Ozbek v Ispwich Borough Council

This is an appeal from an order made on 5 October 2005 by Her Honour Judge Ludlow in the Ipswich County Court on an appeal under section 204 of the Housing Act 1996 from a decision made by Ipswich Borough Council on a review under section 202 of that Act. It raises issues of some general importance as to the circumstances in which, following the introduction of section 199(6) of that Act in January 2005, one local housing authority may refer an application under Part VII of that Act to another authority.

Part VII of the 1996 Act sets out the functions and duties of local housing authorities in relation to applicants whom they have reason to believe are homeless or threatened with homelessness. Those duties include a duty – under section 193(2) of the Act – to secure that accommodation is available for occupation by an applicant where the authority are satisfied that the applicant is homeless, eligible for assistance and has a priority need, and are not satisfied that he became homeless intentionally. But that duty - often described as the ‘full’ or ‘main’ housing duty – is subject to s.198 of the Act. Section 193(2) so provides:

“193(2) Unless the authority refer the application to another local housing authority (see section 198), they shall secure that accommodation is available for occupation by the applicant.”

Subsections (1) and (2) of section 198 of the 1996 Act are in these terms (so far as material):

“198(1) If the local housing authority would be subject to the duty under section 193 (accommodation for those with priority need who are not homeless intentionally) but consider that the conditions are met for referral of the case to another local housing authority, they may notify that other authority of their opinion.

(2)

The conditions for referral of the case to another authority are met if -

(a)

neither the applicant nor any person who might reasonably be expected to reside with him has any local connection with the district of the authority to whom his application is made, [and]

(b)

the applicant or a person who might reasonably be expected to reside with him has a local connection with the district of that other authority, and

(c)

. . . ”

Subsections (5) and (6) of that section provide:

“198(5) The question whether the conditions for referral of a case are satisfied shall be decided by agreement between the notifying authority and the notified authority or, in default of agreement, in accordance with such arrangements as the Secretary of State may direct by order.

(6)

An order may direct that the arrangements shall be –

(a)

those agreed by the relevant authorities or associations of relevant authorities, or

(b)

in default of such agreement, such arrangements as appear to the Secretary of State to be suitable, after consultation with such associations representing relevant authorities, and such other persons, as he thinks appropriate.”

Section 199 of the 1996 Act explains what is meant by having “a local connection with the district of a [local housing authority]” for the purposes of section 198(2). I need refer only to subsections (1), (6) and (7)(a):

“199(1) A person has a local connection with the district of a local housing authority if he has a connection with it –

(a)

because he is, or in the past was, normally resident there, and that residence is or was of his own choice,

(b)

because he is employed there,

(c)

because of family associations, or

(d)

because of special circumstances.

. . .

(6)

A person has a local connection with the district of a local housing authority if he was (at any time) provided with accommodation in that district under section 95 of the Immigration and Asylum Act 1999 (support for asylum seekers).

(7)

But subsection (6) does not apply –

(a)

To the provision of accommodation for a person in a district of a local housing authority if he was subsequently provided with accommodation in the district of another local housing authority under section 95 of that Act, or

(b). . .”

Sub-sections (6) and (7) of section 199 of the 1996 Act were introduced by the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 with effect from 4 January 2005.

Section 200 of the 1996 Act requires, at subsection (2), that:

“200(2) When it has been decided whether the conditions for referral are met, the notifying authority shall notify the applicant of the decision and inform him of the reasons for it.

The notice shall also inform the applicant of his right to request a review of the decision and of the time within which such request must be made.”

Subsections (3) and (4) of that sections provide that:

“200(3) If it is decided that the conditions for referral are not met, the notifying authority are subject to the duty under section 193 (the main housing duty).

(4)

If it is decided that those conditions are met, the notified authority are subject to the duty under section 193 (the main housing duty).”

It is clear – when section 200 is read in conjunction with section 198(5) of the Act – that the point of time at which “it has been decided [whether/that] the conditions for referral are met” is when the notifying and the notified authority have agreed that “the conditions for referral of a case are satisfied” or (in the absence of agreement) when that question has been determined under arrangements prescribed by the Secretary of State.

In determining whether, for the purposes of section 198 of the 1996 Act, a person has a local connection with the district of local housing authority because of family associations, authorities have regard to guidance (“the Referral Guidelines”) agreed between the relevant local authority associations. The Referral Guidelines are set out at Annex 11 to the Code of Guidance issued by the Secretary of State under section 182 of the 1996 Act. Paragraph 1.4 explains their status:

“1.4

In Re Betts (1983) the House of Lords considered the application of the referral arrangements agreed between the local authority associations. It decided that a rigid application of the arrangements would constitute a fetter on an authority’s discretion. However, the agreement could certainly be taken into account provided its application to each case is given individual consideration.”

Paragraph 4.1 of the Referral Guidelines is in these terms so far as material.

“4.1

. . . A local connection may arise if any of the following conditions are met, . . .

. . .

(iii)

the applicant or a member of the household has family associations in the area. Family associations normally arise when an applicant or member of the household has parents, adult children or brothers or sisters who have been resident in the area for a period of at least 5 years at the date of application and the applicant indicates a wish to be near them. Only in exceptional circumstances would the residence of relatives other than those listed above be taken to establish a local connection.. . .

(iv)

there are special circumstances which the authority considers give rise to a local connection in the area. This may be particularly relevant in dealing with people who have been in prison or in hospital and who do not conform to the criteria in (i) – (iii) above. . . . An authority must exercise its discretion when considering whether special considerations appertain.”

The applicant in the present case is a Turkish national of Kurdish ethnicity. He entered the United Kingdom in 2003 as an asylum seeker. In March 2004 he was granted indefinite leave to remain. The effect was that he was then eligible for assistance under Part VII of the 1996 Act, because section 185 of the Act no longer applied to him. In January 2005 his wife was also granted indefinite leave to remain.

At first, accommodation in Southampton was provided for the applicant and his family by the National Asylum Support Service (“NASS”). But, on 18 February 2005, they were moved to NASS accommodation in Portsmouth. On 7 April 2005, Portsmouth City Council, in pursuance of its duty under section 193(2) of the 1996 Act, offered the applicant long term accommodation in a 3 bed-roomed maisonette. The applicant rejected that offer. On 28 April 2005 Portsmouth City Council offered other accommodation; but the applicant rejected that also. On 3 May 2005 Portsmouth City Council informed the applicant that they considered that they had discharged their duty under Part VII of the Act and that no further offers of accommodation would be made.

On 9 May 2005 the applicant and his family left the NASS accommodation in Portsmouth. On the same day he applied to Ipswich Borough Council (“the authority”) for accommodation and assistance under Part VII of the Act. He sought accommodation for himself, his wife and two children.

On 13 June 2005 the authority notified the applicant by letter that they were satisfied that he was homeless or threatened with homelessness, that he had a priority need and that he did not become homeless intentionally. But the letter went on:

“The Council have notified Southampton City Council that you have applied for accommodation. (Sec 198).

The reason for taking this action is that you do not have a ‘local connection’ with Ipswich Borough Council but do have a ‘local connection’ with Southampton City Council for the following reasons: you have lived in Southampton for 6 out of the past 12 months.”

It was correct to say that the applicant had lived in Southampton for six out of the past twelve months: but the authority had failed to take account of the applicant’s more recent residence in Portsmouth – section 199(7)(a) of the Act.

On 14 June 2005 the applicant sought a review of the decision that he had no local connection with Ipswich and that he did have a local connection with Southampton. The letter seeking review, prepared by Ipswich Community Resource Centre, contained the following information:

“The Ozbek family did not go to Southampton of their own choice; the Government held them there for that six-month period while their claim for asylum in the United Kingdom was investigated and decided. They were granted ‘indefinite leave to remain’ and came to Ipswich where they have ‘local connections’ along with a plentiful – and welcoming – supply of support.

Mr Ozbek’s two brothers have been settled in Ipswich now for over a year, while his extended family of cousins and their families made their home in this town over ten years ago. The network includes men who will be able to assist Mr Ozbek find work and provide him with insight and advice into the workings of not only the workplace but also of British society.

For Mrs Ozbek there is an entire support system up and running and ready to help her settle into an Ipswich life. There is a total of ten families, all long term residents of this town and related to Mrs Ozbek by marriage, who will be of enormous help to her with the children, providing the advice and comfort that she would have received from her close-knit family in her own country had it been safe for her to remain.

Life in Ipswich would be among family and friends, while to return this family to Southampton would be to send them to a place that was not of their choosing originally, where they have no wish to be, where they have no family, no accommodation and really no connection.”

Strictly, I think, the request was premature. The obligation to review did not arise until the notifying authority and the notified authority had agreed that the conditions for referral were met. But nothing turns on that.

The request for review was supported by the Member of Parliament for Ipswich. He wrote, in a letter dated 17 June 2005:

“I understand that to have a local connection with Ipswich someone must have certain family associations with Ipswich. Mr Ozbek has extensive family connections in Ipswich - details of which are listed on the enclosure.”

The enclosure set out details of one brother of the applicant (who had lived in Ipswich and his family since August 2004), of another brother (who had lived there since January 2004), of three cousins (who had lived there for five, ten and thirteen years, respectively), of a “Father’s cousin” and of a member of “Wife’s family” (who had lived there for eight and five years respectively).

On the 24 June 2005 Ipswich Borough Council wrote to the applicant in terms identical to those in the letter of the 13 June 2005; save that the second letter informed him that the authority had notified Portsmouth City Council (rather than Southampton City Council) that he had applied for accommodation. On the same day the authority referred the application to Portsmouth City Council – expressing the view that “the conditions are met for referral . . . under the [1996] Act.”. On 4 July 2005 Portsmouth wrote that they would not be accepting that referral. The reason given was that they had already discharged their duty under the Act. But there was a change of mind. On 11 July 2005 Portsmouth wrote in these terms:

“Further to your recent referral of the above named applicants [Mr and Mrs Ozbek] to Portsmouth City Council under section 198 of the Housing Act 1996, I write to inform you that Portsmouth City Council will be accepting the referral.

However, I must inform you that Portsmouth City Council will not be providing the above applicants with re-housing as a homeless duty was discharged by Portsmouth City Council on the 03/05/05. The applicants have not had a change in circumstance to consider since this decision was made.

Portsmouth City Council will be writing to the applicants to inform them of this decision and therefore Ipswich Borough Council will have no further duty to provide temporary accommodation due to the above acceptance of referral.”

Whatever may have prompted that change of mind, the effect (subject to challenge) was that, from 11 July 2005, Portsmouth City Council (as the notified authority) were subject to the ‘full’ or ‘main’ housing duty imposed by section 193(2) of the Act and Ipswich Borough Council (as the notifying authority) were not subject to that duty – section 200(3) and (4). I express no view on the question whether Portsmouth had discharged their duty under Part VII of the Act. That question, as it seems to me, is not relevant to the present appeal.

On the 19 July 2005, Ipswich Borough Council wrote to the applicant in the following terms:

“The Council have notified Portsmouth City Council that you have applied for accommodation. (Sec 198).

The reason for taking this action is that you do not have a “local connection” with Ipswich Borough Council but do have a “local connection” with Portsmouth City Council for the following reasons.

You have not lived in Ipswich for six out of the past twelve months or for three out of the past five years.

You do not have a permanent job in Ipswich.

You do not have close family members that have lived in Ipswich for more than five years. A close family is generally limited to parents, adult children and siblings. You do have two brothers who live in Ipswich but they have not lived here for five years. You do have cousins that have lived in Ipswich for more than five years but we would not consider cousins to constitute a family connection.

You do not have any other special circumstances for us to consider that would constitute a local connection with Ipswich.

You have a local connection with Portsmouth as you were provided with accommodation in Portsmouth under section 95 of the Immigration and Asylum Act 1999. You were resident at 30 St Augustine Road, Portsmouth from 18^th February 2005 until 9^th May 2005.”

That letter did not (as, strictly, it should have done) inform the applicant that “it had been decided [by agreement with Portsmouth] that the conditions for referral had been met”; but that caused the applicant no prejudice because Portsmouth had, itself, informed him by letter dated 11 July 2005 that they had accepted the referral. The letter of 19 July 2005 did inform the applicant of his right to request a review.

On the 22 July 2005, Shelter’s National Homelessness Advice Service - who, by then, were assisting the applicant - sought a review of Ipswich Borough Council’s decision to refer the applicant to Portsmouth. The duty to review was imposed by section 202 of the 1996 Act - section 202(1)(d). In a letter of that date Shelter wrote:

“In the light of the information provided by Mr Ozbek and his advocates and having carefully looked at the Council’s file we would submit that the Council’s decision to refer Mr Ozbek to Portsmouth City Council is reviewable on the following grounds:

•

The extent of Mr Ozbek’s family associations with Ipswich, as outlined in detail below, are sufficient to establish a local connection with Ipswich Borough Council under section 199(1)(c) of the Act

•

The Council’s decision letter, and its correspondence to third parties such as Chris Mole MP, confirms that it has rigidly applied the Local Authority Agreement, which is a document intended to be used for guidance. There is no statutory requirement that family associations can only ever mean parents, adult children, brothers or sisters or that the relevant family members must have been resident in the area for 5 years.

•

The Council’s approach in this case suggests it may have applied a blanket policy. In this respect we are mindful of the limited enquiries made of Mr Ozbek’s family associations and we note a statement in its decision letter of 19^th July, which reads; ‘…we would not consider cousins to constitute a family connection.’

•

We would submit that Mr Ozbek’s case has not been given sufficient individual consideration and that the extent of his family associations has only been looked at superficially. A thorough consideration of Mr Ozbek’s family associations with Ipswich would have involved obtaining more information from the families concerned, and a consideration of the cultural importance of the extended family ties, the extent of the Ozbek family’s need for support from all family members and the circumstances under which the three brothers came to live in Ipswich insofar as these would inevitably make it more difficult to satisfy a rigid application of the test.

•

In respect of the first two decision letters the Council failed to address the issue of a family connection despite having been informed of Mr Ozbek’s family associations with the Ipswich area. The letters appeared only to address residence in Southampton and Portsmouth which, in the light of R v Slough BC ex p Khan (1995) 27 HLR 492 QBD, was sufficient to invalidate them. Whilst we recognise that the Council has issued its third decision letter with the intention of correcting this defect and making the decision less challengeable we would submit that the changes were presentational and superficial. In this respect we would rely on the fact that the Council’s file notes indicate that no further enquiries were made of Mr Ozbek or any third parties regarding the extent of family associations between the respective homelessness decisions as the Council’s efforts were focussed purely on making a referral to Southampton or Portsmouth.”

The letter went on to remind the authority that there was no statutory definition of ‘family associations’. It listed seven households in Ipswich, said to be related to the applicant, “who have lived in the area for a collective total of more than 44 years”. Those are the same households as those mentioned in the attachment to the letter from the Member of Parliament. The letter from Shelter continued:

“The importance of the above family members to . . . Mr Ozbek, his wife and children and their well being should not be underestimated and we would ask the Council to accept the following factors as evidence of a local connection through family associations.

•

Mr Ozbek and his two brothers, Mehmet and Mustafa were granted asylum from Turkey as they were all persecuted and in fear of further persecution because of their involvement in the Kurdish Party, HADAP. The brothers therefore share a number of traumatic experiences and remain reliant on each other in a way that would not be common to most homeless applicants and in a way that requires frequent direct contact.

•

Mr Ozbek’s cousins have played an essential role in providing support since the family’s arrival. The support initially involved practical help, such as providing transport to facilitate asylum applications and assisting with a homelessness application, and has continued on a day-to-day basis since the family’s arrival in Ipswich. Mr Ozbek and the rest of his household felt alone and isolated from this support whilst accommodated in Southampton and Portsmouth.

•

As stated previously to the Council, Mr Ozbek is reliant on his cousins for future employment and there are plans for them to help him set up his own business.

•

Mr Ozbek’s wife is currently reliant on her cousin by marriage to help her to learn English. As the cousin herself is English and visits the Ozbek family regularly she will be able to provide an invaluable role in supplementing Mrs Zorel’s learning once she has begun the language courses she intends enrolling on. Family members will be able to assist with childcare to facilitate this.

•

Close family relationships are important to Mr Ozbek’s two children and particularly his eight-year-old son, who has suffered much change and instability since his arrival in the UK. Now that he is located in Ipswich Mr Ozbek's son has cousins he can play with and relate to.

•

As stated earlier there is no family support available other than in Ipswich. The fact that Mr Ozbek’s parents and Mrs Zorel’s surviving parent continue to live in Turkey means that much of the close family support that is normally available is inaccessible to the Ozbek family. This makes associations with, and support from, cousins all the more important.

In view of the above circumstances, and particularly those under which the three brothers came to live in Ipswich, it would be unfair to deny there is a family connection on the ground that neither of Mr Ozbek’s brothers has yet resided in Ipswich for 5 years.

Furthermore, although cousins are not commonly treated as close relatives for the purpose of establishing a local connection, in this case it would be appropriate to do so given the closeness of the relationship between the respective families.”

In the event that the authority were to uphold its decision that the applicant did not have a local connection because of family associations (section 199(1)(c) of the Act), the letter invited acceptance of the proposition that the need to be accommodated in the same district as family members was sufficient to confer a connection under section 199(1)(d) (special circumstances). It then suggested that, even if the authority were to decide there was no local connection with Ipswich under any of the paragraphs of section 199(1) of the Act, the authority should decide, in the exercise of its discretion, not to refer the homelessness application to Portsmouth.

It was against that background that Ipswich Borough Council reviewed their decision that the applicant had no local connection with its district for the purposes of section 199 of the 1996 Act. It is clear that the authority treated the decision under review as that notified in the letter of 19 July 2005; and that they were correct to do so.

The decision on review was notified to the applicant by letter on 3 August 2005. That decision letter, if I may say so, is a model for letters of this nature – at least in structure. The letter set out with clarity the authority’s understanding of the law, the questions which the authority had thought necessary to address, and the conclusion (and the reasons for the conclusion) which the authority had reached on each of those questions. The three questions which the authority addressed were posed in these terms: do you have a local connection with Ipswich because of family connections; do you have a local connection with Ipswich due to other special circumstances; do you have a local connection with Portsmouth?

The decision letter stated that the reviewing officer (Mr Joe Howarth, Head of Housing and Social Needs) had considered the submissions made by Shelter in the letter dated 22 July 2005; and that he had considered the Code of Guidance and the Referral Guidelines. It was acknowledged that there was no statutory definition of “family associations”. The decision letter went on:

“The Local Authority Agreement says that family associations giving rise to a local connection normally arise when an applicant or a member of his household has parents, adult children or brothers or sisters who have been resident in the area for a period of at least five years. It also says that only in exceptional circumstances would the residence of other relatives be taken to establish a local connection.

The courts have given guidance about family associations; they have said that family associations do not normally extend beyond parents, adult children or siblings, although the courts have also said that wider associations should not be dismissed out of hand.

. . .

The courts have also given guidance about other special circumstances. They have said that a mere desire to return to an area which the applicant has a local connection cannot amount to a special circumstance giving rise to a local connection with a different area, they have also suggested that if there is a connection with a distant relation that is of special significance, that it should not automatically be disqualified.”

The first question – “Do you have a local connection with Ipswich because of family associations?” – was answered by the reviewer in these terms:

“While it is evident that you have fairly extensive family connections in Ipswich, only your brothers fall within the class of relationship which would ordinarily constitute a family connection. Your brothers have only been resident in Ipswich for approximately eighteen months, nothing like the five-year period referred to in the guidance. I have also considered whether your other relations including cousins establish a family connection, and have considered what Shelter have said about the help and support they offer. While I accept that your family members do provide help and support I consider that your needs in these areas are capable of being met outside of your family, and that many organisations in both the statutory and voluntary sectors throughout the country are capable of providing the help and support you and your family need.

I therefore conclude that you do not have a local connection due to family circumstances under s199(1)(c) of the Housing Act 1996.”

The second question – “Do you have a local connection with Ipswich due to other special circumstances?” – was answered in these terms:

“I have considered the evidence on the homelessness file and that provided by Shelter. While acknowledging the help and support your family members provide, as I have said in the previous paragraph I consider your need in these areas are capable of being met outside of your family by many organisations in both the statutory and voluntary sectors throughout the country.

I therefore conclude that you do not have a local connection due to other special circumstances under s199(1)(d) of the Housing Act 1996.”

The third question – “Do you have a local connection with Portsmouth?” – was answered in these terms:

“I have explained above why I have concluded that you have no local connection with Ipswich under s 199(1). However section 199(6) of the Housing Act 1996 says that a person has a local connection with an area if he was provided with accommodation there under s 95 of the Immigration and Asylum Act 1999, and that he has not subsequently been provided with accommodation elsewhere under s 95 of the Act. The Homelessness Code of Guidance makes it clear that a local connection under s 199(6) does not override a local connection under s 199(1).

I note what Shelter have said about the fact that you only presented as homeless in Portsmouth at the instigation of NASS. I do not consider this to be relevant as the Council exercised its discretion to refer you to Portsmouth on the basis that it believed you had a local connection with Portsmouth as a consequence of s 199(6) not because you presented there as homeless initially. In any event Portsmouth City Council have accepted that you have a local connection with their district established as a result of occupying NASS accommodation provided under the Immigration and Asylum Act 1999. I accept that you were only accommodated there for [around] three months, however I also note that you have also only lived in Ipswich for three months. I note what has been said about the help and support provided by your family but I still conclude that adequate help and support would be available for you and your family elsewhere. Neither do I consider that a period of three months living in Ipswich will have meant that you have established a wide range of connections.

When I consider that you have no local connection with Ipswich under s 199(1) but that you do have a local connection with Portsmouth City Council under s 199(6) and that I have no evidence that you or any member of your family are in fear of violence I therefore conclude that the council is entitled to refer you to Portsmouth.”

The reviewing officer then went on to consider whether, in the exercise of their discretion, the authority should decide not to refer the application to another authority, notwithstanding that they were entitled to do so:

“Shelter have also requested that in the event of the Council deciding that the council is entitled to refer you to Portsmouth that we exercise discretion in not referring you to another authority and that we take account of your circumstances and the fact that you have only lived in Portsmouth for three months.

Having considered all the information available to me I consider that the council should exercise its discretion to refer you to Portsmouth.”

For those reasons the decision notified by the letter of 19 July 2005 was upheld.

The applicant appealed to the County Court under s 204 of the Act. The grounds of appeal, as set out in the appellant’s notice were these: “(1) the respondent has rigidly construed the local authority agreement as if it were statute, which it is not; (2) the respondent has failed to properly consider the appellant’s family connections in the Ipswich area and has arrived at a decision which is plainly wrong; (3) the respondent failed to exercise its discretion in a fair and open minded way, failed to interview the appellant fairly and sought simply to return the appellant to Portsmouth where he has no family connections”. There was no challenge to the authority’s decision that the applicant did have a local connection with Portsmouth (in the context of section 199(6) of the Act). Nor, as the judge observed at paragraph 55 of her judgment, was there a challenge to the authority’s decision that there were no ‘special circumstances’ which could found a local connection with Ipswich (under paragraph 4.1(iv) of the referral Guidelines) in the absence of ‘family associations’.

That appeal came before Her Honour Judge Ludlow. She allowed the appeal. The judge’s reasons for reaching that conclusion appear from the judgment which she delivered on 5 October 2005. At paragraphs 28 and 29 of that judgment she directed herself as to the principles which she should apply on an appeal under section 204. She recorded that it was common ground that :

“ . . . under section 204, an appeal lies on a point of law alone and the Court will not interfere with the decision to made by the Local Authority reviewer unless the wrong test has been applied by the reviewer or he is plainly wrong.”

She took the test of “plainly wrong”, in that context, from the speech of Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service [1984] 3 AER 935. She accepted that, to meet that test, a decision must be so outrageous in its defiance of logic or of accepted standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.

She referred to two sources of guidance on family association: the Referral Guidelines, which I have already noted, and the decision of this Court in R v Hammersmith & Fulham London Borough of Council ex parte Avdic (1996) 30 HLR 1. She noted that, in Avdic, the relevant passage in the decision letter – which attracted no criticism in this Court – was in these terms:

“Case law and guidance from the Government has determined that close family relatives be defined as mother/father, brother/sister, son/daughter. This is not the case with Miss Avdic, but we are prepared to make an exception in this case on account of Miss Avdic’s refugee status and accept this connection if it can be shown that her close proximity to this cousin is essential to her wellbeing and we have evidence that being parted from him would seriously compromise her recovery from the mental illness she is currently suffering.”

She noted, also, paragraphs 4.1(iii) and (iv) of the Referral Guidelines.

After setting out the answer given in the review decision to the first question which the authority had posed – “Do you have a local connection with Ipswich because of family associations?” – the judge said that there were three factors which had led her to conclude that Mr Howarth had been over rigid in his application of paragraph 4.1(iii) of the guidelines, “. . . ignoring his accepted wide discretion and not considering whether he should use it”. She said this, at paragraphs 44 to 47 of her judgment:

“44.

First, the bare statement in the review that Mr Ozbek’s brothers had only been resident in Ipswich for approximately eighteen months, nothing like the five-year period referred to in the guidance. This either ignored or disregarded, either without reasons or without giving reasons, the fact that because of their flight from persecution it would not have been possible for the two brothers in Ipswich to build up a residence period normally of at least five years.

45.

Secondly, again without some or any reference to the individual needs and support afforded by Mr Ozbek’s brothers, cousins and his wife’s cousin, the general assertion that Mr Ozbek’s needs, which I note must therefore have included the emotional, are capable of being met outside his family and referring to many organisations, though Mr Howarth did not name them or indicate their nature or resources within the statutory and voluntary sectors throughout the country which he asserted were and are capable of providing the help and support Mr Ozbek and his family need, and needed then.

46.

Thirdly, despite Mr Howarth earlier reminding himself that wider family associations should not be dismissed out of hand, there is nowhere within this paragraph an appraisal of the whole picture of this particular family’s family association within the frame of the accepted Shelter facts.”

It can be seen that the judge had addressed both the first and second of the grounds of the appeal which was before her in those paragraphs, but she went on to say this, at paragraphs 47 and 48 of her judgment:

“47.

I note that there is a mention by Mr Howarth in his earlier record that he had considered the argument from Shelter about why the closeness of family relationship should be taken into account.

48.

Quite simply, there is no set out of why, given the level that it was placed at by Shelter which is not dispute within Mr Howarth’s review, all these matters could be met outside of the family association.”

The judge then turned to the third ground of the appeal which was before her – the alleged failure on the part of the authority to exercise its discretion in a fair minded way. She said this, at paragraphs 52 and 53 of her judgment:

“52.

It is clearly draconian to refer a family in the Ozbeks’ position with the Ozbeks’ needs who, as [counsel for the authority accepts], had not been shopping for the best possible homelessness placement as undoubtedly some applicants do to a local authority with whom there is a connection, but who has discharged its duty and therefore has said it will not re-house them as a matter of priority. This and the fact that it is accepted that they have no family or friends to support them in Portsmouth, coupled with their past experiences and needs as set out by Shelter, necessitates that in exercising the discretion of removal to Portsmouth those issues have to be specifically addressed by the reviewing officer – a bland, having considered all the information available to me in these particular circumstances, cannot suffice to provide reasons. This must be particularly so when Mr Howarth recognised, as he did, that Mr Ozbek had a priority need, yet he knew that it would not be addressed in the light of his referral decision. Natural justice requires any authority engaging in the decision-making process to properly explain those decisions. That is particularly so in the case of draconian decisions and particularly so where a statutory reviewer is reviewing a decision.

53.

While a court is not going to overturn a decision which does not cross every T and dot every I or occasionally, through a typing error or error of use of language uses some small inappropriate phrase or matter, the court would not in any way overturn such a decision, but a court will, when using its powers and duties as an appellate court under section 204, appraise the reviewer’s duty to review and conform with natural justice. In any case where a reviewer does not give full reasons for such a draconian decision, how could a court say whether he was plainly wrong or not? The reviewer would avoid the test being applied by simply not dealing with the issues involved.”

The judge’s conclusions are set out at paragraphs 54 and 55 of her judgment:

“54.

Weighing all these matters and reminding myself of the legal framework of my decision, I conclude that Mr Howarth was plainly wrong in his review decision in respect of whether Mr Ozbek had a local connection with Ipswich because of family associations and was both plainly wrong and not exercising his function of review in accordance with natural justice in exercising his discretion to refer to Portsmouth. . . .

55.

I conclude that on the Borough Council’s own case the Council’s original decision of the 19^th July could not have been upheld by the review because it was flawed. Any review should have dealt with these flaws showing the reviewer considered the decision in that form defective and then have considered, in accordance with the reviewer’s duty on all the issues, submissions and law, whether the conclusions of the defective decision could stand, though its reasoning could not for the reasons set out by the reviewer and not for those set out in the decision.”

As I have said, the judge allowed the appeal. But she did not simply quash the review decision. She went further and declared that the appellant did have a local connection with Ipswich for the purposes of section 199 of the Housing Act 1996. I do not find it possible to identify, in her judgment, the reasoning which led her to conclude (if she did) that that was the only decision that the authority, acting rationally and with the benefit of further enquiry, could have reached – see the observations of Lord Justice May (with whom the other members of the Court agreed) in London Borough of Tower Hamlets v Deugi [2006] EWCA Civ 159, [36]. The applicant’s counsel was, I think, minded to accept that it would be difficult to uphold that element of the judge’s order.

The authority appeal to this Court with permission granted by Lord Justice Tuckey on 1 November 2005. The grounds of appeal are set out in the appellants’ notice under seven paragraphs; but the real issues, as it seems to me, are, first, whether the authority fell into the error of applying the guidance given in paragraph 4.1(iii) of the Referral Guidelines with undue rigidity and, second, if the authority were entitled to take the view that the conditions for referral were met, whether the authority’s decision to refer the application to Portsmouth can be challenged as a flawed exercise of discretion.

It is not in dispute that, if the authority failed to appreciate that the guidance given in paragraph 4.1(iii) of the Referral Guidelines did not relieve them of the need to apply their mind to the particular facts of the individual case, they erred in law. The need to consider each case on its own facts was identified by Lord Brightman in Eastleigh Borough Council v Betts [1983] 2 AC 613, 627H-628A:

“. . . there is no objection to [an] authority operating a policy or establishing guidelines, for reasons the authority may legitimately entertain, and then applying such policy or guidelines generally to all the applications which come before them, provided that the authority do not close their mind to the particular facts of the individual case. . . .” [emphasis added]

Betts was a decision on provisions in the Housing (Homeless Persons) Act 1977 which, in substance, have been re-enacted in Part VII of the 1996 Act. Section 4(5) of the 1977 Act imposed the ‘full’ or ‘main’ housing duty now found in section 193(2) of the 1996 Act. Section 5(1) of the 1977 Act subjected that duty to the qualification now found in section 193(2) and in section 198(2)(a) and (b) of the 1996 Act. Sections 5(7) and (8) of the 1977 Act contained the provisions now found in sections 198(5) and (6) of the 1996 Act. And section 18(1) of the 1977 Act contained the statutory test of ‘local connection’ now found in section 199(1) of the 1996 Act.

As Lord Brightman explained (ibid, 621E-622A) a national ‘Agreement on Procedures for Referrals of the Homeless’ was negotiated in order to facilitate agreements between local authorities in the context of section 5 of the 1977 Act. He said this:

“it is obvious that time consuming and expensive disputes might arise between housing authorities as to the existence of a ‘local connection’. Such disputes are not in the interest either of housing authorities or of homeless persons. The purposes of the Act demand speedy solutions to questions of doubt. To avoid such disputes, and to settle them quickly and cheaply if they arise, certain steps have been taken on behalf of housing authorities. First, in order to facilitate agreements between notifying authorities and notified authorities as required by section 5(7) a national ‘Agreement on Procedures for Referrals of the Homeless’ was negotiated between the Association of District Councils, the Association of Metropolitan Authorities and the London Boroughs Association at the time when the Bill was being considered by Parliament. This agreement has been adhered to by the majority of housing authorities. Secondly, by the Housing (Homeless Persons) (Appropriate Arrangements) Order 1978 (SI 1978 No 69), the Secretary of State for the Environment, in exercise of his powers under section 5(8) has established the ‘Appropriate Arrangements’ set out in the schedule to the order for the purpose of settling unresolved disputes between housing authorities. These arrangements are in a form which was agreed by the three associations who negotiated the Agreement on Procedures. They provide for any disputed question under section 5 to be determined speedily either by a person agreed upon by the authorities concerned or by a person chosen from a panel. These arrangements came into operation on January 21, 1978, that is to say a few weeks after the Act of 1977 came into force. There is evidence that he Agreement on Procedures has worked well, and that as a result there have only been about 50 references under the order since the Act came into force.

The Agreement on Procedures does not purport to impose a legally binding code on housing authorities who adhere to it. It is merely a policy document.”

The Agreement on Procedures - in common with its successor, the Referral Guidelines - gave guidance on the meaning to be given to the expressions “normally resident”, “employed”, “family associations” and “special circumstances” which then appeared in section 18(1) of the 1977 Act and are now found in section 199(1) of the 1996 Act.

The facts in the Betts case have some similarity with those in the present case. The applicant, Mr Betts, had applied to Eastleigh Borough Council for accommodation under the 1977 Act. Eastleigh had taken the view that the applicant had no local connection with its district and had referred the application to Blaby District Council, within whose district the applicant and his family had formerly been living. Blaby accepted the referral and offered accommodation. The applicant refused that offer and made a further application to Eastleigh. In relation to that application Eastleigh took the view that, in referring the earlier application under section 5 of the 1977 Act, they had discharged their duty to the applicant. The applicant sought judicial review of that decision on the grounds that Eastleigh (in that context, the notifying authority) had been wrong to decide that the applicant had no local connection with their own district. The basis for that decision was that the applicant’s connection with Eastleigh did not fall within the working definition of ‘normal residence’ set out in the Agreement on Procedures for Referrals of the Homeless.

In resisting the application for judicial review, the chief housing officer of Eastleigh had explained, in an affidavit, that:

“. . . In considering the question of ‘normally resident’ I had regard to the revised ‘Agreement on Procedures for Referrals of the Homeless’ which states that ‘a working definition of normal residence should be that the household has been residing ‘for at least six months in the (borough) during the previous twelve months’ (clause 2.5) . The applicants having only resided in the borough for some four months before the date of their application on February 6, 1981, I considered that a ‘normal residence’ had not been established within the meaning of the Act. The Revised Agreement on Procedures for referrals of the Homeless’ is in wide use by local authorities when considering a referral under section 5 of the Act of 1977, and Blaby District Council fully accepted the working definition of normal residence.”

The application for judicial review was dismissed by Mr Justice Webster; but an appeal from his order was allowed by this Court ([1983] 1 WLR 774). In his judgment, Lord Justice Stephenson observed that the chief housing officer “did fetter the council’s decision by a rigid application of the suggested definition of normal residence [in the Agreement on Procedures]”. The House of Lords reversed the decision of the Court of Appeal ([1983] 2 AC 613).

In the course of his speech (with which the other members of the House agreed) Lord Brightman identified the ‘fundamental question’ which local housing authorities were required to decide in the context of the conditions for referral. He said this (ibid, 627C-E):

“ . . . that [what is meant in section 18(1)(a) of the 1977 Act by the term ‘normally resident’] is not the fundamental question. The fundamental question is the existence of a ‘local connection’. In construing section 5 it is only to be expected that the emphasis falls on ‘local connection’, and not on past residence or current employment, etc. The Act is one which enables a homeless person to jump over the heads of all other persons on a housing authority’s waiting list, to jump the queue. One would not expect any just legislation to permit this to be done unless the applicant has in a real sense a local connection with the area in question. I accept that ‘residence’ may be changed in a day, and that in appropriate circumstances a single day’s residence may be enough to enable a person to say that he was normally resident in the area in which he arrived only yesterday. But ‘local connection’ means far more than that. It must be built up and established; by a period of residence; or by a period of employment; or by family associations which have endured in the area; or by other special circumstances which spell out a local connection in real terms.”

That passage was adopted by Lord Hope of Craighead in the conjoined appeals of Al-Ameri v Kensington and Chelsea Royal London Borough Council and Osmani v Harrow London Borough Council [2004] UKHL 4, [38]; [2004] 2 AC 159, 175D-F. He emphasised, in the context of construing the provisions in sections 199(1) and 198(2) of the 1996 Act (ibid, [37]; 175B-C) that:

“. . . ‘local connection’ was not a defined expression, the effect of which was to entitle the reader to construe it by substituting ‘is or was normally resident in,’ or ‘is employed in,’ or ‘has family associations with’ for the words ‘has a local connection with’. What section 18(1) [of the 1977 Act] did was to specify those factors alone upon which a local connection could be founded. The fundamental question was the existence of a local connection.”