Griffin, R (on the application of) v London Borough of Southwark

In August 2002, Kelly Griffin (“ Ms Griffin”) together with her then partner Mr George Gibson made a joint homelessness application (“the 2002 application”) pursuant to section 184 of the Housing Act 1996 as amended (“the 1996 Act”) to the London Borough of Southwark (“Southwark”) seeking accommodation for both of them and also for their child George, who was born on the 26July 2002. Southwark accepted a “full” duty to provide accommodation and it initially in August 2002 provided Ms Griffin, George Gibson and their son with temporary accommodation, but they applied for permanent accommodation. They were made an offer of accommodation in a co-operative but the other occupants rejected Ms Griffin and Mr. Gibson.

On 10 December 2002, Southwark then made an offer to Ms Griffin and to George Gibson of accommodation on the Aylesbury Estate. This offer of accommodation was refused because of concerns about safety on the estate. Ms Griffin had been assaulted there a few years earlier and she believed that she would be attacked there again if she went to live there. In a witness statement, Sandra Pass, a Casework Team Leader in the Homeless Person’s Unit of Southwark, explained that Ms. Griffin had not previously stated that she did not wish to live on the Aylesbury Estate and that her temporary accommodation was “quite near to the Aylesbury Estate”. This evidence has not been challenged by Ms Griffin.

An appeal was made against the offer of accommodation by Ms Griffin, who explained that she had been previously attacked on the Aylesbury Estate but on 31 December 2002, an Appeals Panel of Southwark rejected her appeal. By a letter dated 17 January 2003, Southwark explained to Mr. Gibson that it had discharged its duty by offering accommodation, which had been rejected. On 21 January 2003, Ms Griffin made an application for review to Southwark of its decision that it had discharged its duty but a review team of Southwark rejected this application on 13 March 2003 although Ms Griffin did not receive the decision until some time in April 2004. The claimant did not challenge that decision in the County Court.

Possession proceedings were meanwhile brought by Southwark against Ms Griffin in respect of the temporary accommodation occupied by her. A possession order was made against her and she had to leave this accommodation on 7 February 2004. Thereafter, she stayed with friends on a temporary basis but she had to keep moving on. She latterly stayed for a short while with her son’s grandmother but she ultimately also had to leave that accommodation

On 13 May 2004, Ms Griffin’s present solicitors wrote to Southwark explaining why Ms Griffin’s circumstances had changed and asking that she be provided with temporary accommodation while a fresh homelessness application by Ms Griffin was being considered. On 19 May 2004, Southwark informed Ms Griffin’s solicitors that they would accept a further application from Ms Griffin who duly made a fresh homelessness application to Southwark (“ the 2004 application”). Ms Griffin was eventually provided with temporary accommodation.

By letter dated 10 June 2004 (“ the decision letter”), Southwark notified Ms Griffin that although she was homeless, in priority need and not intentionally homeless, the 2004 application still had to be rejected as Southwark had already previously discharged its duty under the 1996 Act because first she had previously been offered accommodation on the Aylesbury Estate and second she had not subsequently “secured any secured accommodation before the fresh approach for assistance”. It is this decision not to consider the 2004 application, which is the subject of the challenge to the decision letter on this application. Ms Pass has explained in the witness statement to which I have already referred in paragraph 2 above that there had been no changes in Ms Griffin’s requirements since the 2002 application or in her position since that time; she pointed out that Ms. Griffin had parted company with Mr. Gibson before she had viewed the accommodation on the Aylesbury Estate and that Ms Griffin had not been in settled accommodation since the 2002 application. None of these allegations have been disputed.

The consequence of Southwark’s decision in the decision letter that it could not consider Ms Griffin’s 2004 application is that Ms Griffin was thereby deprived of a decision under section 184 of the 1996 Act, which if not to Ms Griffin’s liking, would itself have been subject to a review and to an appeal. By the present application, Ms Griffin is seeking with leave of Collins J. first to quash the decision of Southwark contained in the decision letter that it could not consider the 2004 application and second to obtain an order that Southwark now considers substantively her 2004 application.

The basis of Ms Griffin’s challenge to the decision letter is that the decision of Southwark not to consider Ms Griffin’s 2004 application is based on an error of law because Southwark failed to realise that the 2004 application was not based on identical facts to the 2002 application for the reason, which I will explain in paragraph 25 below. Mr Edward Fitzpatrick for Ms Griffin conceded first, that he could not contend the decision was perverse and second, that he could rely on any of the erroneous statements made by Southwark to found a claim based on a legitimate expectation or any other matter. It is convenient to record at this stage some of these very regrettable errors of Southwark in its dealings with Ms. Griffin.

The first of these errors was the statement made to Ms Griffin’s solicitors by a representative of Southwark on 19 May 2004 that Southwark would consider a further application from Ms Griffin. The next error is to be found in the decision letter of 10 June 2004 in which Southwark referred to Ms Griffin’s right to obtain a review of the decision not to accept the 2004 application under section 202 of the 1996 Act. Ms. Griffin duly made a request for a review before Southwark later informed Ms Griffin correctly in a letter dated 16 July 2004 that the decision under challenge was not a decision susceptible to review, as it did not fall within any of the categories specified under section 202(1) of the 1996 Act. Finally, in a letter dated 26 July 2004 the Legal Department of Southwark stated that they would accept a further homelessness application from Ms Griffin and that they would then provide a further decision. Subsequently on 27 July 2004 when Ms Griffin attended for an interview at the Homeless Person Unit when she was told that Southwark had discharged its duty towards her and so it would not accept from her a further homelessness application based on a change of circumstances. In other words, the final stance of Southwark was that of relying on the decision letter to assert that it could not consider the 2004 application and that has prompted the present application.

Section 184 of the 1996 Act states insofar as is material to the present proceedings that:

“(1)

If the local housing authority have reason to believe that an applicant may be homeless or threatened with homelessness, they shall make such enquiries as are necessary to satisfy themselves –

(a)

whether he is eligible for assistance, and

(b)

If so, whether any duty, and if so what duty, is owed to him under the following provisions of this Part

…

(3)

On completing their inquiries, the authority shall notify the applicant of their decision and, so far as any issue is decided against his interests, inform him of the reasons for their decision.

…

(5)

A notice under subsection (3).. shall also inform the applicant of his right to request a review of the decision and of the time within which such a request must be made”

Section 193 of the 1996 Act provides so far as is material to this application that:

“(1)

This section applies where the local housing authority are satisfied that an applicant is homeless, eligible for assistance and has a priority need, and are not satisfied that he became homeless intentionally

…

(3)

The authority are subject to the duty under this section until it ceases by virtue of any of the following provisions of this section

…

(5)

The local housing authority shall cease to be subject to the duty under this section if the applicant, having been informed by the authority of the possible consequence of refusal and of his right to request a review of the suitability of the accommodation, refuses an offer of accommodation which the authority are satisfied is suitable for him and the authority notify him that they regard themselves as having discharged their duty under this section”

As I have explained, a discharge letter was sent by Southwark dated 17 January 2003 to Mr Gibson. Section 193 (9) of the 1996 Act also states that:

“A person who ceases to be owed the duty under this section may make a fresh application to the authority for accommodation or assistance in obtaining accommodation”

It has not been submitted that section 193(9) of the 1996 Act required Southwark to consider Ms. Griffin’s 2004 application

As I have explained, the issue on this application centres on the circumstances on which a local authority is absolved from an obligation to carry out inquiries into a fresh homeless claim that an applicant is homeless, on the grounds that it had previously dealt with a homeless application from the same applicant. The 1996 Act does not state that there is any limit on the number of homeless applications, which an applicant can make. It is, however, common ground between the parties that an applicant cannot make an unlimited number of applications based on the same facts in support of the contention that he or she is homeless.

In an analogous situation, Woolf J, as he then was, explained in Delahaye v Oswestry Borough Council (The Times 29 July 1980), that it could not have been the intention of Parliament that a similar statute should be used by someone, who is not entitled to permanent accommodation to obtain the continuous use of temporary accommodation by means of successive applications.

The issue between the parties relates to the criterion for determining the circumstances in which a local authority is obliged to consider a further homelessness application under section 184 of the 1996 Act after it had refused an earlier one from the same person. There are two authorities, which were both decided within a fortnight of each other in July 1998 when the Court of Appeal and the House of Lords considered in two different cases, the circumstances in which a local authority could refuse to consider a second homelessness application from an applicant. It appears that neither the Court of Appeal nor the House of Lords was aware that the other was examining the same problem because neither appellate body referred to the actual or to the prospective decision of the other. Indeed, that might explain why they adopted different approaches and different reasoning.

On 9 July 1998, the Court of Appeal in R v London of Borough of Southwark ex parte Campisi (1998) 31 HLR 560) explained that:

(1)

“Clearly the mere assertion that an applicant’s claim ought to be considered cannot impose upon the local authority the onerous duty of making inquiries and considering the case afresh” (per Schiemann LJ at page 563 with whom Gibson and Mummery LJJ agreed);

(2)

“It is common ground that a fresh claim attracts all the substantive and procedural consequences of an initial claim whereas a repetitious claim does not” (ibid.);

(3)

“ In my judgment, the local authority is entitled to proceed by starting with the assumption that the first decision as to suitability was correct and then go on to consider whether, disregarding material which is insignificant or incredible or which was available to the applicant at the time of the determination of his first claim, the new material placed in front of the local authority gives reason to believe that the decision as to homelessness ought to be reversed. This process inevitably involves making a judgment as to the significance and credibility of the new material” (ibid);

(4)“…a local authority’s decision that there has been no material change in circumstances can only be challenged on Wednesbury grounds.”(ibid).

On 23 July 1998, the House of Lords in R v London Borough of Harrow ex parte Fahia [1998] 1 WLR 1396 had to resolve a similar problem as the local authority in that case had submitted first that a person making a second application had to demonstrate a change of circumstance which might lead to a second application being successful and second that it was for the local authority to decide whether that test has to be satisfied. Thus, it was contended by the local authority in that case that the applicant could not point to any new circumstance, which could lead to the conclusion that she was not intentionally homeless so that the local authority was absolved from the obligation to repeat the whole process of considering the fresh application.

After considering that submission, Lord Browne-Wilkinson said in a speech with which the other members of the Appellant Committee agreed that: -

“I have sympathy with Harrow’s case on this point but I am unable to extract from the statutory language any sufficient justification for the suggested short cut. Under [the predecessor of section 184] the statutory duty to make enquiries arises if (a) a person applies for accommodation (b) “the authority have reason to believe he may be homeless or threatened with homelessness”. It is established that requirement (a) is not satisfied if an application purports to be made by a person who lacks the capacity to do so…Moreover when an applicant has been given temporary accommodation under [the predecessor to section 184] and is then found to be intentionally homeless he cannot make a further application based on exactly the same facts as his earlier application”. (Page 1402 B)

Lord Browne-Wilkinson then cited the case of Delahaye to which I have already referred in paragraph 15 above, before continuing by saying that: -

“but those are very special cases where it is possible to say there is no application before the local authority and therefore the mandatory duty imposed by [the statutory predecessor to section 184] has not arisen. But in the present case there is no doubt that where [the homeless applicant] made her further application for accommodation she was threatened with homelessness. Moreover in my judgment her application could not be treated as identical with the earlier 1994 application. She was relying on her eviction from the guesthouse which, for one year, she had been occupying as the direct licensee of the guesthouse proprietor, paying the rate for that accommodation. She was reimbursed the amount of the rent by way of housing benefit but the fact was that she had occupied the premises as licensee for a year. It is impossible to say that there has been no relevant change in circumstances at all.”(Page 1402D to E)

Thus, the House of Lords set a lower threshold than the Court of Appeal for determining whether a local authority was obliged to consider a section 184 fresh application. While Mr. Fitzpatrick submitted that Fahia sets out the relevant principles and thereby sets a lower threshold for applicants, Mr. Broatch submitted that aspects of the Campisi test should be applied. At my request, counsel helpfully carried out research to determine whether there was any previous decision in which it had been determined which of those two 1998 cases it should follow.

They could only find one case in which there has been any attempt to decide which of those authorities should be regarded as authoritative. In R (Fatima Jeylani) v London Borough of Waltham Forest ([2002] EWHC 487 (Admin)), Judge Wilkie QC, as he then was, while sitting as a Deputy Judge of the Queen’s Bench Division, implicitly accepted perhaps without argument and perhaps by agreement that a court should follow the approach in Fahia. In that case, a declaration was granted requiring the local authority to consider the further homelessness application after the authority had followed the approach in Campisi and in consequence, it had refused to consider a further homelessness application of the claimant.

In my opinion, the law to be applied is that stated in Fahia, which is of course a decision of the House of Lords, which should always have precedence over a decision of the Court of Appeal, especially as the decision of the House of Lords was the later decision. It would be strange if the contrary were correct as that would mean that a decision of the House of Lords would be disregarded in favour of an earlier decision of a lower court; that approach cannot be correct. I will however consider the claim on the basis that Campesi states the applicable law after I have I have applied the principles in Fahia.

Therefore, the position after Fahia is that a local authority has an obligation to consider a second homelessness application unless the further application is, in Lord Browne-Wilkinson’s words in Fahia, which I have already quoted in paragraph 19 above, “based on exactly the same facts as the earlier application but those are very special cases”. In other words, an applicant is entitled to have a further section 184 application considered by the local authority provided there is a different factor or factors in the second application compared with the previous one.

Mr Fitzpatrick contends that there is one difference between the position of Ms Griffin at the time of the 2002 application and at the time of the 2004 application; that difference is that in 2004 unlike at the time of the 2002 application, Ms Griffin was making the application alone and without Mr Gibson. Mr Fitzpatrick had initially submitted that there was an additional difference because in 2004 Ms Griffin was fending without family support but he later accepted correctly that he could not show that this was not the same position prevailing as at the time of the 2002 application.

Mr Broatch for Southwark submits that irrespective of whether this application is considered in the light of the approach in Campisi or the approach in Fahia, the result will be the same because both approaches would lead to the conclusion that Southwark was not obliged to consider the 2004 application from Ms Griffin. The reason for that according to Mr. Broatch was that Ms Griffin was not living with or supported in anyway by Mr. Gibson at either the time of the determination of the 2002 application or at the time of the 2004 application. I agree with Mr. Broatch that it is appropriate to consider Ms Griffin’s 2002 application at the time of its determination because the purpose of the comparison exercise is essentially to determine Ms. Griffin’s position when Southwark refused her 2002 application.

It is common ground that at the time of the 2004 application, Ms Griffin was not living with Mr Gibson but Mr. Fitzpatrick contends that this was not the position at the time when the 2002 application was under consideration. So it becomes necessary to consider what the position was at the time of the 2002 application. Ms Griffin’s witness statement records that in December 2002, Southwark made the offer of accommodation on the Aylesbury Estate and in the words of Ms Griffin’s witness statement, she says of her relationship with Mr. Gibson that “by then our relationship had broken down and we had separated”. The written offer of permanent accommodation on the Aylesbury Estate was made on 10 December 2002 and so by then, Ms Griffin accepts that she was not then living with Mr. Gibson although she said in her witness statement that she and Mr. Gibson were trying to work things out.

Subsequent developments are consistent with the fact that Ms Griffin’s relationship with Mr. Griffin had broken down by early December 2003 because Ms Griffin first appealed to the Appeals Panel against the offer of accommodation on the Aylesbury Estate on 18 December 2002, although a letter in support was written by Mr. Gibson and second subsequently appealed against the decision adverse to Ms Griffins made by the Appeals Panel on 21 January 2003. In the latter appeal, Ms Griffin explained that she no longer lived with her erstwhile partner, namely Mr. Gibson.

The position that emerges is that by the time when the offer of permanent accommodation was made by Southwark in early December 2002, Ms Griffin’s relationship with Mr. Gibson was over although there was apparently a prospect of some sort that there would be reconciliation between them. Thus, there was no difference between the position of Ms Griffin in this respect at that time and when she made the 2004 application and, as I have already explained, this was according to Mr. Fitzpatrick the only difference in the position of Ms Griffin. To use the terminology of Lord Browne-Wilkinson in Fahia, which I have quoted in paragraph 19 above, the 2004 application could “be treated as identical with the earlier….application”.

If I had been in any doubt about this, I would have reached the same conclusion for three further reasons. First, by the time when Ms Griffin appealed initially unsuccessfully to the appeals panel against the offer of accommodation on the Aylesbury Estate in December 2002, she had separated from Mr. Gibson. Second when Ms Griffin appealed again unsuccessfully against the decision of the Appeals Panel in January 2003, she stated that she “no longer live(s) with my partner” and that refusal was the final decision taken by Southwark in respect of the 2002 decision and it is based on identical facts to the decision on the 2004 application.

Third, Southwark appear to have used the correct reasoning taken from Fahia in reaching its decision on the 2004 application because in the decision letter, Southwark explains that it

“has been unable to agree that there has been a material change in your circumstances following our offer of suitable accommodation [on the Aylesbury Estate]”

A court would be reluctant to quash a decision when, as here, the decision-makers, namely Southwark, have applied the correct public-law principles to reach a decision open to them on the facts, namely that the 2004 application and the 2002 application were based on the same facts.

Initially it was suggested that Ms. Griffin was under the influence of Mr. Gibson at the time of the 2002 application, but not at the time of the 2004 application. I have concluded that this suggestion was correctly not pursued. As I have explained, Ms. Griffin made the decisions herself at the time of the determination of the 2002 application to seek to appeal to the appeals panel and then to seek a review. Furthermore, the decision letter explains convincingly how Ms. Griffin made decisions herself in respect of the 2002 application such as rejecting the offer of accommodation on the Aylesbury Estate.

Even if I am wrong and the Campisi reasoning is to be applied, my decision would be the same, which is not surprising because, as I have explained, the threshold for accepting a second application is expressed to be higher in Campisi than in Fahia because it has not merely to be shown that the second application is not based on identical facts but, as I explained in paragraph 17 above, that the new material on the second application “gives reason to believe that the decision … ought to be reversed”. So Ms. Griffin’s 2004 application would not meet that test for essentially the same reasons as it failed the Fahia test.

It follows that his application must be dismissed and no doubt Ms Griffin will be advised how she can make further applications to Southwark Social Services for accommodation.