Yekini, R (On the Application Of) v London Borough of Southwark [2014] EWHC 2096 (Admin)

[2014] EWHC 2096 (Admin)Case No CO/8975/2013
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 28 March 2014
Strand
London WC2A 2LL
B e f o r e:
MICHAEL FORDHAM QC
(SITTING AS A DEPUTY HIGH COURT JUDGE)
Between
THE QUEEN ON THE APPLICATION OF OLUBUNMI YEKINIClaimantTHE LONDON BOROUGH OF SOUTHWARKDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Mr Adrian Berry (instructed by Cambridge House Law Centre) appeared for ClaimantMr Donald Broatch (instructed by Southwark LBC Legal Department) appeared for Defendant
J U D G M E N TTHE DEPUTY JUDGE:Introduction
[1]This is a claim for judicial review with the permission of Andrews J granted on 5 November 2013. In essence, the case is about the application of Part VII of the Housing Act 1996, in particular sections 193(2) and 206, and the Children Act 1989 section 17, in the context of a "Zambrano carer" where such a person had applied for Part VII housing assistance prior to 8 November 2012. The concept of a Zambrano carer, being derivative residence under EU law, derives from the case of Zambrano [2012] QB 265 and is described in regulation 15A(4)(a) of the Immigration (European Economic Area) Regulations 2006 SI 2006/1003. It involves an individual who is primary carer of a British citizen resident in the UK in circumstances where the British citizen would be unable to reside in the UK or another EEA State if that carer were required to leave. The British citizen in the present case is a little boy, aged four.[2]The key facts are as follows. In February 2012 the claimant, who is the mother of that little boy, made an application for Part VII housing assistance. On 4 March 2013, the defendant local housing authority formally communicated its positive decision on the claimant's Part VII eligibility for assistance with accommodation. The defendant was accordingly satisfied of the requirements arising under section 193(1) of the 1996 Act and owed the duty in section 193(2) in circumstances where it was for the defendant to satisfy itself on the question of the claimant's eligibility (see section 184(1)(a), section 185(2) and regulations thereunder).[3]On 14 March 2013 the defendant terminated the claimant's licence to occupy hostel accommodation on the basis of rent arrears in an amount just under £2,000. The claimant was evicted. In taking that action, the defendant, in the light of its views as to the proper interpretation of the 1996 Act, declined to acknowledge any power to allow the claimant to stay in housing on the basis of a nil or peppercorn rent. The key provision in that regard, to which I will return, is section 206(2)(a).[4]From 2 April 2013, the claimant and her children were accommodated on an ongoing basis in bed and breakfast accommodation. That action was taken pursuant to statutory powers to safeguard and promote the welfare of children in need under section 17 of the 1989 Act. In particular, section 17(6) which empowers a local authority to provide accommodation; and section 17 (7), which provides that such assistance may be unconditional as to any repayment required of those who are accommodated. In taking that action pursuant to that statutory provision the defendant, as local housing authority, again by reference to its interpretation of the 1996 Act, declined to recognise any suitability requirement as might arise under that scheme in relation to B&B accommodation, and in particular the provisions of the Homelessness (Suitability of Accommodation)(England) Order 2003 SI 2003/3326, articles 3 and 4, which include what, on the face of it, is a six-week maximum for B&B accommodation to be regarded as suitable.[5]On 11 July 2013, the claimant lodged this claim for judicial review, contending in particular that the defendant had misappreciated the statutory schemes and defaulted on its statutory duties under the 1996 Act, including in its approach to section 206(2)(a).[6]Subsequently there were two key developments. First, on 9 January 2014 the Secretary of State for the Home Department, to whom the claimant had made an application for a derivative residence card on the basis that she was a Zambrano carer, refused that application. That was a matter which arose under the Immigration (European Economic Area) Regulations 2006 SI 2006/1003: see regulations 15A and 18A. In her reasoned decision letter, with a deemed date of service of 15 January 2014, the Secretary of State explained that in her view there needed to be compelling reason presented as to why the British citizen child's father could not assume full parental responsibility for his care and the Secretary of State was not satisfied that adequate evidence on that point had been supplied by the claimant. That decision is the subject of an appeal.[7]Secondly, on 3 March 2014, the claimant moved out of temporary B&B accommodation and into self-contained accommodation in Rochdale with her three children, ages one, four and seven. That was arranged by the defendant social services department by reference to section 17(6) of the 1989 Act. At that stage too, in the light of the defendant local housing authority's interpretation of the 1996 Act, it was not acknowledged or recognised that any relevant duties as to substance or procedure, including in relation to prescribed approaches to suitability of accommodation, needed to be fulfilled. The story is told very helpfully in a witness statement by the defendant's Mr Swift, dated 24 March 2014. The Zambrano predicament[8]In his written and oral submissions, Mr Broatch, for the defendant, described as a "predicament" the position in which a local housing authority is placed in circumstances where the claimant is (but as in the present case has now been put into doubt) a Zambrano carer. I agree with Mr Broatch's characterisation of the situation which the statutory scheme has produced.[9]Essentially, two things happened in that scheme on 8 November 2012. The first related to eligibility for Part VII housing assistance and the second related to eligibility for housing benefit.[10]As to the first, the Zambrano carer's eligibility for Part VII assistance was removed by 2012 Regulations: see the Allocation of Housing and Homelessness (Eligibility) (England) (Amendment) Regulations 2012 SI 2012/2588 and in particular regulation 2. That was an exclusion of a category of persons in the context of eligibility under the 1996 Act. It took effect from 8 November 2012, but deliberately subject to express transitional provisions in regulation 3. This regulation provided that the new amendments were not to have effect in relation to (for present purposes) an application for Part VII 1996 Act housing assistance provided that that application had been made before the coming into force of the Regulations; that is to say, prior to 8 November 2012.[11]As to the second, eligibility for housing benefit in the case of a Zambrano carer was removed at the same time in provisions made entitled the Social Security (Habitual Residence) (Amendment) Regulations 2012 SI 2012/2587: see regulation 5. Mercifully, it is not necessary to go into the detail of the housing benefit scheme. It is common ground that there was previously a housing benefit entitlement that was removed from that date. However, that exclusion contained no equivalent transitional provision protecting the pre-8 November 2012 applicant. Counsel on both sides told me that, so far as they were aware, it is the first time that a Part VII 1996 Act entitlement has not been matched by housing benefit eligibility in the case of impecunious individuals affected by these provisions.[12]The “predicament”, therefore, for the individual and the relevant local housing authority was that the situation could arise where there was both the right to housing assistance but also any inability to meet the rent in the light of the absence of housing benefit. To complete the predicament, it is also common ground that the mere inability to meet rent, such as might trigger the ability to repossess and evict, would not of itself constitute intentional homelessness so as to bring a 1996 Act duty owed to the relevant individual to an end for the purposes of section 193(6). The key questions of law[13]For the claimant, Mr Berry advances two key propositions. Firstly, he submits that section 206(2) of the 1996 Act on its proper interpretation would empower a local housing authority, in principle, to charge a nil rent or peppercorn rent. I have already indicated the materiality of that first proposition in the facts and circumstances of the present case. Indeed, in correspondence (for example a letter dated 19 February 2013) the defendant had expressly ruled out, as being legally impermissible, the provision of rent-free accommodation under Part VII. That remains its position as to the proper interpretation of the statutory scheme and I have heard submissions in relation to that issue.[14]The second key proposition advanced by Mr Berry is as follows. Where a duty to secure housing assistance arises under section 193(1) and (2) of the 1996 Act, and that duty has not ceased in a statutorily prescribed way (see section 193(3)), the duties and requirements of Part VII imposed by Parliament on the local housing authority continue. They continue, he submits, even where action has been taken, in the case of an impecunious individual unable to pay any significant amount of rent, and where such provision as is made for that person constitutes accommodation provided for all children in need under section 17(6) of the 1989 Act.[15]The materiality to this case of that second proposition is clear from the narrative above. The defendant's position has been and remains that in circumstances where the claimant was unable to meet any rent payments the duties which would otherwise have continued for the purposes of Part VII of the 1996 Act have, for all relevant enforcement purposes, fallen away, the central duty having become unachievable. The defendant's position is that it has properly been making provision under, and exclusively under, the 1989 Act: Part VII is no longer relevantly in play. This is discussed in the witness statement of Mr Swift, in particular paragraphs 36 and 38. The defendant has confirmed its position that no discharge letter (that is to say describing the 1996 Act duties as having come to an end) has been provided in this case (see paragraph 6.12 of the defendant's grounds of defence), earlier indications having been given that one might be imminent.[16]I shall need to return to the arguments on both sides. Adjournment[17]On 21 March 2014, the defendant authority issued an application returnable at the substantive hearing on 26 March 2014 for the judicial review proceedings to be adjourned or stayed. The basis of the application primarily focussed on the adverse decision of the Secretary of State in relation to the derivative residence card. As Mr Swift put it in paragraph 43 of his witness statement, there was a "newly arising uncertainty as to the status of the claimant." As Mr Broatch submitted, this is, therefore, a case where Zambrano carer status has been rejected by what he described as the primary public authority charged with considering that issue, the Secretary of State for the Home Department. That, he submitted, was something clearly capable of materially affecting the position, particularly in circumstances where the point would be clarified one way or the other once the appeal, currently fixed for 12 August 2014, was determined.[18]This development, submitted Mr Broatch, undermined the whole factual premise for these judicial review proceedings. They gave rise to an unsafe hypothesis for these proceedings to continue to be argued or determined. Mr Broatch submitted that, as yet, the defendant authority had not decided that it too would adopt the same adverse assessment of the claimant as a Zambrano carer as had been adopted by the Secretary of State. Nevertheless, he submitted, that was plainly was a course which the defendant authority could have taken. Had it taken that course, any question of any statutory duties owed to the claimant would then have become the subject of internal review processes and a potential County Court appeal. Even then, he submitted, those were steps which were likely themselves to be stayed or adjourned while the Secretary of State's decision was under appeal.[19]Mr Broatch described the real concerns, on the part of his client authority, in this Court entertaining argument and deciding questions of law and statutory duties in proceedings which were, on the face of them, academic as things stand. He submitted that that was a matter of particular anxiety where the court might impose onerous statutory duties on the defendant authority, relevant equally to other cases and other authorities, with ramifications elsewhere and constituting a significant disadvantage to the defendant authority if its arguments of substance were rejected. If, he submitted, the claimant's appeal against the Secretary of State's adverse decision was unsuccessful, then these issues would not arise for resolution in the present case were the defendant authority to follow the same course and adopt the adverse outcome. On that scenario, submitted Mr Broatch, the unnecessary costs of returning to court to argue these issues could not arise and would have been avoided, leading to a saving in costs.[20]Finally, Mr Broatch submitted by reference to the recent provision of accommodation in Rochdale that the defendant, a London local authority, had made provision for the claimant and her children which involved no hardship or disadvantage for them were these issues to remain undecided and this claim stayed or adjourned pending clarification of the underlying factual premise as to whether the claimant is or is not a Zambrano carer applying the relevant tests.[21]Mr Broatch had a secondary submission in support of an adjournment or stay, and it was this. The Zambrano predicament, with the mismatch between housing benefit entitlement and housing assistance entitlement, has itself he submitted been rendered legally uncertain by an ongoing legal challenge as to the legality of the housing benefit exclusions introduced in the 2012 Regulations. One possible outcome to that extant legal challenge is that the mismatch would be removed and therefore the conundrum solved by a more direct route which was capable of making a difference to the nature of the arguments and the need to resolve them in the present case.[22]I refused the application for an adjournment or stay, and I will give my reasons here for doing so. In my judgment, the starting point is that the claimant's position as at today as against the defendant authority is that she has been assessed by it as a Zambrano carer for the purposes of eligibility under the statutory scheme with which the defendant is concerned. No adverse decision on that issue has been made or notified by the defendant in relation to the claimant. Nor does it automatically follow that an adverse decision by the Home Secretary would necessarily lead to such action by a local housing authority, still less in circumstances where the Secretary of State's assessment, which is different from the housing authority's own assessment, is disputed and the subject of proceedings.[23]I accept, as Mr Broatch cogently submitted, that a court ought to be slow to hold against a public authority an act of benevolence (my word, not his), in the context of whether to continue to recognise a state of affairs or whether to make a fresh and immediate adverse decision. I do not, however, accept that by refusing to adjourn or stay these proceedings the court is holding against the defendant authority, an act of benevolence on its part. Rather, in my judgment, the court is starting from the legal logic of the position of what the authority has very properly decided that it should do, in the light of the current uncertainty as to the Secretary of State's position.[24]In my judgment, the position as to whether the issues before the court were academic, would have been materially different if the statutory scheme were differently designed. Parliament could, in the 1996 Act, have provided that eligibility for Part VII housing assistance was triggered by a status conferred by the Home Secretary or that it was removed should a status be declined by the Home Secretary. Had that been the position, I can readily see the force of the arguments that, on the face of it, issues would be academic once the Secretary of State has reached an adverse decision and refused that status.[25]The Court of Justice of the European Union in Dias (European citizenship) [2011] EUECJ C-325/09 described at paragraph 49 residence permits as declaratory not constitutive. Under the statutory scheme with which this case is concerned, the question whether the claimant is a Zambrano carer is not a question of status recognised by the immigration authorities but rather a question of underlying objective fact and eligibility which it is for the defendant authority to assess within its competence: see, for example, sections 184(1)(a), 185(2) and 193(1) and the 2006 Regulations prior to the exclusion for the future of Zambrano carers.[26]I accept, of course, that the appeal against the Secretary of State's decision could fail; that the defendant could, in those circumstances, decide that it was appropriate to follow the same conclusion in discharging its own competence and assessing the facts. There are other outcomes. Those, however, in my judgment, are hypothetical questions, none of them being questions for this court to resolve or predict. True, the court in these proceedings will be deciding contested questions of law, but they are questions which have been squarely raised and are material in the context of the claimant and these proceedings. All cases, of course, turn on their particular facts and circumstances where the court is exercising a judgment as to what course is appropriate.[27]There are cases, for example, where a turn of events means that a set of proceedings is incapable of making any material difference in relation to the individual who brings the case before the court. (Sometimes those cases are allowed to be argued, particularly if there is a public interest in resolution of issues and the case is to be regarded as a test case.)[28]But that is not, in my judgment, the situation in the present case. It cannot be said that the arguments, as things stand, are incapable of making a difference. Indeed, on the legal position in this case as it currently stands, they are directly relevant to the legal relationships between the parties.[29]As to the saving of costs, that, in my judgment, would have been a submission with greater force had the position been that an adjournment was being sought or the defendant were in a position to seek it at some earlier stage in the litigation. But the reality is the parties had incurred costs to the extent of being prepared to come to court and ready to argue the substance. I do not say any of that by way of any implied criticism of anyone, but, in my judgment, it is material when I am evaluating the arguments. That includes the question of avoiding the costs of parties coming back to have that substantive argument at some future hearing, which, had I adjourned the proceedings and sent the parties away, on one set of hypotheses would have been exactly what would have happened and been incurred.[30]As to the housing benefit challenge, that, as it seems to me, might have been a basis for a stay at an earlier stage. Indeed, on the face of the documents, it appears that questions of joinder of the Secretary of State and stays were previously considered. However, be that as it may, having heard the submissions in the current circumstances myself, I am not satisfied that the housing benefit challenge was one that would justify the stay or adjournment of these proceedings, particularly in circumstances where the costs of preparation and attendance had been incurred. Again, on the face of the current legal position and relationship between the parties, the issues are live issues, notwithstanding any uncertainty injected in relation to the legality of provisions currently under challenge elsewhere but which, as at today, are valid and enforceable. The defendant's position[31]The defendant's position on the key issues that are before the Court was concisely explained and reasoned out in the written and oral submissions of Mr Broatch. I start with section 206 of the 1996 Act. Mr Broatch's submissions in relation to that provision can, I think, be summarised as follows. He submitted that, unlike other statutory schemes where there are powers to provide rent-free accommodation (he referred to the Children Act 1999 and also to the National Assistance Act 1948), section 206(2) does no such thing. Although its opening words include the word "may", that, submits Mr Broatch, is a permissive rather than a discretionary "may". Section 206(2) reads as follows:
"(2) A local housing authority may require a person in relation to whom they are discharging such functions— (a) to pay such reasonable charges as they may determine in respect of accommodation which they secure for his occupation (either by making it available themselves or otherwise), or (b) to pay such reasonable amount as they may determine in respect of sums payable by them for accommodation made available by another person."
By "permissive" and not "discretionary", Mr Broatch meant that subsection (2) is identifying permissible actions which are open to the authority; it is not conferring, he submits, a discretion to take a different course. In other words, the authority may do (a) or (b), but it must do one or the other.[32]This interpretation, he submits, is strongly supported by the previous subsection, section 206(1), which has three alternative means of discharging a statutory function where the same word "may" is used in what he submits is plainly the “permissive” sense. That provision reads as follows:
"(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 from some other person."
That, submits Mr Broatch, is listing a series of options, each of which is open to the authority, but where it must take one or other of them.[33]The relevant judgment or discretion, says Mr Broatch, is therefore to be found in the relevant limb of section 206(2), namely, in this case, (a). That, he submits, confers on the authority the function of determining what charge or charges it considers are reasonable. But what Parliament has not done is to confer on the authority the power to impose no charge at all. Put another way, zero is not a charge, and therefore cannot constitute a reasonable charge, and therefore there is no power to waive the rent.[34]Broadening out his argument by reference to other provisions within a wider statutory scheme, Mr Broatch relied in particular on the following. He took me to section 24 of the Housing Act 1985, which provides that a local housing authority may make such reasonable charges as they may determine for tenancies or occupation of their housing stock. His submission was that that provision also clearly indicated that one could not have a nil charge. He took me to section 74 of the Local Government and Housing Act 1989, which deals with the housing revenue account, and explained the basis on which housing authorities are expected to deal with their revenue account, and balance the books in the context of the housing subsidy that is provided. That too, he submitted, provided support for the legal impermissibility of providing rent-free accommodation. Mr Broatch took me to section 193 of the Housing and Regeneration Act 2008, which deals with standards set by a regulator in connection with social housing, and submitted that Parliament had empowered the regulator to set maximum or minimum rents, and a minimum rent set by a regulator would plainly constrain any statutory discretion which would otherwise arise. That, submitted Mr Broatch, was itself an indicator as to the impermissibility in law under section 206 of any waiver of the rent. In this context, he also reminded me of general fiduciary duties applicable to local authorities.[35]Turning to the question of the 1996 Act in circumstances such as the present case, where there is an impecunious individual quite unable to pay any level of rent, the submissions of the defendant as to the correct legal analysis were as follows. In such circumstances, although the starting point is the existence of an acknowledged statutory duty under Part VII of the 1996 Act, and notwithstanding that that statutory duty would not have come to an end in any of the ways described by Parliament in section 193 of that Act, the local authority – submits Mr Broatch – can properly turn to other provision. In the present case the provision which came to be made for the claimant under section 17 of the 1989 Act. That statutory scheme is capable of addressing the Zambrano predicament and has been sensibly identified and deployed in the present case. It allows the family to be catered for by reference to the statutory services provided by the social services department, whether assistance or accommodation, including unconditional as to repayment. That is a solution which does not undermine the need for the local housing authority to balance its books as to its housing stock in the context of its 1996 Act duties. It deals with the family's needs, which are relevantly assessed for the purposes of the Children Act, and by reference to the parameters that arise under that carefully crafted statutory scheme. If there is any unlawfulness or unreasonableness or unfairness in that regard, then legal remedies arise and can be pursued.[36]It is wrong, however, submits Mr Broatch, to regard the duties of the 1996 Act as continuing in a case where such arrangements are made and where the individual has been recognised as impecunious and unable to pay any level of rent.[37]That position is, says Mr Broatch, fortified by his submissions in relation to the power (or discretion) which he says is absent in section 206. However, but as I understood his argument, and in any event as I see the logic of his argument, his submissions on this issue are not contingent on him being right in that regard, even if there were a discretion.[38]The central point which Mr Broatch makes in this respect is as follows. In such circumstances where any level of rent would be unaffordable, any housing provision or accommodation that might be secured could not be suitable, and since the statutory duty on the local housing authority is to provide or secure that accommodation is provided which is suitable, its duties must have become, in such a situation, unachievable and therefore legally inert. Put another way, the local housing authority has no power to provide unsuitable accommodation. Therefore, it can owe no duty in circumstances where the only accommodation that could be secured for the individual would, in 1996 Act terms, be unsuitable.[39]The heart of the argument in this respect is to be located in particular in the provisions of a 1996[40]So, submits Mr Broatch, a local housing authority is mandatorily required to adopt a sequence of reasoning when it is addressing the necessary question of suitability, and mandatorily required to address the question of affordability. That question of affordability itself has to be assessed by having regard to the question of costs, including rent. It follows, he submits, that an authority would need to start by identifying what the rent for a property would be, and if the resources otherwise available to the individual could on no view meet that level of rent, the conclusion would then have to be that accommodation is unaffordable and therefore unsuitable.[41]By no avenue permissible under the statutory schemes, submits Mr Broatch, can the authority change that equation either by treating the rent as effectively reduced or excluded or by building into the individual's resources anything other than the limbs set out in article 2(a) of that Order. One would not therefore take into account a discretionary power to waive the rent, even if such a power were to exist (which he does not accept), when considering affordability. Nor, as I understood the logic of the argument, would one take into account the question of whether social services could provide Children Act 1989 section 17 assistance by means of cash so as to offset the liability to pay rent and balance the books, thus rendering accommodation - albeit supplied through the prism of the 1989 Act or funded through the prism of the 1989 Act - affordable and so suitable. Once, says Mr Broatch, one has the impecunious individual and the putative rent, there is no escape from the conclusion of unaffordability and therefore unsuitability and therefore unachievability of the 1996 statutory duties. If they are unachievable then, submits Mr Broatch, whether or not it is right to regard them as having ceased, the fact is they can have no legal purchase. No question of enforcement could arise, and a local authority is entitled to focus on the parameters of the 1989 Act.[42]Once the conclusion is reached that no accommodation can be suitable there cannot, submits Mr Broatch, for example be any question of complying with the particular prescribed approach to location or other non-financial matters that might otherwise have affected the question of suitability for the purposes of the 1996 Act. Nor is there any need to follow any 1996 Act statutory duty to give a notice or allow an internal review.[43]Mr Broatch accepts that his approach to unachievability of the 1996 Act duties does not constitute a category of cessation of duty such as is described in section 193 of that Act. He submits that the limitations of the various limbs described by Parliament, as to the way in which a 1996 Act duty might become legally unenforceable and legally inappropriate in the circumstances, are illustrated by an example which he gave. Mr Broatch's example involved an individual who is owed a duty under the 1996 Act but who subsequently inherits grandmother's house and would be able to go and live there. That, he submitted, would be a situation where the statutory cessation provisions of section 193 would not bite but where it is obvious that no court would regard an ongoing 1996 duty as being owed by the relevant housing authority. General observations[44]I will make two observations before I turn to what, in my judgment, is the correct analysis. The first observation arises because, on the defendant's analysis, the following position is, in substance, arrived at. In a case in which the Zambrano predicament arises – where the individual who is impecunious would need housing benefit but is denied it - the housing duty would become unachievable, through the necessary unsuitability of any accommodation. The observation is this: that comes close in substance to denying the protective consequences of the transitional provisions for which the relevant regulations made provision when excluding for the future Zambrano carers from statutory housing assistance entitlements. In other words, if Mr Broatch is right, the individual protected by the transitional provisions is, for all relevant purposes, likely in effect to be in exactly the same position as a person not protected by such transitional provisions.[45]I have described that as an “observation” for this reason. Surprising though that consequence is (and Mr Broatch accepted that that would be the logic of the position, in my judgment rightly so) the council is entitled to point out that there is this equal and opposite conundrum. If Mr Berry is right, and one way or the other the individual is owed an ongoing duty although unable to pay any rent and not entitled to any housing benefit, then the consequence of his argument would be effectively to replicate the entitlement that would otherwise have arisen, to the same housing benefit that has specifically been denied, by those housing benefit provisions which have deliberately not included any transitional provisions.[46]The second observation I make is that it is clear on the statutory scheme, in my judgment, that there are significant differences between a situation where the 1989 Act section 17 alone is applicable and a situation where the ongoing duties in the 1996 Act are applicable. Mr Broatch, in my judgment, was right to accept that there can be significant differences between the two regimes.[47]I will explain at this stage, by reference to the materials, the nature of some of those differences. First, in the present case, when the claimant and her children were being relocated by reference to the 1989 Act to the accommodation in Rochdale, the authority's Children Act assessment referred to the question of suitability of accommodation which was to be provided to them. On the face of the 1989 Act, there does not appear to be any particular requirement of suitability, although, as Mr Broatch submits, public law duties no doubt will always require of a relevant public authority reasonableness in its actions which may to a large extent come to, in effect, a requirement of suitability. The assessment in this case said:
"In conclusion, the Local Authority accepts that the children are potentially in need within this area due to the risk of homelessness and proposes that it is reasonable and rational to support [the claimant] meeting the children's needs regarding accommodation outside London. [The claimant] should be offered suitable accommodation outside of London and supported in this move."
[48]The fact is though that under the 1996 Act there is a particular prescribed approach to suitability, which, to a large extent, I have already described by reference to affordability and financial factors, as was seen under article 2 of the 1996 Order. Those factors are also described in the Secretary of State's statutory guidance for the purposes of section 182 in paragraph 17.39 and 17.40, which goes on to identify a policy guidance criteria as to what is to be understood by "affordability".[49]There are non-financial criteria as well, prescribed for the purposes of a local housing authority's assessment of questions of suitability, including the six-week bed and breakfast principle to which I referred at the start of this judgment. See the 2003 Order articles 3 and 4, and elsewhere in the statutory guidance, where the approach to suitability is addressed.[50]Specifically as regards location, the 1996 Act raises the need for the housing authority to adopt a particular approach. I was shown section 208 of the 1996 Act in the context of out-of-area placements. That would include a London authority arriving at the conclusion that a family should be accommodated in Rochdale. The starting point under the 1996 Act is that there is a presumption that local arrangements will always be made if reasonably practicable. Section 208(1) reads as follows:
"So far as reasonably practicable a local housing authority shall in discharging their housing functions under this Part secure that accommodation is available for the occupation of the applicant in their district."
[51]Alongside that general statutory starting point there are other applicable parameters. Cited to me was the Homelessness (Suitability of Accommodation) (England) Order 2012 SI 2012/2601, and in particular article 2 which requires the housing authority to take into account the location of the accommodation. This, as I understand it, would be applicable if one were contemplating an out-of-area placement but equally, or to the extent relevant, could be applicable where one were considering a placement within a district. The factors that are referred to in article 2 include, where the accommodation is to be situated outside the district, the distance from the district. Then, more generally, they include the significance of disruption that would be caused by the location to employment, caring responsibilities and education of those in the person's household, proximity of medical facilitates and other support and local services, amenities and transport.[52]As I have already indicated, there are other duties and protections that arise specifically under the 1996 Act. They include rights to be notified of particular circumstances, including where there are conclusions as to statutory suitability, rights of review and consequential rights of appeal. Reference has also been made to the discharge provisions and the decision letters that public law would require to be communicated were the duty to be regarded as having come to an end and to the possible pathway to the expression of a future preference if one is continuing to be accommodated under the 1996 Act. Analysis[53]In my judgment, the correct legal analysis is as follows.[54]It would be within the power conferred by section 206(2)(a) of the 1996 Act for a defendant housing authority to charge a nil or peppercorn rent. That proposition needs to be qualified. The authority should only adopt that course under that statutory power if it was satisfied that such a course was appropriate, in the exercise of its discretion and judgment in an individual case. It would only be entitled, moreover, in law to adopt that course if and to the extent that doing so was a reasonable exercise of discretion and judgment in a public law sense. A defendant authority may very well decide that it is not an appropriate exercise of its discretion and judgment conferred on it by Parliament, in particular depending on the circumstances, the implications for it and others and the alternatives that are available to it to deal with any case which arises.[55]I reach that conclusion notwithstanding that the provisions of section 206 are not phrased as, for example, is section 17(7) of the 1989 Act, where Parliament has provided that accommodation "may be unconditional" before going on to address the possibility of conditions including as to repayment.[56]I am not persuaded, even focusing on the limb in section 206(2)(a), that a local housing authority who has decided that a charge should be nominal or peppercorn, or has decided that a charge should be nil, would not be discharging the judgment described in section 206(2)(a). Indeed, as it seems to me, once one is in the position that a local authority is, on the face of it, entitled to set a level which it considers to be appropriate, there are difficulties logically with where one would draw the line as to the position which would become legally impermissible. For example, £1 a year: whether that would be a charge; or whether only zero would fail to constitute a charge. It seems to me that "reasonable", on the face of it, is bound to be informed by the particular circumstances, and I have already explained why. This will be a matter of discretionary judgment for the local authority.[57]But in any event, in my judgment, section 206(2) in its opening words is conferring a discretion when Parliament has provided that the authority "may" require a person in relation to whom they are discharging such functions to pay a charge or to pay an amount under limb (b). I agree with Mr Broatch as to his analysis of section 206(1) that there are three permissible routes. However, in my judgment, there are two material distinctions, on the face of it, between the nature of that provision and subsection (2). The first is that that is a provision which is dealing with prescribed ways for discharging housing functions. Subsection (2) is dealing with the situation where the authority is discharging functions and is making provision as to something which an authority may, and in my judgment or may not, then choose to do. But the second point of distinction is that Parliament spelt out by the use of the word "only" what the nature of section 206(1) was. By saying an authority may discharge their functions only in the following ways, Parliament was clearly making a provision which identified three alternatives and no other.[58]In my judgment, the effect of Mr Broatch's submissions in relation to subsection (2) is that they are tantamount to reading that discretion as a duty, so that in effect the housing authority shall require a person to pay such reasonable charges as they determine. On the face of it, and for reasons which, in my judgment, are intelligible and involve no difficulty as to the purposes of the statutory provisions, this is, as it appears to be, a discretion. It includes, in my judgment, in an appropriate case a discretion as to whether to require any charge at all.[59]In my judgment, the provisions of the other statutory schemes, to which I have referred and to which I was taken, do not indicate that an alternative analysis of this provision is appropriate or was the purpose of the provision. I see force in the authority being entitled to have regard to the wider statutory picture, should it consider that to be relevant and appropriate, when it comes to exercise its discretion and to choose whether it wants or considers it appropriate in the individual case to decide that there should not be a charge. But that, in my judgment, is the highest that one could put the relevance of the other statutory schemes: for example, the provision as to the local authority's subsidy and housing stock and balancing of its books.[60]The position of the regulator and minimum rents gives rise to different considerations, and were a minimum rent set by a regulator which had the legal consequence that the housing authority was disentitled from adopting as reasonable any lesser charge, I can quite see the legal consequences that that would have for the exercise of the relevant statutory power in this case, and, for that matter, other statutory powers. I was not shown (and this is no criticism) specific provisions or even examples of the imposition of such minimum rents. However, proceeding on the premise that that can properly be a position adopted by a regulator (and I am told that it can be) it does not, in my judgment, follow that this statutory provision is to be construed as allowing reductions in rent but not allowing the authority to decide to impose no or only a minimal charge. If the question arose in a particular case, it would be necessary to analyse what minimum had been set and whether it did have that consequence for this statutory power or whether there was some other legal consequence or non-legal consequence. The matter can be tested in this way: if minimum rents can be set by a regulator, that will affect or may affect the exercise of a statutory discretion as to what the level of rent would be, so the same problem could arise not in the context of whether there should be any charge but in the context of what constitutes a reasonable charge. As I say, that problem, should it arise, would need to be dealt with as to its implications in those circumstances. What it does not, in my judgment, constitute is a factor which assists me in construing the discretion for which Parliament has made provision in section 206.[61]Mr Broatch asked me to analyse this issue independently of authority, and I have done so. There is, however, authority on this point. In R (on the application of Best) v Oxford City Council [2009] EWHC 608 (Admin), Geraldine Andrews QC, as she then was, sitting as a deputy judge of this court, had to deal with the question of whether it was unreasonable for the local authority to decline to impose no charge for the purposes of section 206. Her ultimate conclusion was that there was no unreasonableness on the part of the authority on the facts of that case. In her judgment, the learned deputy judge discussed the statutory power in the light of the submissions that she had heard. Mr Broatch's submission was that those passages were obiter, or were based on different and less extensive argument including as to the wider statutory context, and ought not to be regarded as passages which this court should follow. If necessary, his submission was both that they were not binding and indeed that they were incorrect.[62]The relevant passages on this point in Best included paragraph 22, where, having set out section 206(2),

the judge said this:

"[Counsel] stresses, and I accept, that the Council are not obliged to require an applicant to pay for the accommodation that it provides. They have a discretion to require Ms Best to pay reasonable charges in respect of the accommodation. However, in practice the discretion is usually exercised in favour of charging a reasonable market rent by reference to similar accommodation in that locality."
At paragraph 25,

the judge repeated that:

"Although the local housing authority have a discretion whether or not to charge rent for the accommodation they provide, the nature and terms of the Order demonstrate that Parliament has envisaged that they will probably wish to do so."
That was a reference to article 2 of the 1996 Order.[63]I was shown other passages in the judgment in Best, including paragraph 120:
"The housing authority should never charge rent at a level that they know that the applicant is unable to afford to pay: but if the applicant could obtain a benefit that would enable him to pay that rent and fails to obtain it through his own fault, the housing authority may be entitled to reach the view that he has made himself intentionally homeless if he is evicted for non-payment of the rent. Much will depend on the facts and circumstances of each particular case."
I mention that because that and some other passages in Best were relied upon by Mr Broatch in the context of the approach to suitability and affordability, to which I will need to turn.[64]I do not agree that the passages in Best at paragraphs 22 and 25 are obiter. In my judgment, what the deputy judge was doing, as a necessary path in her analytical approach, was examining whether the authority had the power to impose a nil charge. She was going on then, having decided that there was the power, to address whether it was unreasonable not to exercise that power in the circumstances of that case. It is not the only way that one could analyse that question - one could adopt a premise and assume the existence of a power and still find it not to have been unreasonably declined - but that, in my judgment, is not what the deputy judge did, nor would it be a sufficient reason for me to put to one side as obiter the deputy judge's observations.[65]I would in any event, in all the circumstances, have placed considerable weight on the judge's interpretation of that discretionary power. I am comforted that the deputy judge in that case reached the clear conclusion that she did, with the assistance that she had. Moreover, I note that that analysis, which is clear on the face of that decision of this court, dates back to March 2009.[66]But in any event, and even putting that authority to one side, I am satisfied for the reasons that I have given that the defendant authority does have a discretionary power in appropriate circumstances and therefore is not obliged, on the face of the statute, to require that rent be paid by the individual.[67]It follows from this that there is in principle a relevant option open to the local authority, namely to deal with a problem of impecuniosity, where appropriate, by the exercise of that discretion. It also follows from this that in circumstances such as arise under the Zambrano predicament it would not be the 1989 Act, or for that matter the 1948 Act, which would in law be the sole route by which accommodation or the means to pay for accommodation would come to be supplied.[68]In my judgment, turning to the broader question of the application of the 1996 Act and the questions of suitability, affordability and achievability, there are at least three options available to the local housing authority, in principle, in a case such as the present. I will put to one side the 1948 Act, which it was not necessary for me to analyse or hear any detailed submissions upon.[69]The first option is the discretion which I have described, as to a nil or nominal rent or charge for the purposes of section 206(2). The second is that the housing assistance secured for the purposes of the 1996 Act could continue to be housing provided by the local housing authority, but with the relevant rental met by assistance in cash made available by social services in the context of a 1989 Act section 17 assessment. In those circumstances, were that the approach taken, the rent would continue to be charged, the means would be made available for the protection of the children, and the local authority would in that sense be able to balance its books. That could have clear implications for questions as to eviction. The third option is that the 1989 Act duty, being a duty not to house but to secure that accommodation is available, could be discharged through securing and being satisfied that provision is being made available through accommodation under section 17(6) of the 1989 Act. That, in my judgment, and Mr Berry accepts this, is capable of constituting in principle the accommodation which would satisfy the housing authority that it had secured appropriate accommodation being available.[70]In my judgment, Mr Broatch is wrong to analyse, as he does, the statutory scheme in the case of an impecunious individual as fatally undermining affordability and therefore suitability, and therefore rendering as unachievable the 1996 Act duties. In my judgment, those duties continue and the position where the 1989 Act is relied on as relevant for the purposes of accommodation being secured does not entail that the 1989 Act becomes the exclusive focus of the legal relationship between a public authority and an individual. The correct analysis, in my judgment, is that both statutory schemes are relevant, the provision of one duty being capable, in principle, of being assisted or met by reference to the other. But, in my judgment, the parameters of the 1996 Act in those circumstances would continue to apply.[71]I start in that regard with the question of cessation, for this issue will arise, as it does in this case, in circumstances where the housing authority has satisfied itself under section 193(1) that the requirements giving rise to the duties to secure available accommodation are requirements which are met.[72]In Best, from which I have already read certain passages,

the judge said at paragraph 23 that the duty to provide suitable accommodation:

"... is an ongoing duty that can only be brought to an end by the fulfilment of one of the statutory grounds set out in Section 193."
I have reached the same conclusion. In my judgment, section 193, in particular subsection (3), is clearly setting out an exclusive code as to the circumstances, requirements and procedures which arise so that one can say that an acknowledged statutory duty has ended.[73]Section 193(3) reads as follows:
"The authority are subject to the duty under this section until it ceases by virtue of any of the following provisions of this section."
That in itself, in my judgment, makes it difficult to analyse the position where no such cessation situation has arisen, but where effectively the statutory duty can be put to one side as legally irrelevant. That difficulty arises, however one characterises that legal irrelevance: unenforceability, unachievability or some other formula.[74]I accept Mr Berry's submission that even Mr Broatch's ‘grandmother's house’ example is one that would need to be analysed by reference to the statutory scheme. Mr Berry’s response in relation to that example ultimately rested on section 206(1)(c) where the duty owed by an authority can permissibly be discharged merely by providing advice and assistance in circumstances where there is suitable accommodation elsewhere available.[75]Whether or not the statutory scheme is exclusive as to the way in which the duty comes to an end, I am still not able to accept Mr Broatch's analysis of the prescribed approach to suitability and affordability under article 2 of the 1996 Order. In the first place, in my judgment, the article 2(b)(i) factor, rent, will itself involve a question of the authority's discretion as to what if any rent level it considers it appropriate to charge. Even leaving that to one side, in my judgment the resources side of the equation would entitle the local housing authority to consider all possible routes by which rent could come to be discharged. Mr Berry points out that article 2(a)(vii) includes "financial assistance towards the costs in respect of the accommodation, including loans, provided by a local authority, voluntary organisation or other body". That indicates that if other financial assistance were to be available, whether from the local authority or any other body, that is something that ought to be taken into account when addressing affordability.[76]In my judgment, when the local authority is asking itself the statutorily required question of suitability, whatever the nature of the accommodation in question and from whatever source it is to be provided, it is entitled to examine the various options that will be open to ensure either that no charge is being made or that any charge being made is one that can be met from some resources. The key, in my judgment, to this is that it is a balancing exercise by the local authority, evaluating various aspects of the financial circumstances to inform an overall conclusion as to suitability. There is, in my judgment, here no rigid sequence of steps that must be taken rather than an ability to look at the question in the round. That conclusion is reinforced by the fact that these are relevant considerations, albeit relevancies which article 2 requires that the local authority shall have regard to. They are not formulated as a rigid straitjacket.[77]In my judgment, as the current case well illustrates, a housing authority with an ongoing statutory duty is perfectly able to evaluate, whether by reference to the prescribed approach to suitability which applies to its functions under the 1996 Act, accommodation will be suitable, and to the extent relevant affordable, even though the accommodation or means to pay for it have arisen through the provisions of the 1989 Act. There is no ‘disconnect’, in my judgment, between(a) the proper ability, as this defendant authority has commendably recognised, to rely on the 1989 Act as a proper solution, and(b) the ongoing applicability of the remaining statutory duties under the 1996 Act. Both regimes can be in play. Therefore, the enhanced protections, which were the subject of my earlier general observations, are entitlements of an individual which fall to be secured.[78]It may very well be, once the relevant parameters have been considered including as to the financial position and locational features, that by reference to the out-of-area provisions of the 1996 Act and the relevant subordinate legislation and statutory guidance, a local authority in an individual case would arrive at the same conclusion as it would have done in any event. But what matters, in my judgment, is that the correct legal approach is taken and that, although relying on the 1989 Act, the local housing authority does not disavow or lose sight of the ongoing legal relevance of the duties imposed on it by Parliament under the 1996 Act in a case in which the duty has been recognised and has not come to an end. The remedy question[79]For the claimant, Mr Berry seeks declaratory relief as to the correct interpretation of section 206 and as to the ongoing applicability of the 1996 Act. Mr Broatch submitted that, were I to arrive at the position that on either or both of the key points of law in this case I preferred the claimant's arguments to those of the defendant authority, I should nevertheless refuse relief as a matter of discretion or alternatively suspend the effect of my judgment.[80]So far as refusing relief is concerned, Mr Broatch's submission is that although he acknowledges distinctions between the two statutory schemes, including the way suitability is framed and the right of review, the claimant, he submits, in substance has achieved all she really wanted: she has in Rochdale accommodation, it is self-contained, it is reasonably secure, and she is not left financially in the precarious position as to doubt and uncertainty as to whether she may be facing a further eviction on grounds of rent arrears.[81]I do not accept that those would be reasons which would justify the refusal of relief. Indeed, even were the court's ruling to stand alone without any declaratory relief, the judgment of the court would itself identify the legal duties which I have concluded arise in cases such as the present.[82]It is a matter for the claimant and her advisors to address how she wishes to take advantage of any protections afforded to her under the statutory scheme. So, taking, for example, the legal entitlement to a statutory review having received a notification as to suitability (I pause to observe that that would itself need to be premised on having addressed the question of suitability through the correct legal framework) it would be a matter for her whether she would wish to seek a review of such a decision if adverse. On the claimant’s behalf, it is submitted that the court cannot safely conclude that she has achieved what she wanted. She has recently been moved a very long distance, far away from London, in circumstances where it is said that the very features that should affect the question of location - disruption of education of the children and the presumption as to staying within the defendant's district - are all very much in play, and that viewed in that respect suitability is most certainly not accepted.[83]As to suspending the effect of the judgment or granting a stay, Mr Broatch returned in his submissions to the position of the Secretary of State and the ongoing appeal currently due to be heard on 12 August 2014. His concern was that, if the defendant authority were being ordered by the court or required through the logic of the judgment to take some steps, such as a statutory notice, then, if adverse, an internal review with a 56-day timeframe and possibly then an appeal, that would all be inappropriate and regrettable in circumstances where it is known that the underlying factual premise has been rejected by the Secretary of State and may come to be rejected on appeal and in turn rejected in the authority's own assessment. The submission is that the court should suspend its judgment in this case, it being regrettable if the defendant had to act in such ways, expend resources with the potential for another upheaval for this family, relocation back to London, were that the outcome of any statutorily required steps. He submitted that what should continue is a status quo, at least until the appeal has been decided.[84]I am unable to accept that submission. In my judgment, it would not be right or in the interests of justice for this court, having identified the legal position as it currently applies to this claimant and this public authority, then to suspend the effect of the judgment. There are, in my judgment, difficulties in principle with the idea of a court suspending its legal ruling, but I am prepared to accept for the purposes of this case that the court has the jurisdiction to both grant and then stay a declaration as to the legal position. I am not asked in this case to make any mandatory order requiring any particular step. I am not prepared to suspend or stay declarations in circumstances where, in my judgment, the rights under the 1996 Act are real and concrete and different from those parameters which apply were the 1989 Act alone in play, in circumstances where, although there has been a relocation, it is a very recent one. So, for example, two of the three children who are of school age have not yet been found places in Rochdale's schools; where the claimant's wishes would be to be considered under the 1996 Act criteria and procedures and to be returned to the London location, rather than left in Rochdale. Even if the authority's conclusion were to be adverse to her, the statutory rights of internal review following receipt of a statutory notification are also, in my judgment, real and significant legal rights which I would be suspending, notwithstanding that, so far as the defendant is concerned, this claimant remains an individual whom it had assessed as being a Zambrano carer.[85]In that respect, alongside the Secretary of State's adverse decision letter there is now the Children Act 1989 assessment conducted in the present case by Children's Services. The position that has been adopted is set out in that assessment. I read only this short passage:
"[The claimant] is therefore a 'Zambrano carer' who has three children living in her care. There is no evidence to suggest that the family is in contact with any of the fathers of the three children and this is confirmed by [the claimant]."
In all the circumstances it would not, in my judgment, be in the interests of justice or an appropriate exercise of any discretion or judgment of the court to suspend the legal effect of my ruling and therefore deny through the period up to the pursuit of the appeal the legal entitlements which the claimant on the face of it, and in accordance with the analysis which I have set out, enjoys.[86]For all those reasons, this claim for judicial review succeeds.[87]I heard submissions in relation to declaratory relief, but will not formulate finally any declarations before hearing further submissions. I have in draft ‘candidate’ declarations and I shall conclude this judgment by reading the declarations which I am minded to make. The draft declarations, subject to further argument, would be as follows: It is declared that:(1) Section 206(2)(a) of the Housing Act 1996 does not preclude the local housing authority from deciding, in the exercise of its discretion and judgment, not to require the payment of a charge or only to require the payment of a nominal charge by the person in relation to whom they are discharging their Part VII housing functions.(2) A local housing authority may perform a duty arising under section 193(2) of the 1996 Act, inter alia by securing accommodation provided in the exercise of an authority's power under section 17(6) of the Children Act 1989, but in doing so must comply and continue to comply with the duties and requirements in and under Part VII of the 1996 Act. I will now hear submissions in relation to those declarations and any consequential matters. MR BERRY: My Lord, I am grateful for the judgment. As regards your Lordship's judgment, there was just one point about when the claim was issued. My Lord said in course of judgment I think it was issued on 5 November, but in fact it was issued on 11 July 2013. THE DEPUTY JUDGE: That was the date of permission, was it? MR BROATCH: Yes. THE DEPUTY JUDGE: Correction then to the judgment. Does that mean the sequence was also wrong? MR BROATCH: Your Lordship can simply say, "The claim was issued on ... and permission was granted on..." THE DEPUTY JUDGE: Yes. What was the date of the claim being lodged? MR BERRY: The claim was lodged 11 July. THE DEPUTY JUDGE: Right. So the sequence is okay. The correction then is that when I said, dealing at the very start of my judgment a long, long time ago now, that on 5 November 2013 -- perhaps I just misread my notes. I said, did I, the claim was lodged? MR BERRY: Yes, my Lord. THE DEPUTY JUDGE: Right. What I should have said is on 11 July 2013 the claim for judicial review was lodged. Thank you. Any other corrections? MR BERRY: None that I know. THE DEPUTY JUDGE: Mr Broatch, any other? MR BROATCH: No. THE DEPUTY JUDGE: Thank you very much. So that deals with that. MR BERRY: Yes, my Lord. In terms of the declarations as drafted, I think my Lord corrected it in process. THE DEPUTY JUDGE: I did. MR BERRY: The "apply" to "comply", but we are content with the format. THE DEPUTY JUDGE: I did not include your second declaration. I do not know if you want to go back to it. I did not think it was necessary or appropriate, and I slightly changed the others. MR BERRY: Yes, we noticed the formulation. THE DEPUTY JUDGE: If you want to try and argue, now is your moment. MR BERRY: No, of course. THE DEPUTY JUDGE: I did not want you to lose sight of the fact that you were asking for three and I have not included three. MR BERRY: I appreciate that. THE DEPUTY JUDGE: My view at the moment is that these simply reflect my judgment, and I am obviously very conscious it is not appropriate for me to go any further. MR BERRY: My Lord, the substance of the second one to some extent is embraced in the ruling, the content of the judgment itself, and in those circumstances we do not press for something more. THE DEPUTY JUDGE: Quite. As you appreciate, I am not dictating to this local authority what it does next. MR BERRY: No, my Lord. We are content with the two declarations. THE DEPUTY JUDGE: So you are content with the wording of the declarations? MR BERRY: Yes, my Lord. THE DEPUTY JUDGE: Thank you. MR BERRY: We do ask for our full costs. We submit we have been successful on every point which we took. We ask for costs in the usual way, and for the element of costs that cannot be recovered on an inter partes basis, detailed assessment for public funding purposes. THE DEPUTY JUDGE: I will hear Mr Broatch on that. Mr Broatch? MR BROATCH: We do not need to argue about my friend's second declaration, as your Lordship is with me on that. I would have submitted it was otiose. I have a suggestion to make with (2): that after "the Children Act 1989" there follows, ex abundanti cautela, a phrase "or paying for such accommodation,". THE DEPUTY JUDGE: Who is doing the paying in that formulation? MR BROATCH: The authority. THE DEPUTY JUDGE: Which: social services or housing authority? MR BROATCH: Well, the authority is one single and individual corporate person in English law, and I do not like to get involved in intradepartmental dispute, but it is the authority. THE DEPUTY JUDGE: I am trying to understand what scenario this phrase is dealing with. Paying for accommodation provided in the exercise of an authority's power under section 17(6). Is that your point? MR BROATCH: Yes. So we could have a situation - I am now going to do the very thing that I said I did not want to do - but supposing, let us go out of this case, and someone else governed by these declarations: the housing department provides the Zambrano carer with accommodation, but in deciding that it is suitable it reasonably apprehends that its social services department will pay the whole or a significant part of the rent out of that budget. It would not, therefore, matter which Act the accommodation was provided under; it would be the payment for that accommodation which would be provided under the 1989 Act. THE DEPUTY JUDGE: I was rather thinking that it was the other way around: that if you want this declaration to be more explicit, what it would say is you can perform the duty under 193(2) by securing the accommodation provided in the exercise of 17(6) powers or by securing that money is provided in the exercise of 17(6) powers. That gets into my three scenarios, whereas I think your formulation suggests to me that it is the other way around - I know you do not like to distinguish - but if you are paying for accommodation provided in the exercise of the authority's power, what is in the authority's power? Is it the payment or the accommodation? MR BROATCH: The payment. Let us suppose that we have to get accommodation in the private market. The better place for the department to do that would be the housing department, but the one that should pay for it should be the social services department. THE DEPUTY JUDGE: Then I think we are on the same page. Is it not this then:
"inter alia by securing accommodation (or payment in relation to accommodation) provided in the exercise of the authority's power..."
MR BROATCH: My Lord, I am happy with your Lordship's (Inaudible). THE DEPUTY JUDGE: I see what you are getting at, which is that if you look at 17(6), it might be that the Children Act provision is accommodation or it might be that it is money. That is what you are getting at. MR BROATCH: Yes. THE DEPUTY JUDGE: Well, I have dealt with that in my judgment. I was dealing with accommodation because that is this case, but "by securing accommodation (or payment)" - it probably just needs to say "(or payment)". It does not need to be any more elaborate than that, does it? That what you might be doing under the Children Act is either accommodation or payment. MR BROATCH: I am happy with that, and I think that will make it clearer. THE DEPUTY JUDGE: It is certainly consistent with my judgment. MR BROATCH: The officers of the authority will now have to consider (a) your Lordship's judgment and (b) these declarations. THE DEPUTY JUDGE: Yes. Any difficulty with that, Mr Berry? MR BERRY: My Lord, we are content with that. 17(6) obviously includes payment in cash, and it is consistent with the second limb of the way in which your Lordship said the duty can be performed. THE DEPUTY JUDGE: So it will be "(or payment)" after the word "accommodation" in the second line. MR BROATCH: As to the question of costs, the authority has been unsuccessful in substantial measure, although I did detect in your Lordship's judgment a certain -- I will not say sympathy -- but a certain appreciation of what I describe as "the predicament". This is a very unusual case, an unusual circumstance, a trailblazer in a way. The authority was doing its best to provide its statutory duty, and, as your Lordship said, has accommodated the claimant throughout. Perhaps this is one of those cases where, it being a pathfinder, perhaps necessary litigation to clarify certain matters, it is an unusual situation where the losing party should not pay the costs. Both parties are publicly funded. I appreciate the legal aid fund is under pressure, I appreciate that this is a law centre appearing for the applicant and law centres need to recover inter partes costs. THE DEPUTY JUDGE: I am not allowed to take into account the legal aid status of the claimant, am I? Is there not a statutory provision that says in exercising discretion as to costs, you have got to treat them as if they were? MR BROATCH: It is custom and practice to ignore that statutory provision and use legally aided claimants as a way of funding community legal services, and it seems to have some sort of sanction from the Supreme Court. But my authority also is extremely pressed for resources, including resources of housing. I invite your Lordship to say this is one of those cases where there is simply no order for costs. Obviously I need not say anything about the legal aid assessment. One other application that I need to make: I am not able to say whether the authority is going to appeal your Lordship's judgment or not. I would like now to ask your Lordship to give me permission to appeal. These are possibly quite far-reaching points, covering Zambrano carers or pre-November 2012 Zambrano carers. Your Lordship has given a very long and illuminating judgment, and before making any final decision the authority ought to have it and consider it, but whilst we are all here -- THE DEPUTY JUDGE: Yes, much better than dealing with this in writing. MR BROATCH: I say it is a case of considerable public importance. Two difficult questions of statutory construction and the interrelation of two statutory powers. Those are sufficient, I would submit, to satisfy the criteria of permission to appeal. But that is not all that I ask for: I would ask your Lordship to extend the time for appealing or, if your Lordship does not give me permission to appeal, my time for applying for permission to appeal to the Court of Appeal, until 21 days after the receipt of the transcript of your Lordship's judgment. I will also ask, I know your Lordship said something about a stay, and I think we have had a number of candidates to stay, but a new one: pending an appeal or an application to the Court of Appeal for permission to appeal -- I have discussed this very briefly overnight -- the authority would be reluctant to make a discharge decision on the immigration point without making some enquiries. Therefore, it would not necessarily simply adopt what the Secretary of State has said, although it might contact the Secretary of State and ask her what enquiries she had made to reach that conclusion, although we might get a nil answer. But if there is no stay, there must come a point at which the authority has to offer accommodation, and that means giving notice and that means triggering a right to review. If unstayed by agreement, that means making a review decision within 56 days, and again, if that decision is adverse to the applicant, one might anticipate a section 204 appeal 21 days thereafter, and, again, a possible application to stay in the County Court. So rather than having those consequences prematurely, they could be cured or rendered unnecessary by your Lordship granting me a stay. But I do not want to create any false impression. Your Lordship's judgment is a long one, illuminating, as I say. It needs to be considered, not just by me and my instructing solicitor behind me but perhaps by the Director of Housing and the (Inaudible) as to the consequences and possibly sent to other London local authorities. It may even be, I will not say the Mayor of London, but someone in the Mayor of London's office who knows about housing and might have some comment. So I am not threatening your Lordship, I hope not impertinently, with an appeal, or my learned friend, but I am saying that it is a judgment the implications of which call for consideration as to their possible (Inaudible). THE DEPUTY JUDGE: Thank you. I am going to make the following

Order

the Homelessness (Suitability of Accommodation) Order 1996 SI 1996/3204. That Order, in particular at article 2, prescribes an approach to the question of suitability which arises necessarily under section 206(1) and the other provisions of the 1996 Act. In article 2 of the Order, the Secretary of State has prescribed as mandatory relevancies various criteria, starting with the question of affordability and by reference then to various financial features, including the costs side of what could be described as a balance sheet and the resources side. Article 2 provides as follows: "2. In determining whether it would be, or would have been, reasonable for a person to continue to occupy accommodation and in determining whether accommodation is suitable for a person there shall be taken into account whether or not the accommodation is affordable for that person and, in particular, the following matters—(a) the financial resources available to that person ...(b) the costs in respect of the accommodation, including, but not limited to— (i) payments of, or by way of, rent..." order: (1). That the claim for judicial review is granted. (2). It is declared that: (i) Section 206(2)(a) of the Housing Act 1996 does not preclude the local housing authority from deciding, in the exercise of its discretion and judgment, not to require the payment of a charge or only to require the payment of a nominal charge by the person in relation to whom they are discharging their Part VII housing functions. (ii) A local housing authority may perform a duty arising under section 193(2) of the 1996 Act, inter alia by securing accommodation (or payment) provided in the exercise of an authority's power under section 17(6) of the Children Act 1989, but in doing so must comply and continue to comply with the duties and requirements in and under Part VII of the 1996 Act. I am going to ask counsel for the claimant, please, to share with his opponent and then provide to the court by email the terms of the order, not least because, for reasons that I will come on to explain, it will need to deal with the legal aid costs position. So that is the declaration, and everyone has that in writing with that amendment. As to costs, in my judgment, the claimant is entitled to her costs. Her claim has succeeded in relation to its substance on both of the points that were argued. I understand the realities, of course, on both sides, but the parties have gone into this hearing with their eyes open in relation to questions of law and I cannot see an appropriate basis for departing from that costs order in the circumstances. As to permission to appeal, it is quite right that that application should be made now, even though it is only permission and the Council wishes, perfectly properly, to consider its position. However, I am going to refuse permission to appeal. In my judgment, the two legal points are ultimately ones which are clear-cut. Of course, it is always possible that an appeal will succeed, but I have to ask whether there is a realistic prospect of success in my view, or otherwise whether the importance of the issues is itself sufficient. I am not satisfied on either of those grounds. The Court of Appeal will need to consider, if it is asked to do so, whether it considers that there are points here that require permission to appeal. Although my judgment is lengthy, it seems to me it may very well be that the Court of Appeal will be able, in considering the question of permission, to decide whether it reaches the same clear view on the key questions. I certainly will extend the defendant's time for applying to the Court of Appeal for permission to appeal until 21 days after receipt of the transcript of my judgment. It would be entirely wrong for the authority to be bounced into a position having had a read out and not a hand down where it had to formulate its argument, including a skeleton argument. That, in my judgment, is entirely right. I am not prepared to grant a stay in relation to the period either while enquiries are being made or while the immigration-related appeal, the permit appeal, is being pursued or while the application to the Court of Appeal, if it is pursued, is made for permission to appeal. I am not going to repeat the points I made earlier in relation to stays. Many of the points interrelate. The position is that, if an authority was faced with an adverse Zambrano decision by the Secretary of State, it would, of course, be fully entitled to consider that and decide what to do. If it wishes to make enquiries that are relevant and reasonable in that regard, no doubt it would be doing so. But none of that would involve a legal suspension of the correct position in law, and I am not prepared, in effect, to direct that there should be a special suspension in the context of this case. None of the other reasons, in my judgment, are sufficient to justify a stay pending pursuit to the Court of Appeal. That, I think, deals with everything apart from the intricacies of the costs order to take account of the legal aid position, but I do not think that gives rise to any difficulty and that is something no doubt that can be included in the order that is going to be emailed. I ask counsel before they leave just to talk, please, to the usher and make sure they have the correct email details so that that order can be supplied. If there is any difficulty between the parties, and if there were any difficulty between the parties as to the precise terms, then they are to make contact with me through my chambers since I will not be in this building and I will deal with any such problem. I do not anticipate we will be in that position, but it is appropriate that I say that in case that were to arise. MR BROATCH: My Lord, only by way of minor clarification: your Lordship said you refused the stay pending appeal. I take it that that encompassed waiting for the transcript before deciding. THE DEPUTY JUDGE: Yes, I do. I refuse the stay whether it is pending the transcript or pending the application to the Court of Appeal for permission to appeal. If there were to be a stay, that would be a matter for that court. Any other loose end that anyone thinks I need to deal with? MR BERRY: No, my Lord. THE DEPUTY JUDGE: If you just wait a moment, I have to fill out a form. (Pause). All I have done in the form is I have just filled out that I refused the application for permission to appeal, still called "leave to appeal" on this form. I have just said it was under both limbs, so no realistic prospect of success but insufficient importance to justify permission to appeal in the light of no realistic prospect of success, and in all the circumstances. So it just deals with both of those limbs. Anything else? MR BERRY: No, thank you. THE DEPUTY JUDGE: There was lots of duplicate material. I just took one set in the end. There were various files. It might be sensible to hand them back rather than the court have them. You will hate this, but the bundle of authorities was here. It was in the building, I just did not have it in court. So that is unmarked and you can have that back. The court does not need to keep that. Can I thank everyone on both sides for the great assistance I had in the work that you all did in the preparation and presentation of the argument. Thank you very much.