El Goure v The Royal Borough of Kensington & Chelsea

This case is primarily a dispute about the correct criterion for priority need on an application for housing assistance by a homeless father with two small children, who live with their mother, not with him.

Issues of the dependency of children, their needs and reasonable expectations of where they might reside have been fully debated against a background of parental separation and maternal disabilities. The mother, with whom the children reside, is separated from the father. He says that the children could reasonably be expected to reside with him and that he is therefore a priority housing case, contrary to the original decision of the local housing authority, which was upheld first on review and then on appeal.

There is also a procedural point. It turns on the duty of a local housing authority under regulation 6(2) of the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 (the Review Regulations) to notify the father, as a homeless person, of his right to make representations, either himself or someone acting on his behalf, on a review of their decision turning down his priority housing application.

The object of this litigation is to secure for the father provision of accommodation by the local authority, so that the home care of the children undertaken by him will be at his place instead of at their mother’s place. To that end he wants this court to quash the review decision for errors of interpretation and application of the substantive law and for procedural irregularity, so that local housing authority will then have to re-consider his application on the correct legal basis and in a manner compliant with procedural requirements.

Mr Said El-Goure (the appellant) appealed against the review of the original housing decision of the Royal Borough of Kensington & Chelsea (the Council) to the county court under s. 204 of the Housing Act 1996 (the 1996 Act). HHJ Faber dismissed his appeal by order dated 10 March 2011.

On 20 July 2011 Rimer LJ refused permission for a second appeal. At an oral hearing on 11 November 2011 I adjourned the renewed application for permission to appeal to the full court to be heard and determined with an appeal in the case of Maswaku v Westminster City Council (Case No B5/2011/0973), for which permission had been granted by Patten LJ on two grounds. As in Maswaku,one of the grounds of appeal was non-compliance with the procedural requirements of regulation 6(2) of the Review Regulations, which was thought to involve an important point of principle or practice.

According to my reckoning this is the sixth time on which the appellant’s application has been officially considered, starting with the Council’s original decision on the merits of the application, followed by an unsuccessful review, an unsuccessful appeal to the County Court, an unsuccessful paper application for permission to appeal to this court, a renewed oral hearing at which the application was adjourned to the full court and then this appeal. Given the history of repeated re-consideration of the appellant’s case and the detailed representations received from his lawyers at every stage, the accusation that he has been denied a fair procedure is somewhat surprising.

The principal ground of appeal is that there is an error of law in the original decision of the Council, which should have been set aside on review or on the first appeal. The decision was that the appellant was not in priority need, as it was not considered reasonable for him to expect his children, who reside with their mother, also to reside with him in separate accommodation provided by the local housing authority. The basic criticism of the Council’s decisions is that the wrong legal test was applied to the case by asking the question whether the circumstances of the case were “exceptional”, when that was not the right question in the light of the legislation, as interpreted by the House of Lords in Holmes-Moorhouse v. Richmond-upon-Thames LBC [2009] UKHL 7; [2009] 1 WLR 413 (Holmes-Moorhouse).

The correct test was enacted in the 1996 Act. In order to qualify for accommodation under s.189(1)(b) in Part VII (“Homelessness”) of the 1996 Act as a case of priority need the appellant had to show that, although the children had been living in accommodation with their mother since parental separation, he was:-

“…a person with whom dependent children reside or might reasonably be expected to reside.”

In his judgment in Holmes-Moorhouse Lord Hoffmann described (in paragraph 21) the statement in paragraph 8.10 of the Homelessness Code of Guidance for Local Authorities that “it would only be in very exceptional cases though that a child might be considered to reside with both parents” as unhelpful, if taken literally, because in most cases the question will not be whether the child is residing with both parents, but whether, after a separation, he might reasonably be expected to do so. He added that :

“Nevertheless, the sentiment which it [the ‘unhelpful’ Guidance statement] expressed was based on sound instinct because I think it will only be in exceptional circumstances that it would be reasonable to expect a child who has a home with one parent to be provided under Part VII with another so that he can reside with the other parent as well. It seems to me likely that the needs of the children will have to be exceptional before a housing authority will decide that it is reasonable to expect an applicant to be provided with accommodation for them which will stand empty for at least half of the time. I do not say that there may not be such a case; for example, if there is a child suffering from a disability which makes it imperative for care to be shared between separated parents. But such cases, in which that child (but not necessarily any sibling) might reasonably be expected to reside with both parents, will be unusual.”

Lord Hoffmann went on to pay compliments to the county court judge on the clarity and succinctness of his judgment. He quoted with approval a passage in which the judge said that it was for the local housing authority, rather than the court, to consider whether or not a child might reasonably be expected to reside with both parents for housing under Part VII, having regard to their housing resources and other matters. In particular, the housing authority would have to consider whether they should provide two homes, one to each parent, both of which houses were likely to be under-occupied.

The appellant contended that in this case the Council and the court have put an unwarranted gloss on Lord Hoffmann’s judgment by applying a test of “exceptional circumstances” or “exceptionality” which sets the standards of priority need too high. It is obvious that Lord Hoffmann did not lay down, and could not constitutionally lay down, judicial criteria of “exceptional circumstances” in substitution for the statutory test of reasonable expectation of residence.

In any event, the appellant said that the circumstances of his case were in fact “exceptional” and that the Council and the reviewer erred in law in deciding that they were not.

On 6 November 2009 the appellant applied to the Council for homelessness assistance. On 15 January 2010 the Council found that he was not in priority need. On 6 May 2010 that decision was upheld by the reviewing officer. No reference was made at that stage to the need for priority by virtue of dependent children.

On 7 June 2010 the appellant made a new homelessness application on the basis that Miss Nadia Touzani, his estranged partner, with whom the children were and still are living, had asked him to share care of their children, as she was no longer able to cope on her own due to her disabilities (disc degeneration on the spine, stabbing attacks in the back, agonising pain, knee stiffness, depression and panic attacks.)

After making inquiries the Council issued a decision on 20 July 2010 that they did not consider that the appellant was in priority need under s.189 of the 1996 Act. The basis of the decision was that the children were accommodated with their mother and that the appellant was not a person with whom a dependent child resided or might reasonably be expected to reside. In the decision letter the Housing and Homelessness Assessment Officer said:-

“I have concluded that whilst your involvement with the children is very significant, they are currently dependent on and have accommodation with their mother and I believe that you can continue to provide emotional and financial support for your children whilst they reside with their mother.

I understand that you would like a home in which your children can stay when they spend time with you. In considering whether a child can be said to live at two different addresses, a local authority can have regard to the general housing conditions in their area (R v Oxford CC, ex parte Doyle (1997)) I have considered this and in so doing have had regard to the general housing conditions in Kensington & Chelsea, where the demand for social housing far outweighs the supply. Having done so, I have considered the fact that both your children have accommodation available with their mother (Holmes-Moorhouse v London Borough of Richmond upon Thames (2009)) and do not therefore consider that you have a priority need on the grounds that you are a person with whom a dependent resides or might be expected to reside.

This Authority has no obligation to continue with its temporary duty to house you…”

On 13 August 2010 the appellant’s solicitors (Gillian Radford & Co) made a request on his behalf for a review of that decision under s.202 of the 1996 Act. They asked for a reasonable time to make further representations. Their letter made representations that the appellant was a person with whom dependent children could reasonably be expected to reside; that his accommodation would not allow him to have his children to stay; and that he had to look after them at his wife’s accommodation where they lived. The mother’s disabilities were relied on as an “exceptional circumstance” envisaged in Holmes-Moorhouse. She needed practical care and assistance in caring for the children. The appellant found it difficult to have to do that at her place.

On 16 August 2010 the Council replied to the appellant’s solicitors saying-

“I will arrange for a copy of your client’s homelessness file to be dispatched to you as requested in due course. I can confirm that we will give you a reasonable time in which to make representations in connection with the review following receipt of the file.

Should you wish to discuss the review process further please contact me on the telephone number set out below.”

The point has been taken that the Council’s letter was procedurally deficient, as it did not comply with regulation 6(2): it was not, as required, a notification of the appellant’s right to make representations himself, or through someone else. It was a notification of the right of the solicitors to make further representations in connection with the review requested by them on behalf of the appellant.

The appellant’s solicitors duly made further representations in letters dated 27 September, 4 November and 10 November 2010.

The review decision under s. 202 of the 1996 Act was notified in a comprehensive 8 page letter dated 22 November 2010. The Housing Review Officer (Ms Susan Yates) decided that the appellant did not have a priority need for housing assistance under the terms of Part VII of the 1996 Act. The letter concluded:-

“Whilst the Council sympathises with your situation and corporately promotes and supports the involvement of both parents, it does not have the resources to provide your children with accommodation when they are already adequately accommodated with their mother.

In summary, therefore, having considered your reasons for requesting a review, I do not consider that your case is an exceptional case as envisaged in R v Port Talbot BC ex parte Mc Carthy (1990) and the Holmes-Moorhouse judgement. I have considered the existing scale of homelessness, the relative level of overcrowding in this district, and the prevailing shortage of affordable housing in the Royal Borough of Kensington & Chelsea. I have concluded that you are not a person with whom dependent children reside or might reasonably be expected to reside.”

In an earlier part of the same letter the reviewer summarised the representations received and cited the case of Holmes-Moorhouse for the statement that “only in exceptional circumstances would it be reasonable to expect a child who has a home with one parent to be provided with another under Part VII of the Housing Act 1996”, adding that that was exactly what the Council were being asked to do in this case, “to provide a home for your children so that they can reside with you, when they already have accommodation with their mother in her social housing tenancy…”

The reviewer went on to consider whether the appellant’s circumstances “can be considered as exceptional” looking at examples given by the House of Lords in Holmes-Moorhouse where circumstances “might be considered as exceptional.” The reviewer commented that:-

“The crucial point is whether this Council should provide you and your children with further accommodation so that you can care for them in your ownhome. I have concluded that your children already have a home and I can see no reason that they need to be provided with another so that you can care for them…”

Whilst acknowledging difficulties in the relationship between the appellant and the mother, the reviewer concluded that they were both able to behave co-operatively in the interests of their children.

On the regulation 6(2) notification point the judge held that the letter of 16 August 2010 did not tell the appellant that he, or someone acting on his behalf, could make written representations in connection with the review. The judge went on to hold that, although that was a breach of the mandatory terms of the regulation,-

“…it was of no practical consequence. This is because the solicitor acting for the Appellant can be presumed to know the law in relation to alternative persons making representations and oral and written representations.”

The appellant’s solicitors made written representations and further representations on his behalf. The Council’s position was that, as the notice was given to the appellant’s solicitors, it was not necessary, as a matter of law, to notify them (or the appellant) of the right to make representations himself or through someone acting on his behalf. No point was taken by the appellant that notification had to be to the appellant personally rather than to his solicitors. The point taken was that the Council’s letter to the solicitors did not include statutory notification of the appellant’s right to make representations. The Council have served a respondent’s notice seeking to uphold the judge’s decision on the additional ground that there was in fact no breach of regulation 6(2).

On the point whether this was wrongly rejected as a case for priority need, the judge held that the Council had carefully considered the day-to-day problems of the mother and the daily care of the children at present and in the future and their needs. She concluded that the decision of the reviewer that the appellant did and could provide home care at the mother’s home was not unreasonable on the facts and was directly relevant to the issue whether the children could reasonably be expected to reside with him. The judge rejected the submission that either the wrong test had been applied or that the relevant considerations had not been taken into account.

The main submissions made by Mr Jonathan Manning for the appellant may be summarised as follows.

The submissions that the judge was wrong in refusing to quash the decision for breach of regulation 6(2), which she had found, on the basis that the breach had no practical effect, were very much the same as those made by Mr Manning in the associated appeal in the case of Maswaku. The thrust of the criticism was that the judge’s decision was wrong, because the Council’s letter to the appellant’s solicitors had not made notification of his right to make representations on the review, or to have someone acting on his behalf. The Review Regulations should be construed and applied strictly in the interests of legal certainty: Lambeth v. Johnston [2009] HLR 10. The Council had not complied with them. The fact that the appellant was legally represented did not discharge the Council’s procedural duty. Even if strict compliance was unnecessary where a person was legally represented, there was the problem of where the line was to be drawn between strict compliance and some lesser compliance that was considered to be sufficient.

On this point an application dated 6 March 2012 was made to amend the grounds of appeal to raise expressly a point of law, which has been pleaded but not included in the grounds of appeal, as to the correct approach to be adopted in the “two-homes” cases referred to in Holmes-Moorhouse and to contend that the wrong test had been applied to the issue of priority need by asking whether it was an “exceptional” case.

I would permit the amendment. We are informed that authorities and applicants alike require clarification on the approach in such cases and how “exceptionality”, as explained by Lord Hoffmann in that case, should be considered by local authorities.

There was also a challenge to the correctness of the conclusion of the reviewer, which was upheld by the judge, that the circumstances of the case were not exceptional and that the appellant could continue to care for his children at the former matrimonial home without the need to be provided with another home so that he could care for them. It was submitted that it was wrong to regard the fact that the appellant could provide care at his ex-partner’s accommodation as meaning that his circumstances were not exceptional. It was reasonable to expect his children to reside with him.

As indicated in the amended grounds, the appellant’s point was that the Council’s whole approach to the question of dependency was unlawful. The reviewing officer had applied the wrong test to the issue of priority need by asking whether he was an “exceptional” case and then saying that the statutory test was not met, as she did not consider the appellant’s case to be “exceptional.” Exceptionality is not the statutory criterion. Nor is it appropriate as a test, being an outcome rather than a guide to decision making. The test is, as the section says, whether it is reasonable to expect the children to reside with the appellant. The reviewing officer had not applied that test and had instead placed a gloss on it.

On the alternative argument that the case is in fact an exceptional one, it was also contended that the reviewing officer, who was upheld by the judge, was wrong to conclude that the circumstances of the case were not exceptional. That view was based on a finding that the appellant could continue to care for his children at the former family home. That approach was wrong : first, it had no regard to the fact that the appellant left the family home as a result of a breakdown in the relationship; secondly, it did not consider how provision of such care would be affected by the appellant becoming homeless; and, thirdly, it ignored whether the children could reasonably remain resident full time with their mother, who suffers from disabilities that render her unable to care for them. There were occasions when care could not be administered by her at all owing to hospitalisation. The undisputed reasonable aim of the appellant and his ex-partner was that the appellant would have the children four days out of the week, the interests of the children being best served by having care provided by both parents.

I agree with the general observations of Lord Neuberger in Holmes-Moorhouse on the interpretation of review decisions:-

“50.

…a benevolent approach should be adopted to the interpretation of review decisions. The court should not take too technical a view of the language used, or search for inconsistencies, or adopt a nit-picking approach, when confronted with an appeal against a review decision. That is not to say that the court should approve incomprehensible or misguided reasoning, but it should be realistic and practical in its approach to the interpretation of review decisions.

51.

Further, as the present case shows, a decision can often survive despite the existence of an error in the reasoning advanced to support it. For example, sometimes the error is irrelevant to the outcome; sometimes it is too trivial (objectively, or in the eyes of the decision-maker) to affect the outcome; sometimes it is obvious from the rest of the reasoning, read as a whole, that the decision would have been the same notwithstanding the error; sometimes there is more than one reason for the conclusion, and the error only undermines one of the reasons; sometimes, the decision is the only one which could rationally have been reached. In all such cases, the error should not (save, perhaps, in wholly exceptional circumstances) justify the decision being quashed.”

Following that good sense approach I have reached the following conclusions on the two grounds of appeal.

Regulation 6(2)

Applying the law, as discussed and explained in Maswaku, there was no error of law in the notification procedure followed by the Council. The duty to notify was discharged. The point is an empty one.

At all relevant times solicitors were acting for the appellant in connection with his application and the review. I can well understand why, in those circumstances, the judge regarded any breach of the regulation to notify the appellant’s right to make representations as technical, inconsequential and not prejudicial to the appellant’s interests. The solicitors acting on his behalf in making his representations to the Council would have been aware that the appellant, or someone acting on his behalf, could make representations, if that is what the appellant wanted to do in addition to using the services of solicitors experienced in housing matters. They could have advised him accordingly. Whether they actually did so or not does not matter, as the self-evident purpose of imposing the duty to notify is not to inform an applicant who already had professional legal advisers about the right to make representations, but to protect those who did not have professional advisers, so that they can make representations themselves, or get someone else to do it for them. Even if the duty is mandatory and even if it had been breached because the words “you or someone on your behalf” in relation to the making of representations were omitted from the Council’s letter, it would not follow that the Council’s decision was a nullity or must be quashed.

I am also persuaded by the Council’s additional ground for upholding the judge’s conclusion on the regulation 6(2) point that there was, in fact, no breach of the notification duty imposed by the regulation. Sensibly understood, the letter of 16 August that was sent by the Council to the solicitors acting on his behalf discharged the duty. The letter informed them that they would be allowed a reasonable time in which to make representations for him. The appellant was plainly being notified, through his solicitors, that representations could be made and it was obvious that he could choose either to make them himself or by someone acting on his behalf, in this case his solicitors. In brief, notification was given, via the solicitors, of the right to make representations and the appellant chose to make representations through his solicitors. There is no suggestion that he personally, or that someone else on his behalf, would have made further or different representations on the review.

Priority need misdirection

On the criteria for the priority need point, I agree with Mr Manning that the proper test to apply is that enacted in s.189(1)(b) of the 1996 Act. The legislation does not expressly or impliedly lay down a criterion of exceptional circumstances. The fact that it might be unusual for a certain kind of case, such as one of the two-home kind, to succeed in securing priority assistance, cannot change the nature of the statutory test.

The statutory question was whether it was reasonable to expect the appellant’s children to reside with him also, even though they had a home with his ex-partner. That question was for the decision of the Council, subject to review and to appeal on a point of law. In the absence of an error of law, neither the judge in the county court on the first appeal had, nor the judges in this court on a second appeal have, any power to interfere with the Council’s assessment of the appellant’s need for priority housing.

I am satisfied that no point of law arises from the Council’s assessment of the appellant’s priority housing need, or from the decision of the reviewing officer as a result of misinterpretation, or misapplication, of the law and I am satisfied that the outcome was not perverse or Wednesbury unreasonable.

In their original decision the Council made no reference to exceptional circumstances or to whether it was an exceptional case. Further, reading the review decision as a whole, the reviewer was plainly alert to the correct wording of the statutory test in s.189(1)(b) and the need to apply it in reaching a decision on the review. The use of “exceptional” in the decision was in the context of the reference to Holmes-Moorhouse,which had been cited to the reviewer in the solicitors’ representations on the review. In Lord Hoffmann’s speech the reference to “exceptional” was plainly not as a substitute test or as a gloss on the statutory provision. It was simply an observation, arising out of a statement in the Code of Guidance, on the probable outcome or result of applying the statutory test to applications for priority need where the fact was that the children were living with one of the separated parents. As Lord Neuberger has noted in a different context, “exceptionality” is an outcome of a decision rather than a guide to making a decision: see Manchester CC v. Pinnock [2010] UKSC 45; [2011] 2 AC 104 at [51].

In my judgment, the references in the review decision to the circumstances or to the case not being “exceptional” can only be properly understood when read in context of the decision as a whole. I would be inclined to agree with Mr Manning that, taken in isolation and read out of context, some passages in the review decision might appear to be applying an exceptionality test. However, when those passages are read in the context of the whole decision, it is clear to the reasonable reader that there was no misdirection and that the reviewer was applying the statutory test of reasonable expectation of residence. The test was applied in the light of the judicial observations in Holmes-Moorhouse on the sort of situation that might, or might not, fall within the statutory provisions. The references to “exceptional” in the review decision were no more the substitution of a different test by the Council in its decision-making process than they were a judicial substitution for the statutory test when used by Lord Hoffmann in his comments on the situations covered by s.189(1)(b).

Although it is unnecessary to reach a decision on the alternative argument about the outcome of the “exceptionality” approach, it would be almost impossible to persuade a court that the Council’s assessment that this was not an exceptional case was perverse or was Wednesbury unreasonable.

I would grant permission to appeal, but dismiss the appeal. The appellant has failed to establish that there was any breach of duty by the Council in failing to give correct notification of his right to make representations on the review, or that there was any legal misdirection as to the criterion for determining priority housing need under s189(1)(b) of the 1996 Act.

I agree

I also agree.