Carney, R (on the application of) v Bolton At Home Ltd [2012] EWHC 2553 (Admin)

Case No CO/1984/2012

[2012] EWHC 2553 (Admin)

IN THE HIGH COURT OF JUSTICE

Venue MANCHESTER CIVIL JUSTICE CENTRE, Manchester Civil Justice Centre

1 Bridge Street West

Venue Manchester

M60 9DJ

Date Monday 6 th August 2012

Before

HIS HONOUR JUDGE STEPHEN DAVIES

SITTING AS A JUDGE OF THE HIGH COURT

Between

The Queen on the Application of LAURA CarneyClaimant

Bolton at Home LimitedDefendant

(DAR Transcript of

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Mr Andrew Byles (instructed by Fieldings Porter, Bolton) appeared for Claimant.

Mr Robert Darbyshire (instructed by in-house solicitor) appeared for Defendant.

Judgment

His Honour Judge Stephen Davies:

[1]This is an application for judicial review brought by the claimant, Laura Carney, against the defendants, Bolton at Homes Limited. In these proceedings she seeks to challenge the defendant's decision, made initially on 14 September 2011 and maintained by subsequent review decisions made on 19 October and 24 November, to refuse to allow her to be allocated a particular property in a particular area of Bolton, due to previous antisocial behaviour committed by her whilst she was previously resident within that same area, in a property rented by her mother from the Bolton Metropolitan Council, her behaviour being in part the reason for her mother being evicted from that property in 2009.

[2]Permission to bring this claim was granted by Simon J on paper. The claimant has produced a witness statement which sets out her evidence in relation to this case, and the defendant has produced two witness statements from a Mr Trevor McKean, a Neighbourhood Safety Manager with the defendant, and a Ms Gemma Parlby, a Senior Operations Manager with the defendant. I have had the benefit of skeleton arguments submitted by counsel for the claimant and for the defendant, which they have supplemented orally before me today, and I am most grateful to them both for the helpful and succinct way in which they have made their submissions to me today.

[3]The facts relevant to this case can be stated relatively shortly and are as follows. The claimant, Ms Carney, is a young woman who was born in June 1990, and was thus 21 years of age when the decisions the subject of this challenge were made. She was brought up in the Breightmet area of Bolton and, as I have said, she lived in a property which was rented by her mother from the local council until April 2009. Previously the council had sought and obtained a suspended order of possession against her mother, based on allegations of antisocial behaviour. The amended Particulars of Claim in those proceedings, to which I have been referred, contained a substantial number of allegations. Although the majority did not refer to this claimant as opposed to other members of her family, there were general allegations of antisocial behaviour made against the children who lived at the property, without specifying whether or not that included the claimant, and there were also fourteen specified allegations which did relate to the claimant, ten of which, it appears, were admitted by the claimant's mother at the hearing, relating to events occurring between 2005 and 2007. It is not necessary to refer to the detail of those allegations; the most serious ones are summarised both by Mr McKean and by Ms Parlby in their evidence. Mr McKean in particular, who as Neighbourhood Safety Officer has knowledge of these matters, says that: the claimant's behaviour had occurred over a number of years; it was relentless, despite warnings given by the defendants to her and her family to curb her behaviour; it was violent, thus admitted allegations included allegations of stone-throwing and the theft of a bicycle from a young boy with threats of violence; and many residents in the area were relocated due to living in fear of the actions of the claimant and her family, with one resident having had lit plastic pushed through her letterbox.

[4]There was subsequently an application by Bolton Council to activate the order of possession, for which purpose a number of further allegations were made. Again it is fair to say that the majority related to conduct of family members other than the claimant and that the only allegation, so far as the claimant is concerned, is an allegation which concerned an incident where it was said that the claimant and her sister tried to lock the gates to a local leisure centre car park. The order was activated however, and the claimant and her family had to leave the property in April 2009.

[5]In summer 2011 the claimant made application for housing to the defendant which, as I understand it, is now the owner of part of the housing stock formerly owned by the Bolton Metropolitan Council, and on 7 September 2011 the defendant made a provisional offer to the claimant of a tenancy in relation to a property in the Breightmet area, but that offer was specifically stated to be subject to a verification process.

[6]At this point I should refer to the relevant policies which are adopted by the defendant and promulgated pursuant to the legal obligation provided for by Section 106(2) of the Housing Act 1985. They are contained in the Bolton Council and Bolton Community Homes – Lettings and Allocation Policy 2009, and supplemented by a policy statement produced by the defendant itself.

[7]Section 4.4, which has featured in this case, deals with the circumstances in which an applicant may be regarded as unsuitable to be considered for a tenancy by the defendant, and refers to unacceptable behaviour serious enough to make the tenant unsuitable to be a tenant at that time. The examples which are given include antisocial behaviour. That section, as it seems to me however, is not directly relevant to the present case because, as I will explain, the defendant has never in fact decided that the claimant is not suitable to be a Bolton at Home tenant; what they have decided is that she should not be offered accommodation in the Breightmet area of Bolton. That restriction is dealt with in section 8 of the policy entitled Short Listing and Offers of Accommodation, which provides that:

"In exceptional circumstances the defendant may withdraw an offer of accommodation, for example…"

[8]One specified circumstance is stated to be where the circumstances affecting the customer's application have not previously been ascertained. So far as this case is concerned, the relevant circumstance is that identified at the second bullet point of paragraph 8.2.6, which provides that this may be used to bypass a customer who is at the top of the shortlist if the letting would result in a customer previously evicted for antisocial behaviour being rehoused in the same area as the behaviour took place, even if the customer is now suitable to be re-housed. It is clear, as Mr Darbyshire for the defendants has submitted, that the purpose of this is to ensure that people previously having been found guilty of (or having accepted that they have committed conduct amounting to) antisocial behaviour within a specified area are not to be given tenancies in that area in circumstances where that would prejudice good tenant relations and good management of the housing stock. I note that in paragraph 1.7 of the defendant’s published policy statement, entitled “the Aims and Objectives of the Lettings Policy”, there is a particular reference in paragraph 1.7E to one of the aims of the lettings policy as being to promote sustainable communities by, amongst other things, assisting in the creations of stable communities by ensuring that customers deemed to be unsuitable by reason of unacceptable behaviour are not rehoused and/or are considered only for suitable offers of accommodation by applying appropriate restrictions or conditions in individual cases.

[9]That purpose of that policy statement is stated to be to supplement the defendant's allocations policy and, in a section entitled "Evidencing Poor Conduct", it is said that the defendant will verify references and will carry out police checks to obtain as much evidence as possible about an applicant's conduct prior to an allocation of accommodation. It continues as follows:

"Bolton at Home considers a minimum 12 month period where there is no evidence to suggest poor behaviour to be satisfactory." "

However, this timescale may be extended should the previous behaviour have formed part of a regular pattern, ie where every 14 months an incident occurred. In these instances a housing manager can legitimately request a longer period in which an applicant must demonstrate good conduct to have occurred prior to allocation of a property."

[10]Going back to the chronology of this case, on 14 September 2011 a housing officer wrote to the claimant stating as follows:

"[having] carried out a verification check [the claimant had been identified as being] guilty of unacceptable behaviour... Details identified during verification deemed this area not suitable due to serious ASB [short for antisocial behaviour] incidents which led to your family being evicted in April 2009. You have the right to request a review of this decision, which must be requested in writing… within 28 days..."

It is fair to say that that was a relatively short and succinct letter which did not set out much by way of detail, and it provoked a detailed letter in response from the claimant's solicitors, requesting a review and making a number of points in her favour.

[11]That was then the subject of a further decision letter on review made by Mr McKean on 19 October 2011, in which first he clarified that the defendant has not suspended the claimant from the housing register, but simply put in place a restriction that she would not be rehoused in the Breightmet area of Bolton. He then went on to say this:

"The offer of accommodation …was withdrawn because of your client’s involvement in an antisocial behaviour case that led Bolton at Home to successfully obtain an eviction notice at [the previous property]."

[12]The claimant was notified of her right to a further review was given, and again that was taken up in a further letter from her solicitors, but the decision was again maintained by a decision letter on 24 November 2011 written by Ms Parlby, which stated:

"In the case of your client I can confirm that a history of poor behaviour was identified and that this behaviour was linked to the area in which the allocation was refused. For this reason Mr McKean felt the allocation was not appropriate. I uphold that decision. I do not find that an allocation to Ms Carney in this location to be suitable. I would, however, consider an allocation to Ms Carney in a different location and would urge her to express interest in properties in different locations."

[13]There was then in February 2012 an exchange of correspondence in accordance with the pre-action protocol, and on 24 February 2012 these proceedings were issued. That brings me immediately to the first issue in this case, which is the question of delay. The claim was made at the very end of the three-month period specified by the rules for bringing judicial review claims. The defendant submits that the claim was not made promptly so far as the third decision is concerned and in any event was not made within three months of the first and second decisions. The defendant's argument is that there is no proper or sufficient explanation or justification advanced for waiting until the last moment before bringing this claim. The claimant, on the other hand, points to the fact that she quite properly followed the review procedure, and also that she quite properly engaged in the pre-action protocol procedure and waited until that was completed before issuing proceedings. It is also right to observe that when the application for permission came before Simon J the points about delay were also raised but that he did not express an opinion one way or other so far as delay was concerned.

[14]I take the view that in a case like this, where the claimant has taken advantage of review procedure afforded to her, and has engaged in the pre-action protocol process, both of which are intended to avoid the need to have to go to law with the attendance costs and delays, and where there is no clear evidence before the court of any prejudice to the defendant or any others arising out of any delay in bringing proceedings, a claimant should not be prevented from having her substantive claim determined by the court simply through having issued the case on the last available date within the three-month period. I therefore do not consider that this case should be barred by reason of delay, and I proceed to deal with it on its substantive merits.

[15]That then brings me to the six grounds of claim identified in the statement of grounds. The first ground is an allegation that the claimant failed to have regard to relevant considerations and had regard to irrelevant considerations. The complaint is in effect twofold. Firstly it is said that the defendant had regard to the behaviour of the claimant's family overall rather than looking, as they should have, only at the claimant's behaviour itself. However, it seems to me that there is no evidence to support that conclusion. First of all it is clear from the correspondence to which I have referred that these points were made to the defendant by the claimant's solicitors, and secondly it is clear from the first and the second review decisions that the only behaviour which was had regard to was the claimant's own behaviour. That is confirmed in terms, it seems to me, in the witness statements of Mr McKean and Ms Parlby.

[16]Secondly, it is said that the defendant failed to have regard to relevant circumstances, the first being the fact that these incidents of antisocial behaviour had occurred some years previously when the claimant was under the age of 18, whereas at the time of the decisions complained of she had achieved the age of 18, she had changed her lifestyle, she is now a mother, and she has had no subsequent incidents of criminal behaviour or antisocial behaviour recorded against her, even though she has been regularly visiting the Breightmet area, where she continues to have family and social connections.

[17]I accept that those are of course relevant considerations, but again it seems to me that there is no evidence whatsoever to the effect that the defendant did not have regard to those matters. It is clear, I consider, from the witness statements of Mr McKean and Ms Parlby that they did have regard to the circumstances of the claimant and, in particular, to how long ago the previous incidents of antisocial behaviour had occurred, and there is no indication to the contrary in either of their review letters. I therefore am not satisfied that ground 1 has been made out.

[18]Ground 2 is a challenge to the decision insofar as it was made by reference to paragraph 4.4 of the allocation policy. However, as I indicated during the course of the argument, and as Mr Byles, who appeared for the claimant, realistically accepted, this is not a decision under paragraph 4.4 -- a decision whether or not to allocate any property at all to the claimant -- it is a decision under paragraph 8.2.6, whether or not a property within a particular area should be allocated, and therefore I am satisfied that ground 2 is not relevant in this case.

[19]Ground 3, however, is a challenge to that particular policy. There is a preliminary issue which is whether or not the wording of paragraph 8.2.6 is apt to cover the situation of someone in the position of the claimant, who was not the tenant previously evicted but who was a family member of the tenant previously evicted and whose conduct was in part the subject matter of the earlier proceedings which led to the eviction. Mr Darbyshire, for the defendant, has submitted that both on the wording of the clause itself and if necessary by adopting a purposive approach to the construction of that clause that requirement is met, first because the claimant is a customer in the sense that she is has made an application for housing to the defendant, which is the definition of a customer in the policy, and, second because she has previously, as determined by the defendant, accepted by her mother and not challenged by her, committed antisocial behaviour, and, third that in ordinary language she has been evicted as a result of that behaviour, in the sense that she was part of the whole family who were all evicted as a result of antisocial behaviour, even though the eviction order could only have been made against her mother as the tenant.

[20]I agree with those submissions. It seems to me that this policy has to be construed in a sensible way; it is not a statute or a regulation, and if one looks at the facts of this case it is quite clear that the claimant is someone who has previously been evicted for antisocial behaviour.

[21]The second question then is what, if any, restrictions are, or should properly be, imposed on the defendant's operation of that clause? It was submitted by Mr Byles that the clause should be read in conjunction with the policy statement, and in particular the section headed "Evidencing Conduct" to which I have referred. Mr Byles brought in under ground 3 the challenge under ground 4, which is a challenge to the operation of that policy statement, because what Mr Byles submitted is that this is clearly not a case where the claimant has been guilty of poor behaviour within the 12-month period immediately before the application was made by her; and, secondly, that there is no previous regular pattern of poor behaviour where a longer period could legitimately be requested. In reply Mr Darbyshire submitted that this section only applies to the question as to whether or not someone should be accepted as a tenant at all, not to a decision under paragraph 8.2.6. Mr Darbyshire also submits that even if that is not the case, nonetheless the evidence in this case shows that the claimant had been guilty of a regular pattern of previous poor behaviour such as would justify an extended period.

[22]Again I prefer Mr Darbyshire's submissions on these points. It seems to me firstly that the supplementary policy is directed to the question of accepting someone as a tenant, not to refusing someone an offer in a particular area, but also, and in any event, it is clear in my judgment that the evidence to which I have referred shows that there was a regular pattern of previous poor behaviour such as would justify an extension of the timescale and, as I find and address in more detail when dealing with the next ground, I am satisfied that the decision in this case cannot be categorised as irrational or otherwise unreasonable within the principles established in the Wednesbury case.

[23]The next ground of challenge, ground 5, is in short that on the facts of this case the decision not to offer Ms Carney accommodation in the Breightmet area is irrational. Mr Byles has drawn my attention to the relevant facts and submits that in this case it simply cannot be said that it would be rational to deny the claimant accommodation in the area of her choice where she has connections, given the age and nature of the previous complaints and the current circumstances in which she finds herself. Mr Darbyshire, on the other hand, submits that this is a case where the court should accept that the defendant, as the relevant registered social landlord, has knowledge and experience to apply when making these decisions which the court does not and further that on the facts of this case the conclusions drawn by the defendant, as explained by Mr McKean and Ms Parlby in their witness statements, cannot be dismissed as irrational or unreasonable. To the contrary, in his submission, they were both rational and reasonable. He referred me in particular to paragraph 4 of Mr McKean's witness statement, where he explained that many of the residents who had given evidence at trial were, and still are, residents in the area and were subject to significant antisocial behaviour at the hands of the claimant and her family. He said that many still fear reprisals from the claimant and her family after facing her at trial, the claimant having attended the hearing. He said that giving a home in the immediate locality to the claimant would be upsetting to those residents in itself. He said that more seriously still, it would be a recipe for recreating the antisocial behaviour which the defendant had begun proceedings to stop. He continued in paragraph 5 as follows:

"I gave careful consideration to the [defendant's] policies, in particular paragraph 8.2.6 of the Lettings and Allocations policy, when I reviewed the evidence before me."

And I have already referred to his statement that the behaviour of the claimant had occurred over a number of years and that it was relentless.

[24]In paragraph 7 he made it plain that:

"The Defendant's decision has never been simply to refuse to rehouse the claimant only that she should not be housed in the Breightmet area."

And then he said this:

"By way of clarification, I would be minded to consider offering the Claimant a home in South Breightmet, over the Bury Road, including the of Beechcroft Avenue area and the Blenheim Road area. This would also be limited to a one bedroom property as the Claimant has no access to her daughter. The Claimant has failed to amend her Housing Application to notify the Defendant that she has lost access to her daughter and needs to do so immediately."

[25]Mr Byles focussed on that part of the statement, and submitted that this in itself demonstrated that the decision to refuse the claimant accommodation in the whole of the Breightmet area was irrational, and the decision should have been more tightly focussed by reference to specific parts of the area. Mr Darbyshire submitted that this was simply an indication by Mr McKean of the approach which would be followed, perfectly sensibly, in the future, should a proper application be made in accordance with the claimant's current circumstances, and that it showed that the defendant was adopting a reasonable approach in all the circumstances.

[26]Again I have to say that I prefer the defendant's submissions on this point. It seems to me that although the claimant had a number of points which she was entitled to and did make to the defendant through her solicitors when requesting a review, the decision made by the defendant cannot, in my judgment, be demonstrated to be irrational in the sense that it is a decision which no reasonable registered social landlord in the position of the defendant could have come to. The reality, in my judgment, is that the claimant had been guilty of serious antisocial behaviour; it is not behaviour which can be disregarded as being merely historic; it is clear that the defendant gave serious consideration to her previous antisocial behaviour. It was entitled to have regard not just to the claimant’s own personal interests and circumstances but also to the interests and circumstances of the other residents, because the claimant’s behaviour had affected their interests. It was also entitled to have regard to its own interests, in creating sustainable communities. Having regard to all of those circumstances, I am quite satisfied that the defendant was entitled to reach the decision which it did. In those circumstances I find against the claimant in relation to ground 5 of her challange.

[27]Ground 6 was a challenge based on a failure to provide reasons, which is not pursued, rightly in my judgment. The end result is that I am satisfied that the claim must fail and should be dismissed. MR DARBYSHIRE: My Lord, I would seek my costs of the judicial review. Of course the claimant is publicly funded and is entitled to all the protection that come with that. HHJ DAVIES: Yes. I will make an order as follows:

“1. Claim dismissed. 2. The claimant shall pay the defendant's costs of these proceedings in any event, such order not to be enforced without further order of the court, the claimant being in receipt of a public funding certificate.”

MR BYLES: Yes my Lord. HHJ DAVIES: And you want a detailed assessment of your costs? MR BYLES: Yes please, my Lord. HHJ DAVIES:

“3. There shall be a detailed assessment of the claimant's publicly funded costs.”