Bantamagbari, R (on the application of) v Westminster

MR JUSTICE WILSON: The claimant seeks judicial review of a decision of the City of Westminster dated 27 May 2002 relating to his homelessness. Westminster opposes his claim. At Westminster's request the London Borough of Southwark has been joined as a party. Southwark supports his claim.

Westminster's allegedly unlawful decision dated 27 May 2002 was reactive to decisions taken by Southwark on 22nd January 2002. On that day, 22 January, the claimant presented himself at Southwark's Homeless Persons Unit and alleged that he was homeless. Southwark thereby became under a duty, pursuant to section 184 of the Housing Act 1996, to enquire into his homelessness. It enquired into it there and then. One of its officers took a history from him and completed a form on the basis of what he said. The officer looked at certain documents which the claimant provided. As a result of that exercise, Southwark reached two conclusions. Its first conclusion was reached under section 193(1) of the Act of 1996. That provides:

Southwark's second decision was reached under section 198 of the Act. That provides in subsection (1):

The legal result of the reference by Southwark to Westminster of the claimant under section 198 of the Act is collected from section 200(4) of the Act, which reads as follows:

Westminster did not even acknowledge Southwark's letter until 2 May 2002. Thereupon Westminster set about examining the reference. It was puzzled by it. One of the documents which Southwark had enclosed with its letter dated 22 January was a notice to quit in relation to the premises which the claimant had been occupying immediately prior to 22 January. It was a notice to quit issued to him by a landlord called "Westminster Housing Co-operative." When Westminster studied the notice to quit, it saw that it bore the date 13 December 2001 and that it was expressed to take effect on 21 January 2002. Then Westminster noted the reason set out in the notice for why it was being served:

Westminster considered that the notice to quit afforded grounds which might or should have led Southwark to conclude that this claimant was homeless intentionally. In these proceedings two other documents have been disclosed which are interesting in this respect. The first is the form which, as I have explained, was completed by Southwark's officer as he interviewed the claimant on 22 January. In that part of the form which relates to intentionality the officer left the spaces for answer or comment entirely blank. The second is a private memorandum which he made to himself. It read: "Intentionality: to make further enquiries."

It is common ground that the scheme of the Act is that, when a reference is made under section 198, it is the notifying authority to which falls the task of deciding whether the criteria for a duty under section 193 are fulfilled (R v Slough Borough Council, ex parte London Borough of Ealing [1981] QB 8O1). Westminster accepted that it was not for it to reach a decision on the criteria, and in particular on the question of intentionality. But, as I have said, it was perplexed as to how Southwark could be other than satisfied that the claimant had become homeless intentionally. So Westminster refused to accept the reference. This is the decision which is dated 27 May 2002, the lawfulness of which is in issue in these proceedings. On that date it wrote communicating their decision both to the claimant and to Southwark. To the claimant it said:

It is clear that, whatever the extent of its legal duty in such circumstances, Southwark made further enquiries into the claimant's eligibility under section 193. It saw the claimant again on 10 June 2002. Either at that interview or through the post on a date at around that time it received two letters, one being from the claimant's landlord, namely the Co-operative, to which I will turn later.

The result of its further inquiries was that Southwark was confirmed in its opinion that it could not be satisfied that this claimant had become homeless intentionally. But Southwark's letter to Westminster was written in unfortunate terms. Dated 10 June 2002, it said:

The letter was unfortunate because it missed the point. Westminster had not said that, if there was a duty under section 193, there had been an erroneous exercise of discretion under section 198 by reference to local connections. And Westminster was soon specifically to accept, as today it continues to accept, that, if a local authority has a duty to this claimant under section 193, it is appropriate for it, Westminster, rather than Southwark to discharge it under section 198. Westminster's complaint was that Southwark's enquiry into whether the duty to the claimant under section 193 arose was flawed. Thus Westminster's response to Southwark's letter dated 10 June was on 14 June to send to Southwark a further copy of its letter dated 27 May and to repeat:

In the following two months there was a sorry impasse. Westminster was saying to Southwark that the latter had not reached a proper decision, in particular upon intentionality. Southwark was not replying to Westminster. The claimant, now represented by solicitors, was saying to Westminster that it had duties under section 200 which it was wrongfully repudiating. Westminster was not replying to what the solicitors were saying, either at all or at least otherwise than by bare acknowledgement.

Thus on 21 August 2002 the claimant issued the application against Westminster for judicial review. Thereafter Westminster continued to press Southwark to address its concerns about the decision under section 193. To its pressure Westminster received precious little response from Southwark. One response was received by Westminster; and is said to be significant. The response is said to be recorded in an e-mail letter sent on 17 January 2003 by an officer at Westminster to an officer at Southwark, ostensibly recording a telephone conversation that the writer at Westminster had had with another officer at Southwark. The letter says:

Mr Braham, who represents Westminster today, contends that it is very significant that, according to that letter, Southwark was in January 2003 accepting the need for a fresh decision under section 193. But was Southwark indeed accepting the need for a fresh decision? Did Mr Khan say what the officer at Westminster was alleging that he had said? If Mr Khan said so, was he authorised to say so? All that exists in the clip of written communications between the two authorities is a letter from the legal department of Southwark dated 31 January 2003, saying:

At all events it appears that the claimant did not attend for the further interview at Southwark's premises; that Southwark offered him no further appointment; and that never thereafter has it proposed to conduct any further investigation into his case.

The joinder of Southwark as a party in these proceedings was directed at Westminster's request by Lightman J on 6 March 2003. He directed that Southwark should file evidence as to its investigation of the claimant's entitlement under section 193. The evidence that Southwark filed took the form of a statement by Ms Pass, the senior case worker who had approved the decisions taken on 22 January 2002. She says in her statement that, like the worker who saw the claimant across the desk that day, she was satisfied on that date that the criteria set by section 193, including in relation to intentionality, were satisfied. She also deals with the further consideration given by Southwark to the claimant's case early in June 2002, including to the letter from his landlord which it received at that time. It is dated 31 May 2002 and said:

Thus we arrive at the situation today. The claimant alleges that Westminster's repudiation dated 27 May 2002 of its obligation to him is unlawful. He alleges that, under section 204, Westminster has duties to accommodate him which it has unlawfully failed to discharge. Westminster's answer is to the effect that Southwark's decision dated 22 January 2002 that a duty to the claimant arose under section 193, and in particular that it, Southwark, was not satisfied that the claimant was homeless intentionally, such a decision being an essential precursor to its reference under section 198, is invalid or at least incomplete.

Westminster says that even today there remain substantial questions for Southwark to address. How, asks Mr Braham, can the terms of the notice to quit served upon the claimant stand with the landlord's letter dated 31 May 2002, to the effect that he, the claimant, was the victim rather than the perpetrator of nuisance and/or harassment? The very fact, says Mr Braham, that in January 2003 Southwark proposed again to interview the claimant is recognition that further enquiries fall to be made.

To Westminster's answer the reply of the claimant, and indeed of Southwark, is twofold. They say first that Westminster is in effect seeking a judicial review of the decision as to intentionality reached by Southwark on 22 January 2002; but that it is hopelessly out of time for any application for judicial review of that decision to be made. The decision was reached -- and for that matter communicated -- to Westminster on 22 January 2002. Within the relevant three month period Westminster did not even acknowledge it, let alone begin substantively to address it. Its queries about it were raised only on 27 May 2002. If, ask the claimant and Southwark, it can be said that Southwark failed to give Westminster a satisfactory response to its enquiries after May 2002, why did Westminster not at least attempt to persuade the court to extend the time for permitting it to seek judicial review of the decision? Even today, it is argued, when at last the claimant's claim falls for substantive disposal, no properly constituted attempt has been made by Westminster to declare to be invalid the decision as to intentionality which is part of the foundation for the reference under section 198. Why has that claim not properly been made by Westminster, asks Mr Pettit and Miss Bretherton, rhetorically? Suggested answer: because it is clear and has at least since March 2003 been clear that such a claim could never succeed.

Their second response to Westminster's answer is to say that, once Southwark in January 2002 reached a positive decision in favour of the claimant under section 193, including referable to intentionality, there is now no power in Southwark, in the absence of fraud or a change of circumstances, to go back on such a decision. Authority for that proposition is collected from the judgment of Moses J in R v Brent Borough Council, ex parte Muhammad Sadiq CO/544/2000, which follows the decision of Latham J (as he then was) in R v Lambeth London Borough Council, ex parte Miah [1994] 27 HLR 21. Miss Bretherton says that if, which Southwark, her client, has never conceded, its officer, Mr Khan, did in January 2003 say that it would be reviewing the claimant's case, he, Mr Khan, had no authority to say so and indeed that it was not legally open to Southwark to do so.

To each of those two points made in reply, Mr Braham brings a rejoinder. In relation to the first point, namely the alleged need for judicial review, Mr Braham relies in particular upon dicta of Lord Donaldson MR in R v Newham London Borough Council, ex parte Tower Hamlets London Borough Council [1991] 1 WLR, 1032. That court was addressing the analogous provisions for reference of a person's homelessness by one local authority to another under the Housing Act 1985. At 1043H to 1044A Lord Donaldson said:

I do not accept Mr Braham's construction of that passage as support for a conclusion that, even in the absence of judicial review proceedings in which the decision of the notifying authority is actually quashed, the notified authority is at liberty to ignore the decision and the consequential reference under what is now section 198, provided only that the decision is and could if necessary be demonstrated to be unlawful. That, as Mr Pettit has submitted, would lead to anarchy. It is to be noted that in that case Lord Donaldson was giving judgment on an appeal referable to proceedings for judicial review brought by a notified local authority complaining of the unlawfulness of the decision of the notifying local authority.

To the second point made by the claimant and Southwark, namely the alleged inability of a local authority to reverse any decision on homelessness made in favour of a claimant, Mr Braham relies on written Guidelines for local authorities in relation to referrals of homeless applicants, as agreed between all local authorities pursuant to the encouragement given by section 198(5) of the Act of 1996. That subsection provides for, and encourages agreement as to, the proper despatch of issues between local authorities as to whether "conditions for referral" by reference to local connections are satisfied. As I have explained, the issue between the two local authorities in the present case is not whether local connections justify referral of the claimant to Westminster; it is as to the prior question in relation to the satisfaction of the criteria set in section 193. But the middle sentence of paragraph 5.4 of the Guidelines does seem to address that prior question; and Mr Braham places reliance upon it. Paragraph 5.4 reads:

My conclusions upon this application may at last be simply stated.

In my view Westminster is seeking by the back door to achieve what it cannot achieve by the front door, namely to cause this court judicially to review Southwark's decision dated 22 January 2002. Westminster's delay between January and May 2002, and indeed between June 2002 to date, would undoubtedly preclude the grant of any extension of time for the bringing of such proceedings.

Second, even were judicial review proceedings to be entertained by the court, there could at any rate now be only one answer to them, namely that, in the exercise of the court's discretion, it would refuse to declare Southwark's decision invalid. I say that because, whatever material Southwark did or did not have on 22 January 2002 to justify its conclusion that it was not satisfied that the claimant was intentionally homeless, surely by June 2002 it had ample material to reach that conclusion. Indeed, in the light of the letter from the landlord dated 31 May 2002, no one could in my view rationally be satisfied that the claimant was intentionally homeless. Mr Braham has conceded that, although Westminster has had that document in its possession since about 25 March 2003, it has not seen fit to put to the landlord such further questions as it is said to raise.

Accordingly Southwark's decision as to intentionality is valid and is a lawful foundation for its reference of the claimant to Westminster. Westminster has acted unlawfully in refusing to accept responsibility for the claimant under the Act of 1996.

MR PETTIT: The claim seeks an order that Westminster be obliged to deal with my client lawfully.

MR JUSTICE WILSON: Can we look at the wording of the order which you would have me make?

MR PETTIT: Page 3 of the bundle:

MR JUSTICE WILSON: I doubt whether Mr Braham can, in the light of my judgment, oppose an order in the terms of paragraph 6. Let me check with him.

MR BRAHAM: I cannot oppose such an order.

MR JUSTICE WILSON: Mrs Pringle will draft the order by reference to the wording in paragraph 6 of the claim.

MR PETTIT: The claimant would claim costs against the City of Westminster in this claim.

MR JUSTICE WILSON: What do you want to say about that, Mr Braham?

MR BRAHAM: The only possible way of determining the validity of anything the claimant said was put in Westminster's hands as late as 25th March of this year, all because Southwark failed to provide the material that had been in their possession since June of last year. That is the crucial time. There was a question put by Westminster to Southwark which your Lordship said was not answered. In my submission, in those circumstances Southwark ought to be responsible for the costs of the claimant and of Westminster from that time.

MR JUSTICE WILSON: Does it not break down into: first, the claimant seeking costs against you, which I should have thought you might be in a difficult position to resist as between the two of you; and then you turning round and asking for some contribution for your costs against Southwark; and then apparently Miss Bretherton getting up and asking for a contribution for her costs against you? I think that is right. The claimant's costs will be paid by the defendant. If you are publicly funded, Mr Pettit, there will in any event be a detailed assessment of your costs. Mr Braham, we get on to your claim for costs, which will include the costs you owe to the claimant, against Southwark.

MR BRAHAM: Yes. We would not have had to incur the costs if we had received the information in Southwark's hands in June when they got it. We made an analysis of the matter along the lines of your judgment. In any event, we have been put to all the additional costs of chasing out of Southwark the answer that they gave at the end of March, including the bv vb necessity of joining them to these proceedings.

MR JUSTICE WILSON: Is there any impediment to your claiming costs of the proceedings overall against somebody who has only been a party for the last two months thereof?

MR BRAHAM: That ought not to be so. If that were so, Southwark would be able to refuse to co-operate with impunity.

MR JUSTICE WILSON: Miss Bretherton, there is a claim for costs against you. Are you resisting that? If you are resisting it, are you articulating a claim by Southwark against Westminster or not?

MISS BRETHERTON: It is extraordinary that the defendant in this action is claiming costs against Southwark. The reasons why it is extraordinary are as follows. First of all, these proceedings have continued until the summer of last year. As you have said, my clients have not had the option of taking any part of them until very recently. Moreover, on the basis of your judgment, the claim issued by the claimant is one to which there is no defence. The only route of defence would have been for Westminster to have issued proceedings against Southwark. If Westminster had issued proceedings against Southwark on the basis that Southwark was failing to respond to correspondence and wanted to challenge the decision, potentially there may have been difficulty with regard to the early part of those costs unless and until the witness statements were produced. To suggest that, in proceedings in which there has been no valid defence raised by Westminster that Southwark should be responsible for the costs, is astounding. The position is that, once Southwark had reached the decision on the basis of the judgment of Moses J, they could not do what Westminster were asking them to do. They could not review their decision. There was nothing Southwark could do about that decision which it was shown was correct in any event. Westminster have attempted to use Southwark as a defence to proceedings to which, according to your judgment, there is no defence. Moreover, Westminster have been wholly irresponsible in even applying to join Southwark as a party. They were warned of the costs consequences by Lightman J at the time the application to join was made. It was a proper warning, a serious warning. The reason for the warning was clear. You do not, as a basic principle of litigation, apply to join someone as a party unless you want something from them. It is basic to seek a form of relief. Westminster tried to stop him obtaining that order. Westminster, since the time that Southwark have been joined, have applied for no relief against my client. It is a matter that has been raised in correspondence. My clients may have been prepared to let the matter go, no order up to the date the witness statement was filed, even though it is not accepted that there was no legal basis for suggesting that Southwark were involved. Would you look at the letter at page 147 of the bundle E. It is the first time this point was made. It is a point that has been raised again and again. I asked for it to be raised again and again. I do not understand why Southwark are here. What my instructing solicitor says is this. We refer to the evidence contained in Sandra Pass's witness statement: "We now invite skeleton arguments." We refer to the first skeleton argument which today's judgment has proved is founded correctly in law as interpreted by Mr Pettit who made this application, in which he says that the appropriate course for Westminster is not to bother joining Southwark into those proceedings but rather to attempt a permission application out of time. The purpose of permission applications are to filter out unmeritorious claims and to filter out potentially cases where there simply is no relief sought. If Southwark had been faced with a permission claim, framed in terms of one where no relief was sought, in addition to the delay point and in addition to the fact that there is no jurisdiction under the legislation, this court would not have been sympathetic to such an application as being one that took up court time. The position is that, if we move down this letter, these points were raised:

MR BRAHAM: The basic point was, as I understood your judgment, that you did not say that the initial questions that were in Westminster's mind as to the application were inappropriate. You found that there was a further investigation conducted in June which produced one letter in particular which you thought should be decisive. Westminster could have been provided with those materials in June, and asked to be provided with them and asked over and over again over the ensuing months. Quite inappropriately Southwark withheld that information. At the time that my learned friend was given permission to bring judicial review proceedings Jackson J directed that Southwark be informed, as they were. That should at least have jogged their memory as to the materials that they had which were highly relevant to the case. They have wasted time and costs in not producing that material, and there is no reason for anyone to think that, if they had not been joined to the proceedings, they would in some circumstances have produced it. The situation between the claimant and Westminster would be hopelessly distorted by the absence of this information. It would be impossible for Westminster to reach a proper view of the claimant's claim without that information. In my submission, it is only proper that Southwark's delay ought to be reflected in a costs contribution to Westminster.

MR JUSTICE WILSON: Westminster's costs which, as a result of an order I made 15 minutes ago, includes the claimant's costs (it having been ordered to pay the claimant his costs) are sought to be cast upon Southwark. For its part Southwark seeks an order against Westminster. The position, when one stands back, is that Westminster sought to oppose these proceedings by other than, as I have held, the only permissible route of cross-application for judicial review of Southwark's decision of 22 January 2002. Its position in the proceedings in relation to the claimant has always been extremely weak; and it has failed in its defence. It seeks costs from Southwark even though Southwark has been a party to the proceedings only for the last two months of their life and even though no substantive relief has been sought against Southwark.

I appreciate that costs can, exceptionally, be awarded against those who are not parties to proceedings and can be awarded to those who are parties to the proceedings only for a limited period of time. But, in the light of the essentially invalid stance adopted by Westminster, I do not consider that it is appropriate to cast any of their cost responsibilities onto Southwark.

What about casting Southwark's costs onto Westminster? There is no doubt that the understandable perplexities caused to Westminster by the decision dated 22 January 2002 could have been much earlier explained and dispelled by Southwark. Failure to deal properly with that important first substantive letter by Westminster to Southwark dated 27 May 2002 and the extraordinary failure thereafter to address Westminster's letters, sent both prior to and after the launch of the claimant's proceedings, have undoubtedly caused, as a matter of fact, these proceedings to have remained unresolved.

Although I have found as a matter of law that, even by late 2002 it was too late for Westminster to take the only proceedings which it could take in order to defend itself against responsibility for the claimant, namely judicial review proceedings, I did add that, even if judicial review proceedings could have been allowed to be pursued, it may now been seen that they would fail. I was there referring to the very important letter from the landlord dated 31 May 2002, inexplicably not passed on by Southwark to Westminster, nor even summarised in a letter by Southwark to Westminster, until the attachment to Miss Pass's statement was served upon Westminster on about 25 March 2003.

With her back to the wall to that extent, Miss Bretherton says as a fallback, that, at any rate her costs after the service of that witness statement and its important attachments should be ordered against Westminster. But I do feel that, regardless for the moment of strict legalities, Southwark's largely unexplained and unmitigated failure to address Westminster's queries during the last year have contributed to this festering litigation; and that it was right for Southwark to be called upon, at its own expense, to answer to the court, as best it could, for that substantial default. It would stick in my throat, in the light of this history, to make any order for costs in favour of Southwark against Westminster. I decline to do so. There will be no order as to costs between either of the local authorities.