Conville v London Borough of Richmond-Upon-Thames

In this application for judicial review there are challenges to decisions of the defendant local authority in respect of three issues. First, the claimant alleges the defendant has failed to secure accommodation for such period as it considers will give her a reasonable opportunity of securing accommodation for her occupation, contrary to the obligation upon it under s.190(2)(a) of the Housing Act 1996 (as amended by the Homelessness Act 2002) (“the Act).” Second, she alleges the defendant failed to assess her housing needs as required by s.190(4) of the Act. Third, she alleges that the defendant’s decision not to provide financial assistance to her by way of a grant or loan for a deposit and one month’s rent in advance was not lawful.

The claimant is from the Republic of Ireland. She lived at an address in Ennis in a house she rented. She left it to come to London in August 2004. She was with her son Nathan, then aged 11. As will become apparent, her leaving that address formed the basis of a decision by the defendant that she was intentionally homeless (a decision which is not challenged). At first she stayed with a friend. She then obtained private rented accommodation for three months. She had to leave that on 22 November 2004. She applied to the defendant as homeless. She was given temporary bed and breakfast accommodation. She and Nathan are still there. Although the claimant came to England to seek work, she has not found it. She is unemployed and in receipt of income support.

On 11 February 2005 the claimant was interviewed following her homelessness application. On 22 February 2005 the defendant wrote to the claimant stating that it was satisfied she was homeless, in priority need (because of Nathan) and that she became homeless intentionally. The defendant gave the claimant notice to vacate the temporary accommodation within 28 days. On 3 March 2005 the defendant provided the claimant with details of private property to rent. Among other things she was told that she would require a deposit and one month’s rent in advance. “If you do not have these funds available, you should consider asking for a loan from parents, family, employer or a financial establishment.”

On 8 March 2005 the claimant asked for a review of the decision of intentional homelessness under section 202 of the Act. She asked for temporary accommodation pending that review. The defendant said that it would in its discretion continue to provide accommodation: see the letter of 10 March 2005.

On 16 March 2005 the claimant’s solicitor informed the defendant that the claimant had contacted landlords. The claimant did not have sufficient funds to pay the deposit or the month’s rent in advance. That is agreed. It is also agreed that since then she has genuinely sought accommodation. Her barrier to obtaining it is her inability to pay the sums invariably sought.

On 5 May 2005, Mr. Emerson, the team leader of “advice and assessment” in the housing department wrote to the claimant’s solicitor. He said there was no basis to overturn the original decision that the claimant was intentionally homeless. Among other things, he said this.

“Ms Conville has been provided with temporary accommodation…since 22 November 2004. On 10 March 2005 we agreed to use our discretion to continue [her] accommodation…Ms Conville has been provided with significant advice and assistance to find privately rented accommodation. This includes an appointment with a housing adviser on 2 November 2004. She has been given comprehensive information about where to look for accommodation, information about Letting and Estate Agents and what landlords want from potential tenants. This also included affordability, viewing property and what to do if you do not have a deposit. On 3 March 2005 she received a written invitation to meet with our Children and Families Officer…who was happy to work with Ms Conville to help her find and secure accommodation. She was visited…on 5 May 2005 where she was given further advice about securing alternative accommodation. Ms Conville has demonstrated her past ability to secure accommodation and negotiate with landlords. She is able to seek accommodation in any district. She is not destitute and understands the housing benefit system. She has no medical conditions which prevent her from finding accommodation. [She] is not less able to seek and secure accommodation for herself than other families in the same position. Having considered this it is my decision not to provide assistance by way of a grant or loan.

Ms Conville has been provided with accommodation for 5 months and has received ongoing advice to secure her own accommodation. As a result of this decision I am prepared to extend Ms Conville’s accommodation until Friday 3 June 2005. Thursday 2 June 2005 will be the last night.”

Included in the information provided was a document dealing with the topic of the deposit required by landlords. It suggested the possibility of borrowing the money from a friend or relative. It spoke about a possible crisis loan from the Social Fund or possible help through Housing Benefit. It is agreed that none of these avenues is presently open to the claimant.

The claimant disputes some of the assertions in the letter. It is unnecessary to go into that. She received the letter on 11 or 12 May 2005. It had been sent by facsimile to her solicitors on 9 May 2005.

This is the first decision letter the claimant seeks to impugn.

On 12 May 2005 Ms Gregory, the Children and Families Housing Office wrote to the claimant. She said this.

“I refer to our telephone conversation earlier today regarding assisting you to find accommodation in the private rented sector.

The Council is unable to offer you funding for the deposit and rental advance and it is therefore necessary for you to make your own arrangement for these funds by considering asking for a loan from friends, family or a financial establishment.

You should also consider making an application to the Social Fund for a…loan…

I understand from our conversation, you have already submitted a pre-tenancy determination for a two bedroom property in…Hounslow…”

On 18 May 2005 the claimant’s solicitor wrote to the defendant about the property in Hounslow. She asked it “to consider paying the rent in advance and a rent deposit under the council’s rent deposit scheme…” Alternatively, she asked for assistance in paying a deposit and/or rent in advance. On 19 May 2005 Ms Gregory responded. She said “unfortunately our Rent Deposit Scheme is not taking referrals for the foreseeable future until more resources can be secured in order to guarantee the continued operation of the Scheme. This Scheme is discretionary and is not a statutory service.”

Also on 18 May 2005 the claimant’s solicitor wrote and alleged failures to carry out a housing needs assessment, to provide advice and assistance and to provide accommodation for a sufficient period to give her a reasonable opportunity of securing accommodation.

On 25 May 2005 the claimant’s solicitor wrote again and asked for assistance under the “Rent Deposit Guarantee Scheme.” There was reference to the claimant being told by a receptionist that the scheme was overwhelmed and would be accepting no further applications. There also reference to the claimant being told she was not eligible because of intentional homelessness.

On 27 May 2005 Mrs. Harper, the Senior Advice and Assessment Officer, wrote to the claimant’s solicitor. She said this.

“… I reiterate that your client is not eligible for the Rent Deposit Scheme as she was found to have become homeless intentionally …

…You also requested a review of the decision that Ms Conville is not eligible for our Rent Deposit Scheme. This is not a statutory service. It excludes those found to have become homeless intentionally and we do not accept that we are required to formerly (sic) review this decision.

You also stated that we have failed to carry out an assessment of your client’s housing needs. This would have no effect on the merits of the decision to uphold the ‘intentionally homeless’ decision.

You have also requested a review of our failure to provide Ms Conville with advice and assistance. As per our review decision dated 5 May 2005, Ms Conville has been provided with a substantial amount of advice and assistance to find privately rented accommodation … There is no budget for us to pay rent in advance and a rent deposit for Ms Conville. Ms Conville has been advised both verbally and in a letter dated 12 May 2005 that she should make an application to the Social Fund for a Budgeting Loan at the Department of Work and Pensions in Montague Road, Hounslow. She can then apply to the borough in which her identified property is situated for a Pre-Tenancy Determination to ensure the rent can be met by housing benefits. We are given to understand that because your client had previously resided in Eire and did not come to the U.K. until 3 August 2004 she is not entitled to a Budgeting Loan.

… As per our review letter, Ms Conville has been provided with accommodation for 5 months and has received ongoing advice to secure her own accommodation throughout this period …”

The context of this letter was a response to the Claimant’s solicitors’ request for accommodation pending an appeal to the County Court in respect of the review decision.

This is the second decision letter the claimant seeks to impugn.

On 31 May 2005 the claimant’s solicitor sent a pre-action letter. One of its allegations was an alleged failure to provide advice and assistance under section 190(2)(b). It called into question the lawfulness of the rent deposit scheme on the basis of the exclusion of the intentionally homeless. That suggestion is not now pursued. It also suggested that the exclusion of the intentionally homeless was “…an irrational fettering of discretion in the light of the duty under section 190(3) to provide assistance to people who are intentionally homeless.”

The reference to section 190(3) was clearly meant to be a reference to section 190(2)(b). Section 190(3) applies to those not in priority need, whereas section 190(2)(b) applies to those in priority need. However, as far as the obligation to provide assistance is concerned, it is in identical terms.

As to the response to this letter, Mrs. Harper says this.

“I considered whether I should treat the Claimant’s case as an exceptional case on its individual facts and decided that this was not an exceptional case and in reaching my decision I considered in particular the following:-

(a)

The Claimant’s extensive attempts to find private accommodation

(b)

The Claimant’s financial difficulties in securing accommodation

(c)

That few landlords will accept [those]…in receipt of Housing Benefit

(d)

The shortage of private rented accommodation in the locality

(e)

The Claimant had been unable to secure accommodation even though she has made extensive attempts

(f)

Identification of properties which would be available to the Claimant if the Defendant had provided financial assistance

(g)

The refusal of a budgeting loan…

(h)

The fact that the Claimant has managed to find a property…

(i)

The Council’s general aim to improve access to the private rented sector

(j)

The suspension of the Rent Deposit Scheme due to over-subscription and the scheme not being available to people who have made themselves intentionally homeless.”

On 8 June Ms. Ramtohul, the Head of Legal Services wrote to the claimant’s solicitor in response to the letter of 31 May. She had plainly obtained instructions from Mrs. Harper. She said this.

“Failure to provide accommodation for a sufficient period to give the applicant a reasonable opportunity of securing accommodation – section 190(2)(a).

The Council takes the view that the relevant period of time during which the Council provided your client with accommodation began on 22 February 2005, when she was issued with a section 184 decision, which informed her that the Council was satisfied that she had made herself intentionally homeless.

… if the relevant period of time began on 11 May 2005, the Council is of the opinion that the facts that your client was provided with temporary accommodation following the adverse section 184 decision and a letter dated 15 February 2005, warning her that she would be expected to make every reasonable effort to secure accommodation for herself, are nevertheless relevant to whether the period during which accommodation was provided after 11 May 2005 was sufficient to give her a reasonable opportunity of securing accommodation.

… We note that following recent correspondence your client’s accommodation has been extended to 8 June 2005 which amounts, on any view, to a total period of over 28 days.

Having taken into account the scarcity of housing in the locality for people who are on benefits, your client’s circumstances including the fact that she does not have a deposit or advance rent, and the difficulties this poses for her, and the other points raised in your letter of 26 May 2005, the Council is satisfied that, regardless of whether the relevant period of time started on 22 February 2005 or 11 May 2005, the period during which accommodation has been provided has been sufficient to give your client a reasonable opportunity of securing accommodation.

Failure to carry out Housing Needs Assessment – section 190(4)

… It is accepted that no written assessment was carried out, however your client’s needs had been fully assessed by the Housing Officers of the Housing Needs department before providing advice and assistance to her. There was a substantial amount of information relating to your client on her housing file, including information provided by her at interview, and the Council was satisfied that it had sufficient information to carry out an assessment….

Failure to provide advice and assistance

… your submission that the Council has acted unlawfully as it had not carried out an assessment is not accepted. We can confirm that the Council operates a Rent Deposit Scheme to assist homeless people who have not made themselves intentionally homeless with deposit and/or advance rent in order to obtain accommodation in the private sector. … no written policy governing the scheme, however, there is a procedure note setting out the basic criteria under which it operates, a copy of which we enclose.

Notwithstanding the fact that your client is not eligible under the criteria of the Rent Deposit Scheme, we can further confirm that the Scheme is no longer taking any further applicants as it is over-subscribed. … the Council is unable to accede to your request to provide your client with assistance under the Scheme in any event.

… Whilst the Homelessness strategy may not specify that the Scheme excludes people who have been made intentionally homeless, however the purpose of the strategy is to set out general aims and objectives, not to determine the criteria under which the Scheme operates.

This is the third decision letter the claimant seeks to impugn.

The application for Judicial Review was made. Paragraph 26 of the Claim alleges that the defendant failed to take into account “The Claimant’s extensive attempts to find private rented accommodation…[her] financial difficulties in securing accommodation…The evidence that very few landlords will accept tenants who intend to claim housing benefit…The shortage of private rented accommodation…The fact that the Claimant having made extensive attempts, remain unable to secure accommodation…that she has identified accommodation…[and] two further properties potentially available…by mid-June (if financial assistance is provided).”

Paragraph 36 was in not dissimilar terms.

As to section 190(2)(b), the claim alleged that the defendant had “fettered its discretion by asserting [in the first three decision letters] that the Claimant was eligible for the rent deposit scheme. It failed to consider whether it should provide financial assistance outside of the specific rent deposit scheme, pursuant to its duty under section 190(2)(b).”

On 8 June 2005 the claimant’s solicitor asked the defendant to reconsider its refusal to provide financial assistance. “Even if [the defendant] is not accepting any further applications under the rent deposit scheme, [it]…has the power under section 190…to assist our client…”

On 9 June 2005 Ms. Ramtohul responded.

“… We can confirm that our instructions were that the Council’s decision in relation to the Rent Deposit Scheme and rent in advance, and the period of accommodation, were based on, and took into account the representations made in your pre-action protocol letter dated 31 May 2005.

Under the Rent Deposit Scheme, the Council tries to target for financial assistance those people who are not intentionally homeless and do not have a priority need as they would not generally be able to access social housing.

… The Council does not consider that your client’s case to be an exceptional case. In reaching its decision the Council has taken into account paragraphs 26 and 36 of Ms Colville’s Grounds for Judicial Review as well as the other factors put forward in your letter of 8 June 2005, including the fact that she has managed to find a property to rent, and has also taken into account the suspension of the Rent Deposit Scheme due to over-subscription.”

This is the fourth decision letter the claimant seeks to impugn.

By section 184 of the Act, if the defendant has reason to believe that an applicant is homeless or threatened with homelessness, it is required to make such inquiries as are necessary to satisfy itself whether he is eligible for assistance and if so, what if any duty it owes him (section 184(1). On completing its inquiries it must notify the applicant of its decision and give him reasons if the decision is against him (section 184(3). In the event of an adverse decision, the applicant must be told of his right to request a review (section 184(5).

By section 188 of the Act there is an interim duty upon the local authority to secure accommodation pending a decision as to its possible duty to the applicant. That obligation ceases when the applicant is notified of the decision, although under section 188(3) the local authority may secure accommodation is available pending a decision on review.

The procedure on review is set out in section 203 of the Act.

In Mohammed v Hammersmith and Fulham London Borough Council [2002] 1 AC 547, the House of Lords considered, among other things, the nature of the material to be looked at in a review. As it is put in the headnote,

“The material which might be looked at by the reviewing officer was not limited to the circumstances existing at the date of the initial decision but included information relevant to the period before the first decision but only obtained thereafter and matters occurring after the original decision; and that accordingly the question of the applicant’s local connection [the issue in that case] fell to be assessed on that basis …”

Lord Slynn of Hadley referred to the decision of the reviewing officer being “at large…as to the facts…[paragraph 27].”

Section l90 of the Act sets out the duties on the local housing authority where a person becomes intentionally homeless. Its provisions are at the heart of this application. Section l90(2) provides:

“If the authority are satisfied that the applicant has a priority need [as here], they shall [my emphasis] –

(a)

secure that accommodation is available for his occupation for such period as they consider will [my emphasis] give him a reasonable opportunity of securing accommodation for his occupation, and

(b)

provide him with (or secure that he is provided with) advice and assistance in any attempts he may make to secure that accommodation becomes available for his occupation …

(4)

The application’s housing needs shall be assessed before advice and assistance is provided under subsection (2)(b) ….”

In De Falco v Crawley Borough Council [l980] QB 460, the Court of Appeal, in what are agreed to be observations made obiter, considered from when the obligation to give the intentionally homeless person a reasonable opportunity of securing accommodation should run. (The Court was there concerned with a provision in identical terms to that of section 190(2)(a)). Lord Denning, MR, said that

“regard can be had to the five or six weeks which they had already been in the guest houses. They had had all that time in which to find other accommodation.”

Bridge LJ took a different view. He said

“In my judgment the period contemplated … is one which commences when the local authority’s decision adverse to the applicant on the issue of intentional homelessness is communicated to him, and the local authority cannot rely on any prior opportunity the applicant has had of himself securing accommodation for his occupation which ex hypothesi has not been successful, to curtail the period which will afford a reasonable opportunity after the local authority’s decision is made and communicated.”

Both counsel submit that for the reasons he expressed Bridge LJ was right. I agree. The duty arises once the local authority has determined that someone in the claimant’s position is intentionally homeless. Sub-section (2)(a) contemplates that thereafter the authority will give him a reasonable opportunity of securing accommodation. In assessing what is such an opportunity, it is not required to ignore the events prior to its determination. As Miss Davies on behalf of the claimant puts it, the local authority cannot rule out the previous accommodation. However, it is merely one factor among several.

There is an issue as to when the adverse decision was reached however. I shall come to it shortly.

On 21 March 2005 the Secretary of State issued consents pursuant to his power to do so under section 25 of the Local Government Act 1988. By the consent at paragraph C

“A local authority may provide a…private landlord…with any financial assistance…for the purpose of carrying out the authority’s statutory duties and obligations set out in, or exercising the authority’s powers arising under Part VII of the Housing Act or the Homelessness Act 2002.”

By the consent at paragraph F

“…a local housing authority may provide any person…with any financial assistance or any gratuitous benefit…”

It is unnecessary to go into further detail.

It is agreed that the defendant’s obligation under section 190(2)(b) to provide the intentionally homeless person with “assistance” includes a power pursuant to these (or earlier) consents to provide financial assistance.

I note a news release of 13 June 2005 from the Office of the Deputy Prime Minister in which it is said that rent deposit schemes play an important role in preventing homelessness.

By section 1 of the Homelessness Act 2002 the local authority is obliged to formulate a homelessness strategy. Section 1(5) requires it to take that strategy into account when exercising its functions. By section 3 that

“…means a strategy…for-

(a)

preventing homelessness in their district;

(b)

securing that sufficient accommodation is and will be available for people in their district who are or may become homeless;

(c)

securing the satisfactory provision of support for people in their district-

(i)

who are or may become homeless; or

(ii)

who have been homeless and need support to prevent them becoming homeless again.”

The defendants have a homelessness strategy. I shall come to it shortly.

The Secretary of State has issued guidance to local authorities. Chapter 9 is relevant. 9.22 states, as is plainly the case, that any assessment of a person’s housing need may need to range wider than the inquiries into homelessness under section 184. Factors which make it difficult to secure accommodation should be identified. 9.22 refers to the difficulty applicants in many areas may have in providing a deposit or rent in advance. “Housing authorities may wish to consider the provision of rent guarantees…”

It was issued in July 2003. Among other things it refers to

There is specific reference to a rent deposit scheme. Under the heading “longer term housing options” it states that the “rent deposit scheme promotes choice by improving access to private-rented sector…[Theme 5].” The rent deposit scheme is referred to as a strength or achievement (paragraph 5.3). It is said that it offers “greater re-housing options for those at risk of homelessness: (paragraph 8.3); that the objective of the scheme is “to help 84 households threatened with homelessness into private-sector housing using deposit scheme;” that it is financed from “existing resources (Theme 5).”

On the defendant’s web site it is said “the Scheme is intended to assist people who are homeless or at risk of becoming homeless to find housing in the private rented sector. It guarantees the deposit…up to the equivalent of 4 weeks rent.” It states in terms that

“This scheme is not intended to provide accommodation for people in priority need of housing or people who have made themselves intentionally homeless.”

That is stated too in documentation provided to the claimant by the defendant: see page 125 of the bundle.

In short, the scheme cannot apply to the claimant. In any event, as the correspondence makes plain, it has closed for financial reasons.

Although there are the three areas of challenge to which I have referred, there are common threads running through them. First, Miss Davies, who has presented this application with conspicuous ability, submits that the intention of legislature is clear. Homelessness should be avoided if at all possible. Every assistance should be given to applicants to seek to avoid it. Local authorities should consider their obligations in that light. Second, she submits, and it is agreed, that the barrier to the claimant obtaining accommodation is her inability to provide the deposit and rent in advance. If she could do that, she would not be homeless. The defendant’s discharge of its obligations under section 190 must be considered in that light. The defendant’s decisions were flawed because they failed to do that.

I shall take the second challenge first, namely the alleged failure of the defendant to assess the claimant’s housing needs as required by s.190(4) of the Act. There are a number of areas of criticism. Miss Davies, emphasising the nature of the obligation under section 190(4), in particular the requirement to assess housing need in the broad terms indicated by the Code before advice and assistance is provided under subsection 2, submits that it is plain that at the decisions of 5 May and 27 May there had been no assessment. There was nothing in writing. There was no formal assessment. However, she accepts that by the time of the decisions in June the defendant had all the information it should had despite the earlier failures. Miss Davies accepts that makes the second challenge academic. The importance of the failure properly to assess the claimant’s housing needs led to the third, and most important error, the failure to provide financial assistance.

In the light of Miss Davies’ entirely sensible concession, it is not necessary for me to decide the second challenge.

I turn then to the first effective area of challenge, namely the alleged failure of the defendant to secure that accommodation is available for the claimant’s occupation for such period as it considers will give her a reasonable opportunity of securing accommodation, in accordance with its obligation under section 190(2)(a).

As I have said, it is agreed that the date of the decision of intentional homelessness is the date from which the that the local authority must give someone in the claimant’s position a reasonable opportunity of securing accommodation. Here, the section 184 decision was on 22 February 2005. 28 days’ notice was given: namely to 22 March. The review decision was on 5 May (although the claimant was told on 11 or 12 May). The period was extended from 22 March to 3 June; if my arithmetic is right, some 25 days from 5 May. That period has since been extended following the claim for judicial review.

Miss Davies’ submission is this. As Mohammed makes clear, a review amounts to a re-hearing (see paragraphs 32-3 above). The crucial date therefore is when the claimant is told of the review decision. It from then that the defendant’s obligations under section 190(2)(a) run. Mr. Hutchings disagrees. He submits that the statutory scheme is clear. Section 188 places an interim duty on the local authority to accommodate. That ceases on the applicant being told of the local authority’s decision. When a review is sought, there is no obligation, only a power to secure accommodation. It would be quite inconsistent with that procedure for section 190(2) effectively to require the local authority to provide accommodation pending the review.

Although as will become apparent not necessary for my decision in this case, it does seem to me Mr. Hutchings is right. Section 190(1) provides that the local authority’s obligation under section arises only if it is satisfied both of intentional homelessness and eligibility for assistance. Here the defendant was satisfied of intentional homelessness on 22 February. That is the date from which its obligation arose. The fact the applicant sought a review and the nature of that review does not change that.

Be that as it may, Miss Davies accepts that from whatever date the obligation runs from, the defendant was entitled to take into account as a factor earlier events. Those would include the obvious difficulty the claimant had so far had in obtaining accommodation.

In deciding what is a reasonable opportunity, Miss Davies submits that defendant was obliged to take account all the circumstances. It had to consider what would give this applicant a reasonable opportunity. In deciding the reasonableness of the opportunity for this claimant to secure accommodation, it had to take account of the financial barrier preventing her obtaining accommodation. The defendant should, Miss Davies submits, have considered such matters as the following: possible financial assistance to the claimant from the defendant or elsewhere: the time it would take to obtain such assistance: the possibility of obtaining work and the timescale of that: the possibility of saving up from her benefits and the timescale of that.

In short Miss Davies submits that the local authority is required to ask itself what period of time would give this claimant a reasonable opportunity of securing the accommodation. She submits such matters were never considered. The most she was given was some information.

Mr. Hutchings submits that Parliament did not specify what should be taken into account by a local authority when deciding what is a reasonable opportunity. It is open to the authority, subject to Wednesbury review to take into account available resources for providing housing assistance to the homeless generally. Parliament has not said that the period must be reasonable in the applicant’s opinion or solely from his point of view.

In my view, words “reasonable opportunity of securing accommodation” involve consideration by the local authority both of the applicant’s individual situation and that of the authority itself. In this case, that would involve consideration of the claimant’s financial difficulties, but not to the exclusion of all else. It seems to me quite plain that Parliament intended that the local authority should exercise its judgment having regard to those factors it reasonably considered relevant. Those must include such things as the resources available to the authority, the demand for housing in the area, the demand from those who are not intentionally homeless and so on. If Miss Davies is right, on facts such as the present, such would be the obligation on the local authority that any distinction between the intentionally and unintentionally homeless person would to all intents and purposes disappear. For the practical effect of her submissions would be a virtually open ended obligation upon the authority to provide accommodation until such time as the claimant has obtained sufficient funding to rent property. That does not seem to me to have been Parliament’s intention.

The factors considered by the defendants are expressed in the letter of 8 June in these terms.

“…Having taken into account the scarcity of housing in the locality for people who are on benefits, your client’s circumstances including the fact that she does not have a deposit or advance rent, and the difficulties this poses for her, and the other points raised in your letter of 26 May 2005, the Council is satisfied that, regardless of whether the relevant period of time started on 22 February 2005 or 11 May 2005, the period during which accommodation has been provided has been sufficient to give your client a reasonable opportunity of securing accommodation.”

It seems to me that reflects a sufficient consideration of the issues raised in this case by section 190(2)(a). It seems to me the defendant was entitled to come to the decision expressed in that letter whether the starting date was 22 February or 11 May.

It is not necessary to analyse the earlier decision letters or make any findings regarding them. By 8 June 2005 the defendant had adequately discharged its duty under section 190(2)(a) for reasons sufficiently expressed.

This is the most important aspect of the application. Its basis should be spelled out.

Miss Davies does not suggest that financial support can be offered by the defendant under its homelessness strategy (were it to have the means of doing so). Although she points out the policy is effectively restricted to able bodied adults living without dependents who are not intentionally homeless, she does not attack its lawfulness. Such a policy, she accepts, is a matter for the defendant. She submits that the exclusion of the intentionally homeless was a reason why financial assistance should be provided. She further submits as follows.

Under section 190(2)(b) the defendant is obliged to provide the claimant with advice and assistance. That assistance can include financial assistance. The Consents make that clear. When considering its section 190(2)(b) obligations of assistance, the defendant should have considered the possibility of providing financial assistance. The tenor of the legislative background makes that clear. Such assistance could, for example, be provided at little cost by guaranteeing the deposit and advance rent. In its decision letter of 27 May 2005, the defendant wrongly said the claimant was not eligible. That was to overlook the power the defendant had to fulfil its obligations under section 190(2)(b) by financial assistance pursuant to the Consents. The decision letter of 8 June 2005 repeated the error. It went on to say that the scheme was no longer taking applicants because it was over-subscribed. The letter of 9 June 2005, although purporting to deal with the matter more broadly, is tainted by what went before. Crucially, if, as that letter states, the defendant really did consider possible financial assistance under section 190(2)(b), it was perverse on the facts of the case not to provide it. As it is put in the Skeleton Argument,

“The Claimant submits that on the information available to the Defendant (that a deposit and one month’s rent were all that stood between her and the obtaining of accommodation and that she had no resources from [anywhere] to raise the deposit and one months rent) the only conclusion that a local housing authority acting reasonably could come [to] would be…[to] exercise its power to provide financial assistance to the Claimant…

alternatively…the defendant’s reasons for deciding not to provide financial assistance should address those considerations and provide cogent explanation for its refusal. Reliance on the over-subscription of the rent deposit scheme and a general statement that the Claimant’s case is not considered exceptional is not sufficient.”

In short, Miss Davies’ primary submission is a bold one. She submits that on facts such as the present a local authority is obliged to provide the intentionally homeless with assistance. Not to do so is perverse.

Mr. Hutchings disagrees. He submits there is no duty under section 190(2)(b) to provide such assistance as will secure that accommodation is available for the intentionally homeless applicant. There is no basis for saying there is a statutory duty to provide a deposit and advance if that is the only way in which the applicant will be able to secure accommodation. The duty to provide advice and assistance confers a power to provide financial assistance. The exercise of that power (as now relevant) is only open to challenge if the authority failed to take into account something which no reasonable authority could fail to regard as material to the exercise of that power or the decision is patently perverse.

Mr. Hutchings emphasises that the Code (in paragraph 9.25) merely states that the authority “may wish to consider” a rent guarantee (see paragraph 45 above). It is not specifically aimed at the intentionally homeless person.

Mr. Hutchings submits (and it is not in issue) that in the exercise of its power to allocate resources to its rent deposit scheme a local authority may set general criteria to exclude the intentionally homeless. What it may not do is adhere to such criteria as to preclude the possibility of providing financial assistance to the intentionally homeless applicant, in an exceptional case. He submits also that the terms of a scheme which lawfully (as here) excludes the intentionally homeless may be a relevant consideration when considering financial assistance in a case such as the present. The defendant was entitled when reaching its decisions of 8 and 9 June 2005 to take the terms of the scheme into account.

Mr. Hutchings further submits that the defendant did consider expressly whether to treat the claimant’s case as exceptional on its facts, as the letter of 9 June 2005 made clear. There is no basis to submit that the decision not to provide financial assistance was perverse. Once it is accepted the defendant had an overall discretion overlaid by the scheme, perversity cannot arise. Moreover, the defendant cannot fairly or consistently provide financial assistance to the claimant while withholding it from others in similar circumstances. The decision was rational.

First, I accept, as Miss Davies submits, a general intention by the legislature that homelessness should be avoided if at all possible: that local authorities should consider their statutory obligations in that light.

Second, I accept, as is agreed, that the barrier to the claimant obtaining accommodation is her inability to provide the deposit and rent in advance. If she could do that, she would not be homeless. The defendant’s discharge of their obligations under section 190(2)(b) should be considered in that light.

Third, the legislature draws a distinction between those who are intentionally homeless and those who are not. The duties on the local authority in respect of the first group (even with priority need) are less. The duty under section 190(2)(b) is to provide assistance to secure accommodation. It is not to secure it.

Fourth, in discharging its duty under section 190(2)(b) the local authority has the power to provide financial assistance.

Fifth, the exercise of the defendant’s power to provide financial assistance pursuant to its obligation to provide assistance under section 190(2)(b) is open to challenge on conventional public law grounds. A successful challenge would lie if the defendant, in the exercise of its power to provide financial assistance, failed to take something into account which any reasonable authority would have done, or if it takes into account something no reasonable authority would have done, or if it acts perversely.

Sixth, as is agreed, a scheme such as the defendant’s rent deposit scheme may lawfully be restricted in the way this scheme is. That is a matter for the local authority.

Seventh, when considering an application such as the claimant’s for financial assistance under section 190(2)(b) the local authority is not obliged to ignore the terms of its scheme. It may have regard to the scheme’s criteria for eligibility. It may also take account of whether or not that scheme has the funds to provide financial assistance to those who are eligible. The defendant could reasonably conclude there would be an element of unfairness in closing a scheme to those who qualify because of a lack of funding, while at the same time providing such assistance to someone who does not qualify. It would be entitled to take that element of unfairness into account.

Eighth, while it may have regard to the criteria of its scheme, the defendant cannot by doing so effectively preclude the exercise of its discretionary power to grant financial assistance under section 190(2)(b).

Ninth, the defendant is entitled to have regard to the broader financial implications in providing financial assistance to every intentionally homeless person in a similar position to the claimant. As a matter of common sense, it seems to me an obligation such as that contended for here would have considerable financial implications for a local authority such as the defendant. The defendant would be entitled to conclude there were such implications.

Tenth, provided it approached its consideration of the different issues in a way which was not Wednesbury unreasonable, the defendant was entitled not to provide financial assistance. I do not accept Miss Davies’ primary proposition that in all cases of intentional homelessness with priority need, where the homeless person is genuine and has premises to go to, the local authority is effectively bound to provide financial assistance: that not to do so is perverse. That would be tantamount to placing a duty under section 190(2)(b) upon the local authority where none exists.

In short, provided it lawfully considered the application and provided sufficient reasons for rejecting it, the defendant was in my view entitled not to provide financial assistance to the claimant. Did it do so?

Whatever the position before then, by the time of the third decision letter (8 June 2005), it was reasonably clear that the claimant was requesting financial assistance pursuant to the defendant’s obligations under section 190 (albeit the reference was in error to section 190(3): see paragraphs 17 and 18 above). The defendant was by then, as Mrs. Harper states, considering whether financial assistance might be provided to the claimant: whether the claimant’s case might be exceptional: see paragraph 19 above. In doing so, it plainly contemplated that it had the power to provide assistance. In other words, the defendant was not limiting itself to the criteria of its scheme. Moreover, it is inconceivable the defendant was unaware of its broader obligation as reflected by the legislation to avoid homelessness if at all possible.

By the time of the fourth decision letter (9 June 2005), the basis of the claim for financial assistance was unequivocally spelled out. The availability of possible properties was drawn to the defendant’s attention: see paragraphs 22-5 above. The matters considered by the defendant in refusing such financial assistance were summarised in the fourth decision letter (paragraph 26 above).

While in its earlier approach there was an over emphasis by the defendant upon eligibility under its scheme, it seems to me that by 9 June 2005 it was approaching the question of financial assistance in a way it was entitled to. It had regard to all the material aspects of the claimant’s position. It was aware of its power to give financial assistance in terms of its obligations under section 190(2)(b). It placed such reliance on the terms of its scheme as it was entitled to. It was entitled to approach the claimant’s application in the way it did. It was entitled to reject it. As to the reasons provided, they seem to be adequate. No doubt they could be expressed at greater length and in more detail. However, it is not appropriate in my view to subject the reasons expressed for a decision lawfully reached to over legalistic, textual analysis. As in all such situations the practical realities need always to be born in mind. No doubt those with responsibility for homelessness in an authority such as the defendant have difficult decisions to take and explain, often under considerable pressure.

For the reasons I have given, this application for judicial review is refused.