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:

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

An order may direct that the arrangements shall be –

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

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):

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

because he is employed there,

because of family associations, or

because of special circumstances.

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

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

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:

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

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:

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

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:

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

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:

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.”

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.

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

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:

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 :

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:

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:

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:

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

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:

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:

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:

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):

In the Betts case, Lord Brightman went on to say this (ibid, 627F-628B):

I have set out those passages in the speech of Lord Brightman in the Betts case at some length because, as it seems to me, they draw attention to five points which are of importance in the context of the present appeal. First, that the statutory purpose underlying the provisions now found in sections 193(2), 198(2) and 200(3) and (4) of the 1996 Act is (so far as possible) to place the burden of providing accommodation for the homeless applicant upon the local housing authority with whose district the applicant has a real connection; and to relieve the authority with whose district the applicant has no real connection from that burden. Second, that the scheme by which that purpose is to be achieved depends, primarily, upon agreement between the authority to whom the application is made (the notifying authority) and the authority to whom the application is to be referred (the notified authority) as to whether the conditions for referral are met; and, in default of agreement, upon determination under arrangements prescribed by the Secretary of State. Third, that one purpose – indeed, perhaps, the principal purpose - of the Referral Guidelines and their predecessor, the Agreement on Procedures, is to facilitate agreement between authorities on the question whether the conditions for referral are met; or to provide a basis for speedy and inexpensive resolution of disputes between authorities on that question. Fourth, that that purpose is unlikely to be achieved unless authorities do follow the guidance which those guidelines provide by applying that guidance “generally to all applications which come before them”. And fifth, that an authority is not to be criticised for following that guidance in the individual case, provided that they have not closed their mind to the possibility that the particular facts of that case may require a departure from the guidance which they would apply more generally.

It is, I think, pertinent to emphasise the fourth of those points. The conditions for referral – set out in section 198(2) of the 1996 Act – include (a) that the applicant does not have a local connection with the notifying authority and (b) that the applicant does have a local connection with the notified authority. It is desirable (if the statutory scheme is to work smoothly) that both notifying authority and notified authority should be able to agree on both conditions. Or, to put the point another way, it is desirable that the notified authority – who is being asked to assume the burden of providing accommodation for the applicant in the place of the notifying authority - should be able to accept the view of the notifying authority both that the applicant has no local connection with the district of the notifying authority and that the applicant does have a local connection with their own district. Ready agreement is unlikely to be achieved on those two points unless both the notifying authority and the notified authority are able to approach the question from a common basis. It is the need for that common basis which, as it seems to me, provides the imperative for all authorities to apply the guidelines “generally to all applications which come before them”.

We were referred to the judgments of Mr Justice Tucker and (on appeal) in this Court in R v Hammersmith London Borough Council, ex parte Avdic(1996) 28 HLR 897; (1996) 30 HLR 1. The statutory provisions relevant in that case were enacted in Part III of the Housing Act 1985; but those provisions were in the same terms (so far as material) as the provisions in Part VII of the 1996 Act. In particular, sections 65(2), 67(2)(a) and (b) and 61(1) of the 1985 Act are re-enacted as, respectively, sections 193(2), 198(2)(a) and (b) and 199(1) of the 1996 Act.

Ms Avdic was a refugee from Bosnia with two children. Following her arrival in the United Kingdom she had been housed in Yorkshire. She wished to move to London where she had a cousin. She applied to Hammersmith London Borough Council for housing assistance under Part III of the 1985 Act. Hammersmith took the view that she had no local connection with their area and referred her application to Kirklees Metropolitan Council. She sought judicial review of that decision. In dismissing that application Mr Justice Tucker said this (ibid, 899):

An appeal from Mr Justice Tucker’s order was dismissed by this Court, (1996) 30 HLR 1. It is clear that the applicant did not advance an argument she had a local connection with Hammersmith because of family associations. But Lord Justice Simon Brown said this (ibid, 6-7):

Counsel for the appellant authority, in the present appeal, sought to persuade us that the Avdic case was authority for the proposition that a ‘local connection because of family associations’, for the purposes of section 199(1)(c) of the 1996 Act, could only be founded on the presence, in the district of the notifying authority, of near relatives – mother/father, brother/sister, son/daughter. I do not accept that proposition; and I reject the contention that the observations in the Avdic case – whether in this Court or in the court below – provide support for that proposition. It is important to keep in mind that the applicant in the Avdic case did not assert that she had a local connection with Hammersmith because of family association. It would have been impossible for her do to so, as it seems to me, in the circumstances that the relative whose support she sought did not, himself, live in the borough.

For my part, I would accept that an authority would be entitled to decide that an applicant had a local connection because of family associations with their own district, or with the district of another authority, in circumstances where there were no near relatives of the applicant living in the relevant district – or where the relatives who were living in the district had not been living there for the five year period mentioned in paragraph 4.1(iii) of the Referral Guidelines. It may be said that the decision of an authority to which application for housing assistance has been made that the applicant has a local connection with their own district is unlikely to be challenged – because, prima facie at least, that is the district in which the applicant wants to be housed and no other authority is likely to be interested in disputing the point – and that (even if there were a challenge to the decision that the conditions for referral were not met) the authority to whom the application had been made could determine, as a matter of discretion, not to make the referral. But there are circumstances in which (in practice) there might be a challenge to an authority’s decision that there was a local connection because of family associations (absent near relatives who had been living in the district for at least five years). In a case where the authority to which application for assistance has been made has decided that there is a local connection, on those grounds, with the district of another authority, the challenge might come either from that other authority (seeking to resist a referral) or (if the two authorities were in agreement) from the applicant.

The question in the present case, of course, is not whether the authority to which application for assistance was made would have been entitled to decide that the applicant had a local connection with their own district because of family associations: the question is whether the authority was entitled to decide that the applicant did not have a local connection with their own district. The judge determined that question against the authority. In my view she was wrong to do so.

There is no doubt that the review decision addressed the correct question: “Do you have a local connection with Ipswich because of family associations?”. The judge criticised “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.” But there is no dispute that that statement was factually correct. The judge observed that “this either ignored or disregarded, either without reason 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.” But there is no reason to think that the reviewer ignored the fact that the applicant’s two brothers were also refugees (on the basis of persecution in Turkey). That point had been made in Shelter’s letter of 22 July 2005, which – as the review decision makes clear – the reviewer had taken into account. Further, there is no reason to think that the reviewer ignored the obvious fact that the two brothers could not have “built up a residence period” in Ipswich before they had arrived in the United Kingdom. It is unclear why the judge thought that the two brothers had been in the United Kingdom for less than five years; although she may well have been correct in that belief. What is clear is that the reviewer, conscious of the fact that the two brothers had arrived in the United Kingdom as refugees, took the view that the fact that one had been resident in Ipswich for little more than eighteen months and the other for less than twelve months did not provide the applicant with a local connection because of family associations. In the light of the guidance given in the Referral Guidelines – which, as the reviewer noted, indicated that a local connection would normally arise if a close family member had been living in the authority’s district for at least five years - the judge should have recognised that it was impossible to say that that view was untenable.

The judge criticised the reviewer for taking the view that the applicant’s needs for help and support were capable of being met outside the extended family without naming the “many organisations . . . 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”. And she went on to say that “despite Mr Howarth earlier reminding himself that wider family associations should not be dismissed out of hand, there is nowhere . . . an appraisal of the whole picture of this particular family’s family association within the frame of the accepted Shelter facts.” But the reviewer (Mr Howarth) had accepted that a local connection because of family associations could founded on the residence of family members other than close relatives; and he had taken into account the help and support which (it was said) the wider family provided in the present case. And there is no reason to think that the reviewer was wrong to take the view that there were many agencies, throughout the country, in both the statutory and voluntary sectors, which could and would provide support for refugees. The existence of such agencies is widely known. It is, to my mind, inconceivable that a senior officer in the field of local authority housing would not be very well aware of the support that they provide; and inconceivable that a senior officer would not be very well aware that that support would be available in Portsmouth – a city which is both a known port of entry for asylum seekers and (it seems) a dispersal centre for those arriving in Southampton. The judge’s conclusion that the review decision was defective, in that it failed to name those agencies or indicate their nature and resources, cannot be sustained.

In addressing the judge’s criticism of the review decision it is, I think, pertinent to have in mind the observation of Lord Justice Simon Brown, in the Avdic case, that Part VII of the Housing Act 1996 imposes obligations on local housing authorities in relation to the needs of the homeless for accommodation and assistance with housing: it does not impose some more general ‘welfare’ function. The functions of local authorities in relation to the provision of social services are to be found in other legislation. Sections 193(2), 198(2) and 200(3) and (4) of the 1996 Act are directed to the question: on which authority should the burden of providing accommodation fall? It is in that context that the enquiry, under section 199(1) of the Act, “does the applicant have a local connection” arises. The enquiry, in that context, is not: “is the welfare of the applicant and his family better served by providing accommodation for them in the district of one authority rather than in the district of another”. The answer to that question may, properly, affect the decision of an authority not to make a referral which it would be entitled to make. And, in an exceptional case, the fact that the needs of the applicant can only be served by providing accommodation in the district of one local authority rather than in the district of another may lead to the conclusion that he has a local connection because of special circumstances. But that is not, now, said to be this case.

The enquiry, in the present case, was whether the applicant had a local connection with Ipswich because of family associations. In the context of that enquiry, as it seems to me, the fact that the welfare of the applicant and his family might be better served by the help and support which would or might be provided by his extended family than by voluntary or statutory agencies had little or no relevance. The relevant question was whether, in the particular circumstances of the individual case, the bond between the applicant and one or more members of the extended family was of such a nature that it would be appropriate to regard those members of the extended family as ‘near relatives’ in the sense in which that concept is recognised in the Referral Guidelines.

The reviewing officer addressed that question. As he said: “I have also considered whether your other relations including cousins establish a family connection”. And he addressed that question, as he said, with the representations made in Shelter’s letter of 22 July 2005 – including the need to consider the cultural importance of extended family ties – in his mind. He reached the conclusion that the question should receive a negative answer. In my view he was entitled to reach that conclusion. His decision should have been respected by a court exercising jurisdiction under section 204 of the 1996 Act.

I turn, therefore, to the question whether, if (as I would hold) the authority was entitled to conclude that the conditions for referral were met, the authority’s decision to refer can be challenged as a flawed exercise of their discretion.

There is no doubt that that the authority retained a residual discretion not to refer the application to Portsmouth. Lord Justice Simon Brown addressed the point in the Avdic case (ibid, 7):

The authority recognised that, notwithstanding that they had decided (and agreed with Portsmouth) that the conditions for referral were met, they could decide, unilaterally, that they would not make a referral in this case. The reviewer noted that Shelter had requested that the authority “exercise discretion in not referring [the applicant] to another authority”. His decision was that: “Having considered all the information available to me I consider that the Council should exercise its discretion to refer you to Portsmouth”. The judge described the decision to refer as “draconian”. She was struck by the facts (i) that Portsmouth had taken the position (in their letter of 11 July 2005) that they would not be re-housing the applicant because they had already discharged their duty under Part VII of the 1996 Act on 3 May 2005, by offering accommodation which had been refused, and (ii) that the applicant had no family or friends to support them in Portsmouth.

In my view the first of those facts was of no legal relevance to the decision which the authority was required to make. If Portsmouth were correct in their view that they had already discharged their duty to the applicant by the offer of accommodation made earlier in the year, then effect had been given to the applicant’s rights under Part VII of the Act to have accommodation made available for his occupation and there was no basis upon which he could expect the burden to be assumed, voluntarily, by another authority. And if Portsmouth were wrong to think that the offer of accommodation already made discharged the housing duty imposed on them by the referral in July 2005, then the applicant had his remedy under the Act. He could seek a review by Portsmouth of its decision that no further duty was owed; and, if necessary, he could take the decision on that review to appeal under section 204 of the Act. Right or wrong, there was no reason why the position taken by Portsmouth should require Ipswich to exercise their discretion so as to decide against making the referral that (on this hypothesis) they were entitled to make.

Nor, as it seems to me, can the authority be criticised for taking the view that the absence of family or friends to support the applicant in Portsmouth was not a sufficient reason to decide against making the referral that they were entitled to make. It is, I think, important to appreciate the circumstances in which section 199(6) of the 1996 Act was introduced into the legislative scheme by the Asylum and Immigration (Treatment of Claimants, etc) Act 2004.

The assumption which may be taken to have prompted conditions (a) and (b) in section 198(2) of the 1996 Act, when first enacted, is that an applicant could be expected to have, in a real sense (to adopt the words of Lord Brightman in the Betts case), a local connection with at least one authority. That underlying assumption may well have been soundly based in 1977. An applicant who had been born or raised in this country, or an immigrant who had settled here, would be likely to fall within one or more of the paragraphs now enacted in section 199(1) of the 1996 Act. He might, of course, have a local connection with more than one authority under those paragraphs. But, following the enactment of Part VI of the Immigration and Asylum Act 1999, the assumption that an applicant would have a real local connection with at least one authority had come to have little or no foundation in the case of those applicants who had been subject to immigration control within the meaning of the Asylum and Immigration Act 1996. There was no reason why such applicants should fall within any of paragraphs (a) to (d) of section 199(1) of the 1996 Act.

Section 185 of the Housing Act 1996 provided that persons subject to immigration control within the meaning of the Asylum and Immigration Act 1996 were not, generally, eligible for housing assistance. Their entitlement to support (if any) was governed by Part VI of the Immigration and Asylum Act 1999. The relevant statutory provisions were set out by Lord Bingham of Cornhill in Al-Ameri v Royal Borough of Kensington & Chelsea [2004] UKHL 4, [8] to [12]; [2004] 2 AC 159, 165G-167C. Support for asylum seekers was provided under those provisions by the National Asylum Support Service (NASS). The position was explained by Lord Bingham at paragraph [18] of his speech (ibid, 169E-F):

But, once an applicant was granted refugee status or indefinite leave to remain, the bar to assistance under the Housing Act 1996 was lifted. The applicant then became eligible for assistance under Part VII of the Housing Act 1996. The position of such applicants is described by Lord Hope of Craighead in Al-Ameri (ibid, [32], [33]; 173F-H):

The issue in the Al-Ameri case was whether former asylum seekers could be treated as having a local connection with the district in which they had been provided with accommodation by NASS under the 1999 Act – so that an application made to another authority by a former asylum seeker after he had been freed from the restriction imposed by section 185 of the Housing Act 1996 could be referred by that authority to the authority for that district. To put the point another way: could the provisions in sections 193(2), 198(2) and 200(3) and (4) of the 1996 Act be used to implement (or perpetuate) the dispersal policy introduced by the 1999 Act after the former asylum seeker had been given leave to remain in the United Kingdom? The issue turned on whether residence in accommodation provided under the NASS scheme could properly be regarded, in all circumstances, as residence of the applicant’s own choice for the purposes of section 199(1)(a). The House of Lords answered that question in the negative.

The decision of the House of Lords in the Al-Ameri case was handed down on 5 February 2004. The Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 was enacted on 22 June 2004. Section 11(1) of that Act – by which subsections (6) and (7) were added to section 199 of the Housing Act 1996 – was plainly enacted in order to reverse the effect of that decision. Since 4 January 2005 – when section 199(6) and (7) of the 1996 Act came into effect – a former asylum seeker is treated as having a local connection with the district of a local housing authority if he was provided with accommodation in that district under section 95 of the 1999 Act. That may well be – indeed, normally will be - a district in which the former asylum seeker did not choose to reside and in which he has no support from family or friends. But that that would be so must have been regarded by Parliament as an acceptable feature of the dispersal policy, to promote which section 11(1) of the 2004 Act was enacted.

In those circumstances it seems to me impossible to criticise the authority for taking the view that the view that the absence of family or friends to support the applicant in Portsmouth was not a sufficient reason to decide against making the referral that they were entitled to make. The authority was entitled to decide that it should relieve the burden on its own resources by giving effect to the dispersal policy which Parliament had so clearly and recently endorsed.

In my view the judge was wrong to quash the authority’s decision to refer Mr Ozbek’s application for housing assistance to Portsmouth City Council; and wrong to substitute for that decision a declaration that Mr Ozbek had a local connection with Ipswich because of family associations. I would allow this appeal, set aside the order of 5 October 2005 and restore the authority’s decision to refer.

I agree with Lord Justice Chadwick, for the reasons he gives, that the circuit judge had no grounds for oversetting the local authority’s decision, much less for substituting for it an opposite decision. The latter step can be taken only where the decision was erroneous in law and only a contrary decision was lawfully possible.

I would respectfully emphasise what is said in paragraph 43 of his judgment. A local connection is a term of art, defined by s.199(1). One of its allotted meanings is a connection which exists with the locality because of family associations. Family associations are not defined, and it is not permissible for local authorities, individually or by agreement, artificially to limit their meaning. But the expression, like most legislative uses of ordinary words, has natural limits determined by the language itself and by the context in which it is used. Even without resort to the further category of special circumstances, there may be cases in which a local authority is justified in finding a family connection with a locality albeit not based on the immediate consanguinity to which Tucker J in Ex parte Avdic (see paragraph 40 ante) considered the meaning was limited. In my view he was wrong so to limit it. His judgment should not be followed in this regard (and in fact was not followed by the reviewing officer in the present case). A likely example of a wider but qualifying family association with a locality would be the residence there of grandparents or uncles and aunts by whom the applicant had been brought up. Indeed the character of the family association must be at least as relevant – probably more relevant – than the degree of consanguinity. I doubt, for example, whether the presence in the locality of a parent or sibling with whom the applicant has had little contact for years will ordinarily be sufficient constitute a family association within s.199(1)(c). Family association with a locality implies more than the fortuity of having a relative living there.

Similarly, there is no 5-year residence rule in the statute. It is in the Guidelines both as a useful rule of thumb and in the endeavour to establish a common approach among authorities with disparate and potentially conflicting interests. But, as Lord Justice Chadwick points out, a family association may be properly found to exist where the relatives have been in the locality for a shorter period. Indeed the present case might afford an example: the entire extended family had arrived as refugees in the relatively recent past and had settled in Ipswich. They might well, if it were relevant, be held to have a family association with one another; but the problem for Mr Ozbek was that unless and until he could settle in Ipswich, he could establish no family association of his own with the locality.

If the decision had depended upon the availability of welfare and other support in Portsmouth or elsewhere, I would have been inclined to support the judge’s view that this was not adequately addressed by the review decision. I do not think it is possible to assume without inquiry or evidence that, wherever a damaged individual who has been granted asylum here happens to find himself, he will be able to get the help he needs. But, as Lord Justice Chadwick stresses in paragraph 47, and as has been stressed by this court before, the Act is not a general welfare measure. Welfare support is relevant only to the question (which is not usually critical, save as a special circumstance) whether a family or other association with a locality affords irreplaceable personal assistance to the applicant.

The reversal by legislation of the situation established by the decision of the House of Lords in Al-Ameri (see paragraphs 58-9 above) had the positive effect of creating a deemed local connection for refugees with at least one local authority area in the country, but the correspondingly harsh effect of restricting – though not necessarily excluding - their ability to settle in a place of their choice. What evokes particular sympathy in this case is that, unless Portsmouth agrees to reopen their application or to house them under other powers, Mr Ozbek and his wife and children have forfeited their entitlement to housing in Portsmouth in the belief, or perhaps hope, that they would be entitled to be housed in Ipswich where their relatives are. We are told that Mr Ozbek has now found work in Ipswich and so presumably has an income. If so, one hopes that the local authority will give him the time and help he needs to find accommodation in the private sector. Such an outcome would be preferable from everybody’s point of view, not least that of the two local authorities, to the risk of family break-up.

I agree with the judgment of Chadwick LJ. I also share the hope expressed by Sedley LJ at the end of his judgment. That expression of hope illustrates an additional point that I would wish to make. The statutory scheme with which we are concerned does not prevent a person whose asylum application has been granted from settling in parts of the United Kingdom other than that in which he was provided with accommodation under section 95 of the Immigration and Asylum Act 1999. It restricts the number of local authorities who are obliged to provide housing to him outside that part. So far as I am concerned, it is in that sense that there is, as Sedley LJ holds, a restriction on his freedom to settle in a place of his choice.

The case turns on the question of local connection through family associations. I agree with what Chadwick LJ has said about the review decision of the local authority in this case, and also (subject as mentioned) with the judgment of Sedley LJ.