instructed by HARTNELLS SOLICITORS) for CLAIMANT

WAYNE BEGLAN (instructed by LONDON BOROUGH OF LAMBETH LEGAL SERVICES) for DEFENDANT

Hearing Hearing dates: 29 and 30 October

Judgment

[1]This is a claim for judicial review against the London Borough of Lambeth Council in respect of decisions allegedly made in connection with the claimant’s application for accommodation as a homeless person pursuant to Part VII of the Housing Act 1996.

[2]The Council runs a voluntary rent deposit scheme under which an associated agency called Lettings First provides assistance for finding private rented property and offers a deposit if a one year shorthold tenancy can be found. The claimant alleges that the Council operates and applied to him an unlawful policy of not continuing with inquiries into an application for accommodation as a homeless person under Part VII of the 1996 Act if the applicant has been referred to Lettings First to assist in obtaining rented accommodation in the private sector.

[3]In the Judicial Review Claim Form he sought an order quashing the decision not to continue with those inquiries, a mandatory order requiring the Council to continue with them and also to continue assisting him with obtaining rented accommodation under the rent deposit scheme. He further sought declarations that the two decisions(a) not to continue with the inquiries because he had been referred to Lettings First to assist him in obtaining rented accommodation in the private sector and

(b) subsequently not to continue assisting him through Lettings First having decided to continue with those inquiries were unlawful and void. In addition he sought a declaration that the Council’s policy of not continuing with inquiries into an application for accommodation as a homeless person pursuant to Part VII of the 1996 Act if the applicant has been referred to Lettings First to assist in obtaining rented accommodation in the private sector is unlawful and void.

[4]By the time of the hearing matters had developed in such a way as to render otiose the quashing order, the mandatory order and the declarations referable to the Council’s alleged decisions in relation to the claimant which he sought. That is because after the issue of the judicial review proceedings the Council resumed inquiries pursuant to section 184 of the 1996 Act with a view to satisfying itself whether he was eligible for assistance and if so whether any duty and if so what duty was owed to him under the Act. Having declared itself so satisfied by a letter dated 1 June 2009 it accepted responsibility for securing him suitable accommodation pursuant to section 193(2) of the Act. Indeed, as appears below, by letter dated 5 February 2009, that is to say even before the issue of judicial review proceedings on 4 March 2009, the Council accepted that it would continue to process the claimant’s homelessness application. Further in a letter dated 12 October 2009 the Council notified him that “in those circumstances” he was entitled to take advantage of the rent deposit scheme in securing a qualifying offer of accommodation so that the Council might discharge the duty arising under section 193 by virtue of section 193(7B). In due course the Council submitted that the 12 October 2009 letter was merely spelling out what was implicit in the 1 June 2009 letter, a submission which was challenged by the claimant.

[5]Either way it was common ground by the time of the hearing that despite the claimant’s referral by the Council to Lettings First to participate in the rent deposit scheme the Council had continued with its inquiries pursuant to section 184 of the Act and despite continuing those inquiries it also continued to assist him with obtaining rented accommodation in the private sector under the rent deposit scheme. It follows that, as was also common ground, the claimant has no further practical interest in the outcome of his claim for judicial review. The relief sought in the quashing order and the mandatory order has been obtained without the need for an order of the court. For that reason the specific declaration sought that the decisions referable to him were unlawful and void would also serve no useful purpose. The general declaration sought by the claimant that the first aspect of the Council’s policy complained of, namely an alleged refusal to continue with homeless inquiries if an applicant has been referred to Lettings Direct to assist in obtaining private rented accommodation, is unlawful and void would not, if granted, be of any benefit to him or have any direct practical effect on him.

[6]In those circumstances the Council submits that the claim for judicial review in so far as it was not academic before the claim was issued has become academic since it was issued and that there are no exceptional reasons why the court should depart from the normal principle that the court does not decide hypothetical questions.

[7]In response Mr Watkinson who appeared on behalf of the claimant invited me to exercise my discretion to entertain the application for a general declaration and to adjudicate upon it. In doing so he relied on two points. The first to which I refer in more detail below was that it is to be inferred that there are many other people in a similar position to that in which the claimant found himself before the Council agreed both to continue its inquiries and to allow him to participate in the rent deposit scheme, so that the court would have to determine the issue raised in this case sooner or later in another case if I declined to do so in this case.

[8]Mr Watkinson’s second ground was that the operation of the Council’s policy, as he submitted, has the effect that claims for judicial review brought by people in the position of the claimant are always likely to result in offers being made by the Council similar to those made in this case before the claim gets to court with the result that unless the court is prepared to adjudicate on the legality of the Council’s policy in a case which no longer has any practical effect on the particular person who has brought a claim there will never be a mechanism for subjecting the alleged illegality of the Council’s policy to judicial scrutiny.

[9]There is, as it seems to me, an inconsistency between Mr Watkinson’s two grounds. The first proceeds on the premise that the point will have to be decided sooner or later in a case in which the outcome will have a practical effect on the person bringing it so that it might as well be decided now given the costs which have already been incurred. The second proceeds on the opposite premise that it is unlikely that there will ever be a case in which the court has the opportunity to adjudicate the point in circumstances where the adjudication will have a direct effect on or benefit to the person bringing the claim.

[10]In order fully to understand and assess the second ground, it seemed to me necessary for me to understand the facts and background of the dispute and the operation of the Council’s policy. I therefore agreed to hear the substantive arguments on the claim for judicial review de bene esse without prejudice to the question whether I should adjudicate upon the issue raised in the declaration.

The Background

[11]The claimant is 61 years old and has a number of health problems. He lives in a flat at 2 Clarence House, Rushcroft Road in the London Borough of Lambeth, where he has lived since February 1983. It is a flat in a mansion block owed by the Council but licensed and later leased to London and Quadrant Housing Trust for use as short life accommodation for largely single homeless people. The Council terminated London and Quadrant’s lease in August 2000 and brought procession proceedings against the claimant and some 70 other households as unlawful occupiers. The latter raised various matters in defence and the litigation culminated in a decision of the House of Lords in March 2006 in which those defences were rejected. Thereafter a possession order was obtained against the claimant by the Council in the Central London County Court on 28 April 2006.

[12]In a witness statement dated 4 March 2009 the claimant said that the order has not been enforced by the Council but that he has no rights to the flat and is awaiting an eviction notice from the bailiffs. He said that no one has accepted responsibility to repair the flat or the mansion block since 2000 and that both are in poor repair. His bathroom ceiling has partly fallen in and he felt that the question of finding somewhere else to stay was becoming urgent.

[13]The claimant sought legal advice about his situation. He considered the private sector to be a very insecure source of housing both because of the absence of security of tenure after the first six months of a tenancy and because the lack of certainty that Housing Benefit will pay all the rent, for example if the landlord raises it. He was in receipt of means-tested Pension Credit. He said that he was advised that he could apply as homeless under Part VII of the 1996 Act on the basis that he would be owed the main duty to provide accommodation arising under section 193(2) as a 61 year old with various health problems and as such in priority need who was not intentionally homeless. He did not want to go into hostel accommodation if it could be avoided but was advised by his solicitor that he believed that the Council would be happy to leave him in his present flat while he bid for more permanent accommodation on its choice-based letting scheme.

[14]His solicitor wrote a letter to the Council’s homeless persons unit dated 17 October 2008 formally applying for him to be re-housed under Part VII of the Act. The letter referred to the possession order dated 28 April 2006 and asserted that the claimant was actually homeless in that he had no accommodation available for his occupation which he was entitled to occupy. The letter continued:

“So far as temporary accommodation is concerned, I am aware that you would not normally in any event offer such accommodation until eviction was imminent. My client would prefer to continue living in his long standing home until his application is processed and he has made a successful bid on the [choice based lettings] system.”

The reference to temporary accommodation was a reference to the duty of the Council to provide interim accommodation pursuant to section 188 of the Act in certain circumstances. I refer to the relevant provisions below.

[15]On 18 November 2008 the claimant attended the Housing Access Unit with a support worker and handed over the solicitor’s letter. A week later he had an interview with a Housing Options Officer, a Mr Somuyiwa to whom he expressed some anxiety about being housed in some of the estates in Lambeth. In recent years as he had grown older he feared for his personal safety in some of those estates and did not want to be trapped in his home by such fears. Mr Somuyiwa broached the idea of finding him somewhere in the private sector through Lettings Direct. In his witness statement the claimant says that he expressed no great enthusiasm for this but said that he supposed it was worth a try. He maintained that it was not suggested to him that this might be instead of his application to the Council under Part VII of the Act and stated that if there had been any such suggestion he would never have agreed. Further he stated that he had not realised at the interview that the Council operated a choice based lettings allocation policy so that there was no danger in the event of him pursuing his homeless application under Part VII of the Act of his being housed on an estate that made him anxious.

[16]On 5 December 2008 Mr Somuyiwa wrote to the claimant referring to his request for housing assistance from the Council. He wrote:

“Following your request you were advised of the housing options open to you. You have decided to pursue the option of seeking accommodation in the private rented sector, through which the Council will guarantee your rent and pay the deposit. I have completed my inquiries and you have been accepted on the scheme. To facilitate the process I have referred your case to Lettings First – our partner agency.”

[17]On receipt of the letter the claimant was worried that it might mean that the Council thought he did not wish to proceed with his application under Part VII of the Act. Accordingly his solicitors wrote a letter dated 11 December 2008 to the Council stating that Mr Somuyiwa had misunderstood the claimant’s position and that he had not meant to indicate that he did not wish to pursue his application under Part VII. The letter therefore sought confirmation that his Part VII application was being dealt with and that he would receive a section 184 decision in due course.

[18]The claimant was then contacted by Lettings Direct who gave him an appointment to see a private rented tenancy negotiator, a Mr Armah on 7 January 2009. At that interview he was given two documents, which appeared to be in standard form and asked to sign the second. The first was headed Lettings First Acceptance. It confirmed that Lettings First had accepted the claimant for assistance on its rent deposit scheme. It said that Lettings First would assist him to find him a private rented property suitable for him and his family and would pay up to £1500 as a returnable deposit for the property in return for a one year assured short hold tenancy. It stated that the claimant would need to present the letter when he approached an estate agent or landlord to enable them to ring Lettings First if they had any questions about the rent deposit scheme and how it operates.

You can use the deposit to:

[19]The second document was headed Lettings First Rent Deposit Acceptance – Terms and Conditions. The letter was in the following terms:

“1.Your application for housing You have been referred to Lettings First by the Homelessness Prevention and Advice Team. You agree that the many benefits of using the Letting First scheme have been explained to you, including the provision by Lambeth of a deposit which will help you secure suitable accommodation of your choice. You also understand that although you may still join Lambeth’s Housing Register for the allocation of permanent housing, the chances of being made an offer by that route are far lower than if you made a successful homelessness application to Lambeth. By agreeing to seek housing through the Letting First Scheme, you understand (and have decided) that you will not be making, or continuing with a homelessness application to Lambeth or to any other local authority. If, however, you were to become homeless from the tenancy arranged for you then, subject to (a) Lettings First seeking to assist you again and (b) issues of intentional homelessness from that tenancy, you may be able to seek assistance from Lambeth as a homeless person. 2. Your tenancy • The tenancy will be initially for one year • It will be an assured short hold tenancy • The tenancy will be a private tenancy agreement between you and the landlord/agent • Initial sign up will not take place without the agreement of Letting First staff • No sign up will be agreed until full proof of income and proof of identity has been received from you, the tenant • No sign up will be agreed until the landlord/agent has provided relevant safety certificates and proof of ownership and/or authority to rent 3. Your deposit We will pay up to £1500 to your landlord or agent for one year’s assured short-hold tenancy. You can use the deposit to: • Re-negotiate the tenancy at the same property at the end of your first year • To ask for your deposit to be transferred to a new landlord through Lettings First in order to secure another property. Your landlord will be entitled to keep the whole or part of the deposit should you fail to maintain the tenancy by • Causing malicious damage • Causing a nuisance by noise or allowing your family or vistors to cause nuisance • Falling into rent arrears either by not paying the rent yourself or by failing to inform Housing Benefit of any change in your circumstances, or by failing to provide documentation requested by Housing Benefit departments or by Lettings First to sustain your rent payment If this happens and you are unable to re-negotiate your tenancy with the same landlord, or to secure another tenancy because your deposit is used up, the council could deem you to be intentionally homeless and will offer no further assistance either by offering you housing or a further deposit. You are required to sign this letter as confirmation that you have understood and accept the above terms and conditions.”

You can use the deposit to: Although he could not see anything wrong with these letters the claimant was uneasy and said he would seek advice on them before signing them. He showed them to his solicitors who wrote a letter of claim for judicial review dated 19 January 2009 to the Council’s solicitor. The letter referred to the condition in the letter of acceptance for the rent deposit scheme by which, had be signed it, the claimant would have agreed that by agreeing to seek housing through the Lettings First scheme he understood and had decided that he would not be making or continuing a homelessness application to the Council or to any other local authority. The letter asserted that this had at no time been explained to the claimant and that in the light of his consistent demand to be dealt with by Lambeth he would have protested strongly if it had been. The letter pointed out that the Council’s published policy on its rent deposit scheme imposed eligibility requirements which mirror and extend the requirements for a section 193(1) duty to persons who are homeless, eligible for assistance, in priority need and unintentionally homeless while it pointed out that other persons might be accepted “in exceptional circumstances”. It was thus asserted that in a great majority of cases the persons being asked to sign these “terms and conditions” would already have been assessed as owed that duty, albeit the Council it appeared would not have given them a section 184 decision letter telling them so.

[20]This was said to be outrageous “gate keeping”. It was asserted that the duty to assess and to provide interim accommodation to any person who appears to be homeless or threatened with homelessness is unqualified. Reference was made to the Code of Guidance which in paragraph 2.3 stated:

“Housing authorities are reminded that they must not avoid their obligations under Part VII of the 1996 Act (including the duty to make inquiries under section 184 if they have reason to believe that an applicant may be homeless or threatened with homelessness) but it is open to them to suggest alternative solutions in cases of potential homelessness where these would be appropriate and acceptable to the applicants.”

This was accepted by the claimant’s solicitors as an accurate statement of the law. It was asserted that the Council had been avoiding its duties, not suggesting alternative solutions.

[21]The letter continued by calling on the Council to carry out its duty to make inquiries under section 184 in respect of the claimant’s application. It was also called upon to confirm that the terms and conditions that the claimant had been asked to sign had been acceptably amended and that the policy to which they gave expression had been revised to make it in conformity with the law.

[22]By letter dated 5 February 2009 the Council’s solicitor responded. In the letter the solicitor stated that the rent deposit scheme has the advantage that accommodation will be obtained more quickly then by way of a Part VII application. He said that the Council did not understand the claimant’s objection to a condition that by seeking housing through Letting First the applicant will not make or continue with a homelessness application. “Obviously if a person obtains housing through Letting First the person will not be homeless and any homeless application will be redundant. It is explained to applicants that even though they elect to use the Lettings Scheme they can still join Lambeth Housing register. The Council is entitled to have guidelines and criteria in relation to its rent deposit scheme.”

[23]The letter conceded that the scheme is primarily directed towards persons to whom the Council would owe either the full housing duty under Part VII of the Housing Act 1996 or a duty to take reasonable steps to ensure that accommodation does not cease to become available to them. “As you point out however the scheme does expressly provide that other persons will be accepted in exceptional circumstances. It is not correct to say that a person will have already been assessed as owed a duty. When persons are advised by the fully trained staff in the Council’s Options Advice Team and applicants are informed of their legal rights under Part VII of the Housing Act 1996 and other housing options. (sic)”. The letter concluded by expressing regret that the claimant had failed to understand his rights. “In any event this has now been remedied. You have indicated that your client is no longer interested in the rent deposit scheme and wishes to pursue a homeless application.” The letter strongly rejected the assertion that the Council’s rent deposit scheme is outrageous gate keeping and the claimant was then asked to attend an interview at the Homeless Person’s Unit in order to progress his homeless application.

[24]In fact in my view there was nothing in the claimant’s solicitor’s letter dated 19 January 2009 which could be said to have been an indication that the claimant was no longer interested in the rent deposit scheme.

[25]On 26 February 2009 the claimant attended for an interview with the Council who promised him a section 184 decision within 33 working days.

[26]The claim for judicial review was issued on 4 March 2009. Although the claimant sought a mandatory order requiring the Council both to continue with inquiries into his application for accommodation as a homeless person pursuant to Part VII of the Act and to continue to assist him in obtaining rented accommodation pursuant to its rent deposit scheme, the first part of the order had already been rendered academic by the confirmation by the Council in its letter dated 5 February 2009 that it was prepared to progress his homeless application.

[27]In the Council’s letter dated 1 June 2009 referred to above the Council informed the claimant that it had completed its inquiries pursuant to section 184 of the Act and, having been satisfied that he was eligible for assistance, homeless, in priority need, not intentionally homeless and had a local connection with Lambeth and that there was no other suitable accommodation for him to occupy in Lambeth it accepted responsibility under section 193(2) of the Act for securing him suitable accommodation. The letter made reference to the Council’s Choice Based Lettings scheme under which the claimant would be permitted to bid for homes as they became available. As already mentioned it did not refer to the rent deposit scheme or inform the claimant that he was entitled to participate in it.

[28]In the letter dated 12 October 2009 from the Council’s legal department reference was made to the determination by the Council in June 2009 that it owed the claimant a duty under section 193 of the Act. “In those circumstances your client should he wish to is entitled to take advantage of the rent deposit scheme in securing a qualifying offer so that the Council may discharge the duty arising under section 193 by virtue of section 193(7B). Your client may take this letter as confirmation that in the present circumstances he is entitled to the benefit of that scheme should he wish to pursue it.” It thus appeared to be the Council’s position that whereas the claimant had not been entitled to take advantage of the rent deposit scheme while the Council was making inquiries pursuant to section 184, he was entitled to do so once it had accepted that it owed him a duty under section 193.

[29]It was thus asserted that the claimant’s claim for judicial review is entirely academic as far as he is concerned and there being no exceptional circumstances in this case he was invited to withdraw his claim for judicial review. By letter dated 16 October 2009 the claimant’s solicitors refused to withdraw the claim. While acknowledging that the claimant would no longer achieve personal benefit from a successful outcome of the claim it was asserted that the claim has a significant wider public interest in that it appeared that the two allegedly unlawful policies which had been applied to the claimant were also applied generally. Those aspects were said to be a requirement that an applicant must withdraw his or her application for accommodation as a homeless person so that the local authority then ceases making inquiries / coming to a decision as a condition of referral to the rent deposit scheme and a policy of excluding from its rent deposit scheme any person who makes a homelessness application pursuant to section 184 of the Act.

The legislative framework

[30]Part VII of the Housing Act 1996 deals with homelessness. It sets out certain functions of local housing authorities in relation to homelessness or threatened homelessness and imposes duties on a local housing authority where a person applies to it for accommodation or assistance in obtaining accommodation and it has reason to believe that he is or may be homeless or threatened with homelessness. Section 184 provides that 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 whether he is eligible for assistance and if so whether any duty and if so what duty is owed to him under the following provisions of the Act. On completing their inquiries the authority is obliged to notify the applicant of its decision. If the decision is adverse to the applicant he must be so notified and informed of his right to request a review of the decision. Section 188 imposes an interim duty on a local authority to accommodate in a case of apparent priority need. If the local authority have reason to believe that an applicant may be homeless, eligible for assistance and have a priority need section 188 provides that 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 Part VII.

[31]The duty ceases when the local authority’s decision as to whether it owes the applicant a duty under the following provisions of Part VII is notified to him. Section 189 provides that certain categories of person have a priority need for accommodation. They include a pregnant woman, a person with whom dependent children reside, a person who is vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason and a person who is homeless or threatened with homelessness as a result of emergency such as flood, fire or other disasters. If upon completion of the inquiries which they are obliged to undertake by section 184 a local housing authority is satisfied that the applicant is homeless or threatened with homelessness and is eligible for assistance, the Act imposes on it certain duties to the applicant. The nature and extent of those duties varies according to and is dependant upon whether it is satisfied that he is homeless or rather that he is threatened with homelessness, whether he became homeless intentionally and whether he has a priority need. The greatest extent of duty is owed to an applicant where the local housing authority are satisfied that he is homeless, is eligible for assistance, has a priority need and is not satisfied that he became homeless intentionally. To such an applicant the duty imposed on the local authority by section 193 is to secure that accommodation is available for occupation by him.

[32]The duty imposed on the local authority by section 193 to secure that accommodation is available for occupation by the applicant continues until it ceases by virtue of one of the events specified in section 193. Those events are as follows: if the applicant refuses an offer of accommodation which the authority are satisfied is suitable (sub-section 5); if the applicant ceases to be eligible for assistance, becomes homeless intentionally from the accommodation made available for his occupation, accepts an offer of accommodation under part VI, accepts an offer of an assured tenancy other than an assured short hold tenancy from a private landlord or otherwise voluntarily ceases to occupy as his only or principal home the accommodation made available for his occupation (sub-section 6); if the applicant refuses a final offer of accommodation under part VI (sub-section 7); if the applicant accepts a qualifying offer of an assured short hold tenancy which is made by a private landlord in relation to any accommodation which is or may become available for the applicant’s occupation (sub-section 7B): an offer is an not a qualifying one unless it is accompanied by a statement explaining that there is no obligation to accept it.

[33]I set out below some of the material provisions of Part VII of the Act.

[34]Section 175(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 court, (b) has an express or implied licence to occupy, or occupies as a residence by virtue of any enactment of rule of law giving him the right to remain in occupation or restricting the right of another person to recover possession…. (3) A person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for him to continue to occupy. (4) A person is threatened with homelessness if it is likely that he will become homeless within 28 days. Section 179 (1) Every local housing authority shall secure that advice and information about homelessness and the prevention of homelessness is available free of charge to any person in their district…. Section 182 (1)In the exercise of their functions relating to homelessness and the prevention of homelessness a local housing authority or social services authority shall have regard to such guidance as may from time to time be given by the Secretary of State…. Section 183 (1)The following provisions of this Part apply where a person applies to a local housing authority for accommodation or for assistance in obtaining accommodation and the authority have reason to believe that he is or may be homeless or threatened with homelessness.

(2) In this Part - …. “applicant” means a person making such an application “assistance under this Part” means the benefit of any function under the following provision of this Part relating to accommodation or assistance in obtaining accommodation, and “eligible for assistance” means not excluded from such assistance by section 185 (persons from abroad not eligible for housing assistance)…

(3) Nothing in this section or the following provision of this Part affects a person’s entitlement to advice and information under section 179 (duty to provide advisory services). Section 184 (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) A notice under sub-section (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… Section 188 (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 section 198 – 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). (4) The authority may secure that accommodation is available for the applicant’s occupation pending a decision on a review. Section 189 priority need for accommodation. (1) The following have a priority need for accommodation – (a) a pregnant woman or a person with whom she resides or might reasonably be expected to reside, (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, (d) a person who is homeless or threatened with homelessness as a result of an emergency such as flood, fire or other disasters. (2) The Secretary of State may by order – (a) specify further descriptions of persons as having a priority need for accommodation, and (b) amend or repeal any part of sub-section (1)… Section 190 (1)This section applies where the local housing authority are satisfied that an applicant is homeless and is eligible for assistance but are also satisfied that he became homeless intentionally. (2) If the authority are satisfied that the applicant has a priority need, they shall (a) secure that accommodation is available for his occupation for such period as they consider will give him a reasonable opportunity of securing accommodation for his occupation, and (b) provide him with or secure that he is provided with advice and assistance in any attempts he may make to secure that accommodation becomes available for his occupation. (3) If they are not satisfied that he has a priority need they shall provide him with or secure that he is provided with advice and assistance in any attempts he may make to secure that accommodation becomes available for his occupation. (4) The applicant’s housing needs shall be assessed before advice and assistance is provided under sub-section (2)(b) or (3)… Section 191 (1) A person becomes homeless intentionally if he deliberately does or fails to do anything in consequence of which he ceases to occupy accommodation which is available for his occupation and which it would have been reasonable for him to continue to occupy… Section 192 (1) This section applies where the local housing authority – (a) are satisfied that an applicant is homeless and eligible for assistance and (b) are not satisfied that he became homeless intentionally but are not satisfied that he has a priority need. (2) The authority shall provide the applicant with or secure that he is provided with advice and assistance in any attempts he may make to secure that accommodation becomes available for his occupation. (3) The authority may secure that accommodation is available for occupation by the applicant. (4) The applicant’s housing needs shall be assessed before advice and assistance is provided under sub-section (2)

(5) The advice and assistance provided under sub-section (2) must include information about the likely availability in the authority’s district of types of accommodation appropriate to the applicant’s housing needs (including in particular the location and sources of such types of accommodation). Section 193 (1)This section applies where a local authority are satisfied that an applicant is homeless, eligible for assistance and has a priority need and are not satisfied that he became homeless intentionally. (2) Unless the authority refer the application to another local housing authority (see section 198) they shall secure that accommodation is available for occupation by the applicant. (3) The authority are subject to the duty under this section until it ceases by virtue of any of the following provisions of this section… (5) The local housing authority shall cease to be subject to the duty under this section if the applicant, having been informed by the authority of the possible consequence of refusal and of his right to request a review of the suitability of the accommodation refuses an offer of accommodation which the authority are satisfied is suitable for him and the authority notify him that they regard themselves as having discharged their duty under this section.

(6) The local housing authority shall cease to be subject to the duty under this section if the applicant – (a) ceases to be eligible for assistance, (b) becomes homeless intentionally from the accommodation made available for his occupation (c) accepts an offer of accommodation under Part VI (allocation of housing) or (cc) accepts an offer of an assured tenancy (other than an assured short hold tenancy) from a private landlord (d) otherwise voluntarily ceases to occupy as his only principal home the accommodation made available for his occupation.

(7) The local housing authority shall also cease to be subject to the duty under this section if the applicant, having been informed of the possible consequence of refusal and of his right to request a review of the suitability of the accommodation, refuses a final offer of accommodation under Part 6. (7B) The authority shall also cease to be subject to the duty under this section if the applicant accepts a qualifying offer of an assured short hold tenancy which is made by a private landlord in relation to any accommodation which is, or may become, available for the applicant’s occupation. (7C) The applicant is free to reject a qualifying offer without affecting the duty owed him under this section by the authority. (7D) For the purposes of sub-section (7B) an offer of an assured short hold tenancy is a qualifying offer if – (a) it is made with the approval of the authority in pursuant of arrangement made by the authority with the landlord with a view to bringing the authority’s duty under this section to an end, (b) the tenancy being offered is a fixed term tenancy (within the meaning of Part 1 of the Housing Act 1988); and (c) it is accompanied by a statement in writing which states the term of the tenancy being offered and explains in ordinary language that – i. there is no obligation to accept the offer, but ii. if the offer is accepted the local housing authority will cease to be subject to the duty under this section in relation to the applicant… (9) A person who ceases to be owed the duty under this section may make a fresh application to the authority for accommodation or assistance in obtaining accommodation… Section 195 (1) This section applies where the local housing authority are satisfied that an applicant is threatened with homelessness and is eligible for assistance. (2) If the authority – (a) are satisfied that he has a priority need, and (b) are not satisfied that he became threatened with homelessness intentionally, they shall take reasonable steps to secure that accommodation does not cease to be available for his occupation… (3A) The authority shall, on becoming subject to the duty under this section, give the applicant a copy of the statement included in their allocation scheme by virtue of section 167 (1A) (policy of offering choice to people allocated housing accommodation under Part 6). (4) Where in pursuance of the duty under sub-section (2) the authority secure that accommodation other than that occupied by the applicant when he made his application is available for occupation by him, the provisions of section 193 (3) to (9) (period for which duty owed)… apply with any necessary modification, in relation to the duty under this section as they apply in relation to the duty under section 193. (5) If the authority – (a) are not satisfied that the applicant has a priority need, or (b) are satisfied that he has a priority need but are also satisfied that he became threatened with homelessness intentionally, they shall provide him with (or secure that he is provided with) advice and assistance in any attempts he may make to secure that accommodation does not cease to be available for his occupation. (6) The applicant’s housing needs shall be assessed before advice and assistance is provided under sub-section (5)… (7) The advice and assistance provided under sub-section (5) must include information about the likely availability in the authority’s district of types of accommodation appropriate to the applicant’s housing needs (including, in particular, the location and sources of such types of accommodation).

(8) If the authority decide that they owe the applicant the duty under sub-section (5) by virtue of paragraph (b) of that sub-section, they may, pending a decision on a review of that decision – (a) secure that accommodation does not cease to be available for his occupation; and (b) if he becomes homeless, secure that accommodation is so available.

(9) If the authority – (a) are not satisfied that the applicant has a priority need; (b) are not satisfied that he became threatened with homelessness intentionally, the authority may take reasonable steps to secure that accommodation should not cease to be available for the applicant’s occupation. Section 206 (1) A local housing authority may discharge their housing functions under this Part only in the following ways – (a) by securing that suitable accommodation provided by them is available, (b) by securing that he obtains suitable accommodation from some other person, or (c) by giving him such advice and assistance as will secure that suitable accommodation is available for some other person.

[35]Paragraph 2.3 of chapter 2 of the Guidance issued by the Department of Communities and Local Government pursuant to section 182 states:

“…Housing authorities are reminded that they must not avoid their obligations under Part 7 of the 1996 Act (including the duty to make inquiries under section 184, if they have reason to believe that the applicant may be homeless or threatened with homelessness) but it is open to them to suggest alternative solutions in cases of potential homelessness where these would be appropriate and acceptable to the applicant.”

[36]The same point is repeated with greater emphasis in paragraph 6.4 of chapter 6 of the Guidance. Paragraph 6.3 states:

“Authorities should explain the various housing options that are available to persons who may be seeking to apply for assistance under the homelessness legislation without being aware of other options that could help them to secure accommodation.”

It is said that these might include:

“…assistance (e.g. rent deposit or guarantee) to obtain accommodation in the private rented sector.”

Paragraph 6.4 then states:

“Housing authorities should ensure that the implications and likely outcomes of the available housing options are made clear to all applicants, including the distinction between having a priority need for accommodation under Part 7 and being in a “reasonable preference” category for an allocation of housing under Part 6. Authorities must not avoid their obligations under Part 7 (especially the duty to make inquiries under section 184), but it is open to them to suggest alternative solutions in cases of potential homelessness where these would be appropriate and acceptable to the applicant.”

(emphasis added).

[37]Paragraph 6.5 of the Guidance emphasises that if a housing authority has reason to believe that an applicant may be eligible for assistance, homeless and have a priority need, the authority will have an immediate duty under section 188 to ensure suitable accommodation is available for the applicant (and his or her household) pending the completion of the authority’s inquiries and its decision as to what duty, if any, is owed to the applicant under Part 7 of the Act.

[38]Paragraph 6.2 of the Guidance emphasises that:

“Under section 184 of the Act, if a housing authority has reason to believe that a person applying to the authority for accommodation or assistance in obtaining accommodation may be homeless or threatened with homelessness, the authority must make such inquiries as are necessary to satisfy itself whether the applicant is eligible for assistance and if so, whether any duty, and if so what duty, is owed to that person under Part 7 of the 1996 Act.”

(emphasis added).

[39]Before answering this question I should record that on the second day of the hearing Mr Watkinson applied to amend the claim form so as to include in the relief sought an additional declaration of general application that “the council’s alleged policy by which an applicant for accommodation as a homeless person who, because he decides to continue with that application after having been referred to the council’s rent deposit scheme is, for that reason, excluded from the rent deposit scheme, unlawful and void.” (sic)

[40]Mr Beglan who appeared on behalf of the Council vigorously opposed the application. As well as raising a second wholly academic question in whose outcome the claimant had no interest he submitted that the amendment suffered from the additional vices that the application was made far too late and that as a result the Council would be prejudiced if it were to be allowed in that he had no instructions as to whether the policy alleged existed and if so what were it’s terms and whether there were any and if so what exceptions to it. The Council had not adduced any evidence to meet this new claim and it was too late for it to do so. I accepted this submission and on that ground refused the application. Accordingly it was not necessary for me to decide whether, had the claim been included in the original claim form, I should decline to decide the question raised by it on the ground that the claimant had no interest in its outcome.

[41]In support of its submission that I should not decide the question posed by the general declaration which was sought in the original claim form, namely that the Council’s policy of not continuing with inquiries into an application for accommodation as a homeless person pursuant to Part VII if the applicant had been referred to its “partner agency” Letting First is unlawful and void, the council relied on the decision of Silber J in R (on the application of Zoolife International Limited) v Secretary of State for Environment, Food and Rural Affairs

[2007] EWHC 2995 (Admin)

; [2008] ACD 44.

[42]In that case Silber J reviewed the authorities which consider the question whether courts should entertain claims for relief in which the claimants have no interest: “(iii) Discussion 32. The starting point for considering whether a court should permit a party to pursue an academic point in a public law case is the classic statements of Lord Slynn of Hadley in R v Secretary of State for the Home Department ex parte Salem

[1999] 1 AC 450

in a speech with which other members of the Appellant Committee agreed when he explained (with my emphasis added) that: “…I accept, as both counsel agree, that in a case where there is an issue involving a public authority as to questions of public law, your Lordships have a discretion to hear the appeal, even if by the time the appeal reaches the House, there is no longer a lis to be decided which will directly affect the rights and obligations of the parties inter se… The discretion to hear disputes, even in the area of public law, must be exercised with caution and appeals which are academic between the parties should not be heard unless there is a good reason in the public interest for doing so as for example (but only by way of example) where a discrete point of statutory construction which does not involve detailed consideration of the facts, and where large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future” 33. One of the reasons for this approach was expressed by Lord Goff in R v Secretary of State fo the Home Department ex parte Wynne

[1993] 1 WLR 115

at 120A-B where he said that: “It is well established that this House does not decide hypothetical questions. If the House were to do so, any conclusion, and the accompanying reasons, could in their turn constitute no more than obiter dicta expressed without the assistance of a concrete factual situation, and would not constitute a binding precedent for the future”. 34. These statements refer to the approach of the House of Lords but there is no reason why they should not apply with equal force to other courts. This approach to academic issues was considered further in the speeches by the members of the Appellate Committee in R (on the application of Rushbridger) v Attorney General

[2004] 1 AC 357

in which:(a) Lord Hutton explained that “it is not the function of the courts to decide hypothetical questions which do not impact on the parties before them” (page 371 E [35])

(b) Lord Hutton expressly approved at page 371 [35] the statement of Lord Justice-Clerk Thompson in Macnaughton v Macnaughton’s Trustees

[1953] SC 387

-392 that “our courts have consistently acted on the view that it is their function in the ordinary run of contentious litigation to decide only live, practical questions, and they have no concern with hypothetical, premature or academic questions, not do they exist to advise litigants as to the policy which they should adopt in the ordering of their affairs”; and

(c) Lord Scott of Foscote stated that “the valuable time of the courts should be spent on real issues” (page 374 E[45]). 35. Similar principles have been applied in the Administrative Court, for example, by Munby J in Smeaton v Secretary of State

[2002] 2 FLR 146

, 244 [420] (“the facts remain that the court-including the Administrative Court – exist to resolve real problems and not disputes of merely academic significance”) and by Davis J in BBC v Sugar

[2007] 1 WLR 2593

, 2606 [70] (“to grant remedies by reference to a decision made in now outmoded circumstances seems to me to be an arid and academic exercise. It is not something that, as an Administrative Court Judge, I would have been minded to do”) Although these statements indicate that if an issue is academic, the court cannot determine it, these statements must be subject to what was said in Salem and which has, as far as I can discover, not been disapproved of or qualified in any manner in any later case.” (paras 32-35). “…I accept, as both counsel agree, that in a case where there is an issue involving a public authority as to questions of public law, your Lordships have a discretion to hear the appeal, even if by the time the appeal reaches the House, there is no longer a lis to be decided which will directly affect the rights and obligations of the parties inter se… The discretion to hear disputes, even in the area of public law, must be exercised with caution and appeals which are academic between the parties should not be heard unless there is a good reason in the public interest for doing so as for example (but only by way of example) where a discrete point of statutory construction which does not involve detailed consideration of the facts, and where large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future” “It is well established that this House does not decide hypothetical questions. If the House were to do so, any conclusion, and the accompanying reasons, could in their turn constitute no more than obiter dicta expressed without the assistance of a concrete factual situation, and would not constitute a binding precedent for the future”. (a) Lord Hutton explained that “it is not the function of the courts to decide hypothetical questions which do not impact on the parties before them” (page 371 E [35]) (b) Lord Hutton expressly approved at page 371 [35] the statement of Lord Justice-Clerk Thompson in Macnaughton v Macnaughton’s Trustees

[1953] SC 387

[43]Silber J having reviewed these authorities reached the following conclusion: “36. In my view these statements show clearly that academic issues cannot and should not be determined by courts unless there are exceptional circumstances such as where two conditions are satisfied in the type of application now before the courts. The first condition is in the words of Lord Slynn in Salem (supra) that “a large number of similar cases exist or anticipated” or at least other similar cases exist or are anticipated and the second condition is that the decision in the academic case will not be fact-sensitive. If the courts entertained academic disputes in the type of application now before the court but which did not satisfy each of these two conditions, the consequences would be a regrettable waste of valuable court time and the incurring by one or more parties of unnecessary costs. 37. These points are particularly potent at the present time where the Administrative court is completely overrun with immigration, asylum and other cases and where it would be contrary to the overriding objectives of the CPR for an academic case to be pursued. After all one of those overriding objectives is “dealing with a case justly [which] includes, so far as is practicable ….(e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases” (CPR Part 1.1) It is noteworthy that there have been a number of cases where the court has considered it appropriate to hear an academic issue but those cases, which often concerned statutory construction or the impact of the European Convention on Human Rights on English statutes, satisfied the two test which I have set out in paragraph 36 above (see generally the examples given in R (on the application of B) v Dr SS, Dr AC and the Secretary of State for the Home Departments of Health

[2005] EWHC 86

(Admin) [47]).” (paras 36 and 37 ibid).

[44]Silber J then concluded that on the facts of that case there were a number of factors some of which were overlapping and which individually or cumulatively indicated that the claim should not be heard as it was academic. Those factors were first that any decision on the facts of that case would be fact-sensitive, second that since the duties of the claimants were not the same in the instant case and in all other potential cases the result in the instant case would not necessarily be the same in any other cases, third that there was no certainty or even probability that other claims would be brought, fourth that if there were subsequent claims other parties might wish to adduce evidence so that the court on a subsequent occasion would have to consider different material from that before Silber J, fifth that because any decision in the instant case would depend on assumed facts it would be unlikely to be determinative or of any value in subsequent proceedings, sixth that because the factual situation in a subsequent case might be different a decision on the instant case would not constitute a precedent for future applications, seventh that not all interested parties had been served with details of the amended claim and finally that the claim in that case was an academic one and there was, in the words of Lord Slynn in Salem no “good reason in the public interest” for it to be determined by him.

[45]However, notwithstanding his conclusion that the present claim was academic and should not be determined, he rejected a submission that he should not deal with the submissions made on the application. That was on the basis that it was desirable if not necessary for him to resolve the outstanding issues in case he was wrong on the academic issue and also because it might well be necessary for him to come to conclusions on the other issues when dealing with the question of costs. He therefore turned to consider the merits of the case although pointing out that his comments would be obiter dicta.

[46]With a view to supporting an argument that there is a large number of similar cases raising the question whether the Council’s alleged policy is unlawful, the claimant’s solicitors wrote to the Council’s solicitor seeking disclosure of documents showing the number of applications for accommodation as homeless persons received in 2008 and up to the end of September 2009 and the number of referrals to the rent deposit scheme resulting from those applications and indicating the number of applications likely to be received for the remainder of 2009 and 2010. They also asked whether persons so referred received standard documentation in the form of the document headed Lettings First Rent Deposit Acceptance – Terms and Condition dated 7 January 2009 to which I have referred above. In response the Council’s solicitors said they did not understand the latter request. In answer to the other questions they declined to give voluntary disclosure but answered that there were 1,173 homeless applications in 2008/09, that 569 households were assisted through the rent deposit scheme in 2008/09 and that it was expected that those numbers were expected to be similar or higher in 2009/10. However it was said that figures are not available on how many referrals followed a homeless application as the records do not distinguish between those with or without a homelessness application in the Council’s monitoring data collection for the rent deposit scheme. It was said that the provision of the rent deposit scheme is intended to prevent homelessness and is an alternative to making a homeless application and that most referrals are of people who have not made a homeless application.

[47]Mr Watkinson submitted that this case falls within the principles identified by Silber J in Zoolife. Although he accepted that the claim is academic he submitted that the issue is not fact sensitive as the personal circumstances of the claimant are not relevant to its determination save as serving as an example of the application of the policy. That the Council has a policy or practice by which an applicant is required to withdraw his or her application for accommodation as a homeless person so that the Council then ceases making inquiries/coming to a decision as a condition of referral to the rent deposit scheme was he submitted evidenced by the use of standard form documentation in the form set out above. He further submitted that in its letter dated 5 February 2009 the Council did not deny that the policy/practice is applied to all applicants who are being referred to the rent deposit scheme before their homelessness application has been determined and indeed that the Council sought in that letter to justify the policy. In the passage on which he relied the Council wrote:

“We do not understand your objection to a condition that by seeking housing through Letting First the applicant will not make or continue with a homelessness application. Obviously if a person obtains housing through Letting First the person will not be homeless and any homeless application will be redundant. It is explained to applicants that even though they elect to use the Lettings Scheme they can still join the Lambeth Housing Register.”

[48]As to the existence or anticipation of similar cases Mr Watkinson submitted that it can be assumed that the 569 households assisted through the rent deposit scheme in 2008/09 was not the total number of referrals to the rent deposit scheme since presumably some of those referred were not assisted by the scheme but were rather assisted by the council’s own housing stock or not at all. Accepting that a majority of those referred were not as a result of homelessness applications he submitted that it can be fairly and conservatively assessed that approximately 200 per annum were. He thus submitted that what he described as the “number” condition was met particularly as the number affected is annually recurring. It was in any event plain that there must be some other cases such as the claimant’s recurring annually.

[49]He further relied on the fact that the claim is supported by the Legal Services Commission which must therefore be content for public funding to continue on the “academic” basis, as confirmed by letters dated 14 October and 21 October 2009. The Legal Service Commission’s Funding Code-Decision Making Guidance states at 5.3(2):

“The Code sets no limit or minimum on the number of people who must benefit before significant wider public interest can be established. This will vary greatly according to the nature of the benefits…as a general guideline, even where the benefits to others are substantial, it would be unusual to regard a case as having significant wider public interest if fewer than 100 people would benefit from its outcome.”

Thus he submitted it is to be inferred that the Legal Services Commission was satisfied that there must be at least 100 other similar cases raising the same issue.

[50]In response Mr Beglan submitted that the claimant has not provided evidence that a large number of other similar cases exist and did not accept the extrapolation suggested by the claimant. In addition he submitted that if there are other cases they will be fact sensitive. The validity of any policy of the council may well depend on the stage at which a person finds himself. Thus for example he suggested that even if the policy was held to be unlawful in its application to the Claimant it might remain lawful in the case of an individual who has not yet applied under Part VII, one who is housed under the policy before he applies, one who has applied but in relation to whom the local authority has made no determination as to whether it has “reason to believe” that the person is eligible for assistance, homeless (section 184) and in priority need (section 188 (1)), one who asks for the decision to be deferred because accommodation which they expected to leave shortly will continue to be available for them for a further period or because they wish to acquire further medical evidence from a consultant or because they accept advice given to them by a local authority about seeking injunctive relief to get back into an assured short hold tenancy from which they have been unlawfully evicted or one who is simply threatened with homelessness. He submitted that different considerations might apply to each of those examples such that any challenge to the policy of the council (if such a policy exists) could be expected to be fact sensitive.

[51]He further submitted that the court should be slow to infer that there are many similar cases in the pipeline. The scheme has been going since 2002 and there is no evidence of any other claims having been made. There was no suggestion that the Council was in receipt of similar claims which were interfering with its operation of the scheme such that it would be helpful to have guidance from the court. As to Mr Watkinson’s submission that similar cases may never get to court because, like the claimant in this case, the Council agrees to continue with its inquiries if an applicant complains about the policy, he submitted that that is pure speculation. Moreover there is no reason to suppose that there might not be people in a similar position to the claimant who, unlike him, do take up the offer of entry into the rent deposit scheme and who could then apply for judicial review of the policy to cease homelessness inquiries in respect of them.

[52]In considering whether against this background I should proceed to decide the issue posed by the general declaration sought by the claimant it seems to me that the starting point must be the policy considerations which lie behind the general rule that the court does not entertain a claim which will not directly affect the rights and obligations of the parties inter se. As appears from the authorities referred to by Silber J in Zoolife and Silber J’s own observations, there are a number of policy factors in play. First, as stated by Lord Goff in Wynne a conclusion on hypothetical questions and the accompanying reasons could constitute no more than obiter dicta expressed without the assistance of a concrete factual situation and would not constitute a binding precedent for the future. Although stated in the context of the House of Lords, in principle it seems to me that there is no reason why that consideration should be confined to the most senior appellate court. There are circumstances in which a declaration by the High Court as to the law or as to the legality or illegality of certain conduct may constitute a binding precedent for the future. It follows that the undesirability of reaching conclusions with accompanying reasons without the assistance of a concrete factual situation which would not constitute a binding precedent for the future is capable of applying to the High Court as well as appellate courts.

[53]Allied to this is the obvious public interest in the avoidance of wasting valuable court time and the incurring by one or more parties of unnecessary costs normally inherent in the entertaining of academic disputes whose resolution will neither affect the rights and obligations of the parties inter se nor constitute a binding precedent for the future. In this context as Silber J pointed out these are particularly potent points at the present time in the Administrative Court having regard to the overriding objective in the CPR of dealing with a case justly including allotting to it an appropriate share of the court’s resources while taking into account the need to allot resources to other cases.

[54]It seems to me that in this context one particular matter to which the court must have regard is whether the effect of entertaining an academic claim in any particular case may be to encourage or fail adequately to deter the bringing of academic claims by other persons in the future. Even in a case where a claim only becomes academic shortly before it comes to court, by which time most if not all the legal costs may already have been incurred, this is a factor in my view to be weighed in the balance against the argument that the fact of costs having already been incurred in the instant case is a factor pointing in favour of the court proceeding to adjudicate on the claim. In such a case, particularly where there is evidence that there is a large number of other cases in the pipeline likely to raise the same point, there may be an overall net saving of legal costs and possibly even court time if the court proceeds to entertain the claim.

[55]In my judgment the deterrence argument is likely to be of greater importance in a case where the claim was academic even before proceedings were issued. That is for two reasons. First by definition all costs would have been incurred in the knowledge that the claim could not affect the rights and obligations of the parties to the litigation. Second if the court were to entertain such a claim there would be a greater risk of encouraging the issuing of academic or hypothetical claims contrary to the general policy. In my judgment that is a factor arguing against adjudicating on the issue raised by the claimant in this case. That is because even before the claim was issued the Council had agreed in response to his request to continue to process his homelessness application. (See the Council’s letter dated 5 February 2009 in which he was asked to attend an interview to enable his homeless application to be progressed.). Thus by the time the claim form was issued on 4 March 2009 there remained no outstanding live issue between the claimant and the Council by reason of its refusal to continue with its inquiries into his application for accommodation as a homeless person under Part VII of the Act. His claims for a quashing order of the Council’s decision dated 5 December 2008 not to continue with those inquirers, a mandatory order requiring it to continue with them and a declaration that its decision not to continue with them was unlawful and void were already unnecessary at the time the claim form was issued. (It is true that his claim for a declaration that the Council’s decision not to continue assisting him on the rent deposit scheme through Lettings First after it decided to continue with his homelessness inquiries was unlawful and void and for a mandatory order requiring the Council to continue to assist him with obtaining rented accommodation in the private sector through Lettings First did not become unnecessary until the Council’s letter dated 12 October 2009 (or arguably, its letter dated 1 June 2009) in which the claimant was informed that he was entitled to take advantage of the rent deposit scheme. Although both those letters were written after the claim form was issued, the relief sought by the claimant in respect of the initial alleged failure and/or refusal of the Council to continue to make available to him the benefit of the rent deposit scheme did not in itself raise the issue on which the court was asked to adjudicate at the hearing, which was confined to the legality or illegality of the alleged policy of discontinuing homelessness inquiries. That issue was always academic even from before the date on which the claim was issued.

[56]To that extent as a matter of analysis the fact that the claim initially included relief specifically referable to the claimant in respect of the Council’s alleged policy of refusing to continue with homelessness inquiries where an applicant has been referred to the Letting First agency is a red herring. In considering whether the claim on which I was asked to adjudicate was always academic or only became academic after the claim was issued, it does not in my view assist the claimant to point to the fact that the claim form initially included claims for relief specifically referable to himself which were already unnecessary on the date when the claim was issued. Thus it seems to me that in this sense the claimant is in no different position from any other member of the public who might seek to bring a claim challenging the legality of the Council’s policy and who at the moment of deciding whether to issue proceedings has no personal interest capable of being affected by the outcome of the general challenge contemplated by way of a prayer for general declaratory relief.

[57]As appears above argument was addressed by both sides to whether this case satisfies the two criteria identified by Lord Slynn in Salem, namely whether the claim involves detailed consideration of the facts and whether a large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future. It should be borne in mind that these were postulated by Lord Slynn not as necessary conditions which must be satisfied in every case before the court will adjudicate on an academic claim but rather as an example and “only by way of example” of a good reason in the public interest for the court to hear a dispute even in the area of public law which is academic. The overriding principle is whether there is a good reason in the public interest for hearing the claim.

[58]As to the second criterion it is plain from Lord Slynn’s reference to the likely need for the issue to be resolved in the near future that what he contemplated was the existence or anticipation of similar cases which would actually come to court requiring a decision on the same point by the court. It does not seem to me that he was there contemplating the alternative basis on which Mr Watkinson relied, namely the existence or anticipation of a large number of other cases in which the conduct or policy of the Council sought to be challenged was applied but which for one reason or another would all be unlikely ever to come to court. That is not to say that in an appropriate case the court would never be prepared to entertain a claim. Whether the court was prepared to do so would depend on whether there was good reason in the public interest to do so. It would however in my view be an extension of the kind of case and the kind of circumstances contemplated by Lord Slynn. In particular it would lack the element of saving legal costs in future similar cases as a factor to be weighed against what would otherwise be the incurring of wasted costs and the wasting of court time.

[59]On the facts of this case it did not seem to me that the evidence led to the conclusion that the issue raised by the claimant will most likely need to be resolved in the near future in a similar case or cases, let alone in a large number of such cases, since the rent deposit scheme has been in place for several years and the claimant’s instructing solicitors were industrious in seeking evidence on this point, the fact that they did not identify any similar cases which had been issued and settled in the past or which are currently in the pipeline or anticipated if anything pointed in the opposite direction. In my judgment on the evidence there was greater force in the alternative basis relied on by Mr Watkinson, namely that it is likely that there may be a large number of persons who make or may make homelessness applications and are then referred by the Council to Lettings Direct and the rent deposit scheme who are or may be affected by the approach of the Council to the interaction of those two routes to addressing problems of homelessness. In this context it seems to me relevant that the document dated 7 January 2009 headed Lettings First Rent Deposit Acceptance – Terms and Conditions appears on its face to be a standard document not specifically drafted in response to the claimant’s peculiar circumstances. Second it seems to me a reasonable inference on the evidence that there may be a significant number of persons who have made or may make homelessness applications under Part VII and who are referred by the Council to Lettings Direct. While of course not in any way binding on this court I take note of the fact that the Legal Services Commission was prepared to continue funding the claimant even after the sole issue affecting his rights, in relation to access to the rent deposit scheme, had been resolved. On the other hand although its guideline states that it would be unusual to regard a case as having significant wider public interest if fewer than 100 people would benefit from its outcome, there is no suggestion that it based its decision to continue finding the claim on any evidence not available to the court.

[60]However the question remains as to why if there is a large number of other people adversely affected by a policy of the Council which is said to be unlawful no claims for judicial review have been brought and why if any such claims were to be brought in the future they would necessarily be compromised before reaching the court. In principle in a hypothetical case in which a claimant was able to identify an unlawful policy implemented by a local authority which could never be challenged by a person adversely affected by it because the nature of the illegality was so transient or short lived that it would always cease before it could be brought to court or where the local authority deliberately disapplied the policy so as to render all claims academic before the court could decide on them, I could imagine that there might be a good reason in the public interest for the court to entertain an academic claim for a declaration that the policy was unlawful.

[61]However I am not satisfied that it has been shown that this case falls into such a category. There was no evidence before the court of other cases in which the Council’s allegedly unlawful policy was initially applied but subsequently disapplied, let alone disapplied by the Council after proceedings for judicial review had been issued with the motive of preventing the court from adjudicating upon the legality or illegality of the alleged policy. This point is linked to the second criterion identified by Lord Slynn, namely whether the claim is fact sensitive. Mr Beglan submitted that, although there is no objection to making entry to a rent deposit scheme conditional on an applicant agreeing for the time being not to continue with their application under Part VII, in the event of such a person being at risk of becoming street homeless the council admitted and accepted that the duties under section 188 (1) would fall to be applied and it would remain under a duty to provide him with interim accommodation. The only difference in the treatment of his application would be that whilst he elected to continue with the rent deposit scheme his application under Part VII would not be determined. Since the right to be provided with interim accommodation under section 188 (1) is one of the principal potential benefits flowing from a Part VII application this seemed to me to raise potentially important questions which were not answered on the evidence as to what was the nature effect and ambit of the council’s policy, if policy it is, which is under challenge. The concession and averral made by Mr Beglan does not arise as a natural inference from the 5 January 2009 document. On the contrary if anything the reverse is the case, thereby suggesting that there may be more to the Council’s approach than can be gleaned from that document.

[62]Whether because of its contention that the court should not entertain the claim or otherwise the Council did not put in evidence in the form of a witness statement explaining its policy. Indeed there is no explicit allegation as to the nature extent and ambit of any policy or system operated by the Council in this regard in the statement of grounds for bringing the claim for judicial review. The closest the grounds came was a submission that “The council’s system includes termination of or not pursuing those inquiries [under section 184] once the referral to the private lettings agency is made…The complaint is not that he has been referred to an agency for securing accommodation in the private sector but that he cannot be referred to it without termination of his homeless persons application.” (paras 24 and 25).

[63]The summary grounds for resisting the claim do not explicitly admit the existence of a general scheme or policy other than the rent deposit scheme itself. The 7 January 2009 document states:

“By agreeing to seek housing though the Lettings First Scheme you understand (and have decided) that you will not be making, or continuing with, a homelessness application to Lambeth or to any other local authority. If, however, you were to become homeless from the tenancy arranged for you then, subject to (a) Lettings First seeking to assist you again and (b) issues of intentional homelessness from that tenancy, you may be able to seek assistance from Lambeth as a homeless person.”

The first sentence would appear to contemplate two categories of addressee, those who have not yet made a homelessness application and those who have but have decided not to continue with it. However the consequences are not spelled out. Thus while the second sentence states that the addressee might be able to seek assistance from the Council as a homeless person if they were to become homeless from a tenancy arranged by Lettings Direct under the rent deposit scheme, it is silent as to what, if any other circumstances would enable the addressee to seek such assistance. In particular the submission made in the detailed grounds of resistance and repeated by way of submission by Mr Beglan that in the event of an applicant who does not continue with a Part VII application following entry to the rent deposit scheme being at risk of becoming street homeless the Council accepts that it would remain under a duty to provide him with interim accommodation was not reflected in that document.

[64]The declaration sought by the claimant refers to the Council’s alleged policy as being one of not continuing with inquiries into a Part VII application if the applicant has been referred to Lettings First to assist in obtaining rented accommodation in private sector. Thus what is said to be unlawful about the policy is the discontinuance of inquiries under Part VII of the Act once an applicant has been referred to Lettings First. By contrast the 7 January 2009 document suggests that the trigger event is the applicant’s agreement to seek housing through the Lettings First Scheme and their understanding and decision not to make or continue with a homelessness application.

[65]In addition to this as pointed out by Mr Beglan in submissions summarised above even if the conduct of the Council to the claimant was unlawful and reflected a wider policy it would not follow that the policy was unlawful in the case of people at the various different stages identified by Mr Beglan. It seems to me that there is force in Mr Beglan’s submission that different considerations might apply to each of his examples and that that serves to demonstrate not so much as he put it the fact sensitive nature of the scheme but rather the fact sensitive nature of any challenge which might be made by any person in one of those categories to the scheme if scheme it is as it affects that person.

[66]In those circumstances in my judgment it would not be right for the court to adjudicate on the remaining declaration sought by the claimant and I decline to do so.

[67]In Zoolife Silber J, having reached a similar conclusion on the facts of that case, and having concluded that there was no reason why the present claim should be determined and that he must refuse to grant any relief to the claimants, nonetheless stated that it was desirable if not necessary for him to resolve the outstanding issues in case he was wrong on the academic issue and also because it might well be necessary for him to come to conclusions on the other issues when dealing with the question of costs. He then turned to consider the merits of the case although adding that his comments would be obiter dicta.

[68]I have given anxious consideration to whether that is a course which I should follow in this case. I have come to the conclusion that it is not. My first concern is that as a matter of first principle given that part of the policy lying behind the general rule against entertaining academic claims is to discourage the proliferation of such claims, it seems to me that there is a risk of defeating that objective if, having declined to adjudicate upon a claim on the ground that it is academic the court proceeds to set out what its views would have been if it had adjudicated on it. Albeit such views would be of no binding effect, the fact that the court might be prepared to express them in the form of obiter dicta might nonetheless encourage future claims. Allied to this is the related consideration that on one view expressions of view by the court in the form of obiter dicta, after it has declined to entertain a hypothetical claim, are potentially even more unsatisfactory than obiter dicta in the form of views expressed as part of such an adjudication. Such obiter dicta may place the losing party in the invidious position of deciding whether to ignore the court’s views on the ground that they are obiter dicta, to implement them even though they consider them to be wrong or to incur the expense of seeking permission to appeal against them even though the outcome of such an appeal, even if favourable to that party, would still take the form of further obiter dicta.

[69]Those considerations are not necessarily dispositive and I recognise of course the countervailing factors which led Silber J on the facts of Zoolife to reach a contrary conclusion. On the facts of this case the factors that make me particularly cautious about embarking on a wholesale adjudication of the claim is my concern as to the lack, or at any rate incomplete nature of evidence as to the nature effect and ambit of any scheme or policy operated by the council and my concern that in material respects the legality of the council’s approach may vary according to the circumstances of different people at the various different stages identified by Mr Beglan.

[70]In these circumstances it seems to me prudent to go no further than confining myself to a number of general observations. Section 184(1) of the 1996 Act imposes an absolute duty on a local housing authority which has reason to believe that an applicant may be homeless or threatened with homelessness to make such inquiries as are necessary to satisfy themselves whether he is eligible for assistance and if so whether any duty and if so what duty is owed to him under the following provisions of the Act. Paragraph 6.2 of chapter 6 of the Guidance given by Secretary of State to which the local housing authority must have regard states that in such circumstances the authority must make such inquiries. The thing that triggers the duty to make inquiries is the existence of reason to believe that an applicant may be homeless or threatened with homelessness, an applicant being defined in section 183(2) as a person making an application to a local housing authority for accommodation or assistance in obtaining accommodation. The trigger threshold is not a very high one:

“reason to believe that an applicant may be homeless or threatened with homelessness”

(emphasis added). Where an application has been made and the duty to make inquiries has been imposed a number of consequences may follow. Most immediately by reason of section 188(1) if the local authority has reason to believe that an applicant may in addition to being homeless and eligible for assistance 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 remaining provisions of the Act. Less immediately where the local housing authority are satisfied that an applicant is homeless and eligible for assistance and not satisfied that he became homeless intentionally and are also satisfied that he has a priority need they shall secure that accommodation is available for his occupation. Where the above conditions are satisfied save that they are not satisfied that he has a priority need the authority shall provide the applicant or secure that he is provided with advice and assistance in any attempts that he may make to secure that accommodation becomes available for his occupation and may secure that accommodation is available for his occupation.

[71]Since an applicant is defined as a person making an application for accommodation or assistance prima facie the duties under section 188, 192 and 193 are owed to persons actually making an application. One of the consequences if the duty imposed by section 184(1) to make inquiries is triggered is that the local authority becomes immediately obliged to make inquiries which may result in the authority having reason to believe that the applicant may be actually homeless, eligible for assistance and have a priority need such that the duty to secure interim accommodation under section 188(1) is triggered. If, after an application has been made under Part VII, and the local authority has reason to believe that the applicant is or may be homeless or threatened with homelessness such inquiries are either not commenced or cease there may be a risk that the local authority will fail to discover facts and matters which it would have discovered had it continued with its inquiries which facts and matters would have given it reason to believe that the applicant may be homeless, eligible for assistance and have priority need and thus would have triggered the duty to secure interim accommodation. Alternatively the local authority may only discover such facts and matters later than it would have done if those inquiries had continued.

[72]That is no doubt the reason, or at least the principal reason why the Guidance emphasises in two places that authorities must not avoid their obligations under Part VII (especially the duty to make inquiries under section 184) even though it is open to them to suggest alternative solutions in cases of potential homelessness where those would be appropriate and acceptable to the applicant. (See paragraph 2.3 and 6.4).

[73]Indeed the Guidance goes further emphasising that housing authorities are reminded that they must not avoid any of their obligations under Part VII of the Act including but not limited to the duty to make inquiries under section 184, even though it is open to them to suggest alternative solutions. (See paragraph 2.3). Thus the longer term duties under section 192 and 193 as well as the immediate duty to make inquiries under section 184 are among the obligations under Part VII of the 1996 Act which local authorities are reminded they must not avoid. Paragraph 6.4 also reminds housing authorities that they should ensure that the implications and likely outcomes of the available housing options are made clear to all applicants.

[74]Against that background it is of concern that the 7 January 2009 document makes no reference to the Council’s duties to applicants in particular under section 184 to make inquiries and section 188 to secure interim accommodation. In relation to the latter it neither states, as Mr Beglan submitted that the Council accepts, that it would remain under a duty to provide an applicant with interim accommodation in the event of him becoming street homeless (if that is the case) nor on the other hand does it put him on notice that the reverse is the case. Equally it does not put him on notice that a consequence of his not continuing with his homelessness application is or may be that the Council will cease to make inquiries under section 184 with the possible result that it may not discover or may not discover as quickly as it otherwise would have done facts and matters which might impose on it a duty to provide him with interim accommodation under section 188.

[75]If anything the inference from the second sentence of the paragraph in the 7 January 2009 document quoted in paragraph 63 above by stating that the addressee may be able to seek assistance from the Council as a homeless person if he subsequently were to become homeless from a tenancy arranged by it under the rent deposit scheme is that until and unless that were to happen to the addressee would not otherwise be able to seek assistance from the Council as a homeless person.

[76]Thus if for example while waiting for a property to become available under the rent deposit scheme a person to whom the 7 January 2009 document or its equivalent was addressed was in a position where had the council continued its inquiries it would have had reason to believe that he might be homeless, eligible for assistance and have a priority need there is nothing in the document to tell him either that he may be forfeiting a right to interim accommodation which he might otherwise have had or alternatively that the council would consider itself bound to secure interim accommodation whether under section 188 or voluntarily.

[77]On its face this seems to me to give rise to matters of serious concern. The effect of section 184, as it seems to me, is that once an application has been made under Part VII, if the local housing authority have reason to believe that the applicant may be homeless or threatened with homelessness they have an absolute obligation to make such inquiries as are necessary to satisfy themselves whether he is eligible for assistance and if so whether any duty and if so what duty is owed to him under the remaining provisions of Part VII. There may be cases where the circumstances of an applicant change in such a way that the local housing authority no longer have reason to believe that he may be homeless or threatened with homelessness. In such a case it may be entirely proper for the application to be withdrawn or discontinued and for the duty to make inquiries to cease. If however, once an application has been made, the local authority still have reason to believe that the applicant may be homeless or threatened with homelessness, the local authority cannot in my view unilaterally avoid its obligation to continue to make inquiries. There may be a number of ways in which a local authority might seek to avoid the obligation to make inquiries and it would be a question of fact in any particular case whether its conduct could be so construed. In this case it is submitted by the Council that even where an applicant has been referred to the lettings agency and has agreed to discontinue his application the Council accepts it has a duty to secure interim accommodation if he “was at risk of becoming street homeless”. However that does not of itself address the possibility that the consequence of ceasing to make inquiries might be that at some point in the future the applicant might be homeless, eligible for assistance and possibly have a priority need without the local authority having reason to believe that that might be the case because it has ceased its inquiries. Whether in such circumstances it could be said that the Council had directly or indirectly avoided its obligations under the Act would depend on the facts of any particular case. On its face, however, it might well be that a blanket policy of ceasing inquiries in all cases where a Part VII applicant has been referred to the rent deposit scheme could be construed as such an avoidance of statutory obligation. In short the benefits of the rent deposit scheme, great though they may be, are not equivalent to and may not be an adequate substitute for at any rate the benefits to a Part VII applicant of the duty to provide interim accommodation under section 188, which benefits may in practice be diminished or undermined in the event of the Council not completing its section 184 inquiries.

[78]Reference was made in argument to dicta in the decision of the Court of Appeal in Robinson v Hammersmith and Fulham LBC

[2007] HLR 7

[2006] EWCA Civ 1122

. In that case the 17 year old appellant applied to the respondent authority as homeless under Part VII of the Housing Act 1996. A housing officer told her that there was no point in her making an application because it would take 28 days for the authority to complete their inquiries into her application, by which time she would be 18 and would therefore no longer have a priority need under the relevant Order. She was due to become 18 on March 11 2005. The housing officer subsequently telephoned the appellant’s mother who said she was prepared to engage in mediation. On March 4 the appellant saw a mediation officer and agreed to mediate but on March 9 the mother refused to mediate. On March 10 the authority telephoned the appellant to say that they had decided she was not in priority need. But they decided not to send the written notification of that decision until the following day, her 18 birthday. The authority confirmed its decision on May 10 after the appellant was 18. The case was decided on the ground that the actual decision was made on March 10 while the appellant was under 18 so that she was in priority need. Once of the questions canvassed in argument was whether the council had been entitled to postpone making a decision in order to enable mediation to take place.

[79]Waller LJ quoted a note in the Encyclopaedia of Housing:

“Postponement of decisions Although the obligation to reach a decision is not spelled out in the section, it is implicit: an authority may not defer the obligation in the hope or expectation of a change in circumstances such as might reduce their duties, for example, by loss of priority need (ibid)…”

But he said that it would not be right to express a view going beyond the circumstances of that case. “Suffice it to say that in the case of a 17 year old child, it would not seem to me to be lawful for a local authority to postpone the taking of a decision even for a short period on the basis that by postponing that decision the child will have reached the age of 18 before the decision is taken. Thus if the decision on 10 March had been “if we were to take the decision today, this child would be in priority need, but we will postpone it until tomorrow when she will be 18 and circumstances will have changed” that would in my view have been an unlawful decision” (paras 37 and 38). Waller LJ continued: “…The question to which I have not found it easy to provide a clearly defined answer, is whether the authority in making its inquiries under section 184(1) as to what duty is owed to a 17 year old is entitled to persuade the parties to take up some form of mediation procedure before reaching its final decision, (providing temporary accommodation meanwhile); or whether it has to reach a decision without the aid of mediation, and then use mediation as a means of fulfilling its full duty to provide accommodation under section 206 on the basis that if mediation works, the authority would be “securing suitable accommodation from some other person” or possibly giving...assistance as will secure that suitable accommodation is available for some other person”; see section 206(1)(b) and (c)…In my view it cannot be right that an authority can persuade a family into mediation while a child is 17 and use the time that the mediation would take to deprive the child of a right that it would have had without mediation. …but if an authority are of the view that a child genuinely has no place to go unless a mediation can sort matters out, and a mediation cannot take place without depriving the child of a right it would otherwise had had, then in my view the authority has to take the view that its full duty must be performed and use mediation in order to fulfil that duty” (para 39 and 41).

[80]Jonathan Parker LJ agreed and added “It goes without saying that mediation is an enormously valuable tool in the resolution of problems of homelessness. However the process of mediation is not to be confused with the duty of a local housing authority under section 184 of the Act to make inquiries as to what (if any) duty it owes to an applicant under Part VII of the Act. In my judgment the process of mediation is wholly independent of the section 184 inquiry process. The two processes may of course proceed in parallel; and if mediation is successful while the section 184 inquiry process is still on foot, then of course there will be no need for the latter process to continue any further. On the other hand, a local housing authority has, in my judgment, no power to defer making inquiries pursuant to section 184 on the ground that there is a pending mediation.” (para 42).

[81]Jacobs LJ agreed with both judgments and added:

“A local authority under section 184 has a duty to investigate and decide. It may not postpone or delay either the investigation or the decision.”

[82]Mr Beglan submitted that the dicta cited above in Robinson do not assist the claimant because they were concerned with a case in which the council had an impermissible collateral motive for deferring or postponing its duties under the Act. It is of course right that in that case it was alleged that the council acted with the collateral motive of deferring its decision until the appellant became ineligible for assistance. However in my view that factor is not the basis of the dicta which I have quoted. It seems to me that there is an analogy between the beneficial advantages in respectively the mediation process and the rent deposit scheme which the two councils in Robinson and this case considered a justification for deferring in Robinson and ceasing in this case inquiries which it would otherwise have had to make. It is clear that all three members of the Court of Appeal considered that to be an illegitimate approach and an impermissible reason for not performing the duty to inquiry under section 184.

Raw, R (on the application of) v London Borough of Lambeth [2010] EWHC 507 (Admin)

The Background

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The legislative framework

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