Abdi, R (on the application of) v London Borough of Lambeth

This is an application for judicial review of a decision of the London Borough of Lambeth (“the Council”) of 22 May 2007 not to provide the Claimant with temporary accommodation pending a review of the Council’s earlier decision not to provide her with housing as a homeless person. The claim raises a discrete point of wide application and some practical importance, namely whether it is lawful for the same housing officer who has made a decision refusing an application for housing under Part VII of the Housing Act 1996 also to decide an application for temporary accommodation pending a review of that decision.

On 30 May 2007, the matter came before Underhill J, who ordered the application for permission to apply for judicial review to be heard on notice. When the matter came before me, on the joint application of the parties I agreed that the application for permission and (if granted) for the substantive application should be heard at the same time. This is the reserved judgment from that hearing.

The provision of housing assistance by local housing authorities to homeless persons is the subject of a comprehensive statutory scheme now found Part VII of the Housing Act 1996 as amended by the Homelessness Act 2002.

The scheme so far as relevant to this claim is as follows:

With regard to this scheme, three specific matters are of particular note in relation to the claim before me, namely (i) the role of judicial review in the scheme, (ii) the proper approach to the power resting in local housing authorities to secure interim accommodation following a Section 184 decision adverse to the applicant, and (iii) the procedure on review: and I will deal with these, before I turn to the facts of the case.

The 1996 Act introduced a right of appeal to a county court in respect of decisions made by local housing authorities on applications from the homeless for housing assistance. Prior to the Act coming into force, the only challenge open to unsuccessful applicants was by way of judicial review. However, as Lord Woolf MR explained in R v Brighton & Hove Council ex parte Nacion (1999) 31 HLR 1095 at pages 1100-1, judicial review was not regarded as an appropriate method of challenge because the need for relief was often brought at very short notice; applicants often lived far from London; and High Court proceedings were not regarded as the most appropriate forum for resolving the often delicate issues that arose out of local authorities’ responsibilities for providing accommodation. Parliament therefore intervened to give unsuccessful applicants the right to appeal to the county court on points of law only, which had a number of benefits: it relieved the work of the Administrative Court, it gave the applicants a more accessible legal right of challenge and, because of the availability of such a right, it is widely regarded as having led to an improvement of the decision-making process in many local authorities.

Parliament did not give any right of appeal in respect of interim relief: any right of challenge to unsuccessful applications for interim accommodation remained to the High Court. However, the High Court has emphasised that this residual jurisdiction must not be used to frustrate the Parliamentary intention of the 1996 Act, which was generally to remove issues with regard to housing the homeless from the High Court. In a number of cases, the courts have emphasised that the scheme of Part VII of the 1996 Act is intended to be a comprehensive one, in which Parliament has been specific about where it intends the responsibility for decision-making to lie: and the courts must generally defer to that intention. For example, in Nacion, Lord Woolf MR said of the High Court’s residual jurisdiction with regard to interim relief:

“In an emergency situation, where a person is concerned about the decision of an authority not to provide interim accommodation, it has to be accepted that this is a matter which is given to the authority to deal with, and the courts generally have no power to intervene. It is only in an exceptional case… that this court can intervene on judicial review….

If an authority refuses even to consider exercising its discretion under Section 204(4) then I can understand that judicial review may be an appropriate remedy. Apart from that situation, I have difficulty in envisaging cases where application for judicial review will be appropriate….

…. [I]n a case where a local authority has not exercised its discretion under Section 204(4) in an applicant’s favour, the only course which can be appropriately be taken in the general run of cases is to make an application (which has not been made in this case) for the appeal under Section 204 to be heard as soon as practicable.”

These comments were made in relation to the power in a local authority under Section 204(4) to provide temporary accommodation to an applicant pending an appeal to the county court: but they are equally applicable to the exactly similar power under Section 188(3) in relation to the period pending review.

The power to secure interim accommodation after a Section 184 decision has been notified and pending a review under Section 202(1) was the subject of consideration by this court in R v London Borough of Camden ex parte Mohammed (1997) 30 HLR 315. Latham J held that, when an authority exercise their power under Section 188(3), they have to balance the objective of maintaining fairness between homeless persons in circumstances where they have decided that no duty is owed to the applicant, and proper consideration of the possibility that the applicant might be right and that to deprive him of accommodation could result in the denial of an entitlement. In carrying out this balancing exercise, certain matters will always need to be taken into account:

By “merits of the case” is meant “the merits of the applicant’s case that the authority’s original decision (i.e. the Section 184 decision) was flawed” (R v London Borough of Newham ex parte Lumley (2000) 33 HLR 1 at Paragraph 54, per Brooke LJ).

The various public duties that are imposed and public powers granted in Part VII expressly fall on “the local housing authority”. Authorities of course cannot act other than through individuals and, as a general rule, unless expressly or impliedly restricted, it is for each authority to determine which individual(s) should exercise particular statutory duties and powers on their behalf in any particular circumstances.

In this scheme there is only one express restriction. By virtue of Section 202(4), on a request being made to them “the authority… concerned shall review their decision”. However, by Section 203:

“(1)

The Secretary of State may make provision by regulations as to the procedure to be followed in connection with a review under Section 202. Nothing in the following provisions affects the generality of this power.

(2)

Provision may be made by regulations:

(a)

requiring the decision on review to be made by a person of appropriate seniority who was not involved in the original decision…

….

(7)

Provision may be made by regulations as to the period within which the review must be carried out and notice given of the decision….”

The relevant regulations are The Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 (SI 1999 No 71). These, so far as relevant, provide:

“2

Where the decision of the authority on a review of an original decision made by an officer of the authority is also made by an officer, that officer shall be someone who was not involved in the original decision and who is senior to the officer who made the original decision.

…

6(1) A request for a review under Section 202 shall be made…to the authority..

(2)

Except where a case falls within Regulation 7, the authority to whom request for a review under Section 202 has been made shall:

(a)

notify the applicant that he, or someone acting on his behalf, may make representations in writing to the authority in connection with the review; and

(b)

if they have not already done so, notify the applicant of the procedure to be followed in connection with the review…

…

8(1) The reviewer shall… consider:

(a)

any representations made under Regulation 6….

…

(2)

If the reviewer considers that there is a deficiency or irregularity in the original decision, or in the manner in which it is made, but is minded nonetheless to make a decision which is against the interests of the applicant on one or more issues, the reviewer shall notify the applicant:

(a)

that the reviewer is so minded and the reasons why;

(b)

that the applicant, or someone acting on his behalf, may make representations to the reviewer orally or in writing or both orally and in writing.

9(1) The period within which notice of the decision on a review under section 202 shall be given under Section 203(3) to the applicant shall be [8-12 weeks dependent upon which provision the original decision was made under].

Therefore, the Act only envisages any possible restriction on individuals who might make decisions under Part VII in respect of “the decision on review”, i.e. a decision under Section 202. Even in that case, it does not require but only enables such a restriction: “The Secretary of State may make provision….”. The relevant regulation (Regulation 2) does enact such a restriction, but it is properly constrained: it provides that “the decision of the authority on a review of an original decision”, if made by an officer of the authority, must be made by a senior officer who was not involved with the original decision. The restriction in Regulation 2 is therefore concerned with only Section 202 decision-makers, and only Section 202 decisions. It does not expressly require the reviewing officer himself (e.g.) to give the applicant the relevant notice under Regulation 6(1). Also, it does not expressly restrict the original Section 184 decision-maker in having any part in (specifically) the review process or (more generally) any part of the process after the section 184 decision has been notified. These are matters to which I shall return (see Paragraphs 21-4 below).

Mrs Shukri Abdi came to the United Kingdom from Somalia on 30 May 2006, and was granted refugee status on 5 October 2006 at which time her NASS accommodation was withdrawn. According to Paragraph 2 of her Amended Statement of Grounds and Facts:

“She lived with friends from place to place night by night culminating in a stay at the home of Halima Ali Abdi (no relation) at 3 Penmayne House, Kennings Way, SE11 4EQ, the address from which she was made homeless when Ms Halima Ali Abdi withdrew her permission for Mrs Abdi to remain and told her to leave”.

She applied to the Council for housing, and on 30 April 2007 attended an interview with Mr Boniface Ugwu, one of the Council’s Options Officers. She told Mr Ugwu that she was pregnant, having been pregnant since she left Somalia in May 2006. Her medical records showed that her estimated due date was 30 July 2007. She also told him that she had only spent one night with Ms Halima Ali Abdi, but used that lady’s address for correspondence. Mr Ugwu telephoned Ms Halima Ali Abdi who said that Mrs Abdi had never stayed with her. Mrs Abdi would not give any further information about where she had stayed during her time in the UK.

On 2 May, Mr Ugwu sent a letter to Mrs Abdi notifying her that:

“… that this Council is not satisfied that you are homeless or in housing need”.

In its reasons, the letter specifically referred to Mrs Abdi’s failure to provide information as to addresses she had lived or the whereabouts of the person responsible for her 6 month pregnancy, which meant that Mr Ugwu was unable to carry out further enquiries into her claims of homelessness. The letter also referred to Mrs Abdi’s right to request a review of the refusal decision.

Such a request was made on 22 May by AP Law, solicitors acting on behalf of Mrs Abdi. It was accompanied by an application for temporary accommodation pending the outcome of the review. Such applications by their nature require to be dealt with promptly: and Mrs Abdi’s was considered by Mr Ugwu that day. After consulting with senior colleagues (Statement 18 June 2007, Paragraph 20), he wrote to Mrs Abdi saying that he had carefully considered the discretion to provide accommodation pending a review in the light of the relevant authorities (including Mohammed, to which Mr Ugwu specifically referred). He continued:

“In carrying out [the balancing exercise referred to in Mohammed] I have considered the merits of your client’s case and the extent to which it can properly be said that the decision was one which was either apparently contrary to the merits of the case or was one which required a very fine balance of judgment which might go either way. Secondly, I have considered whether there is any new material, information or argument put before the local authority, which could have a real effect upon the decision under review. Thirdly I have considered your client’s personal circumstances and the consequences to your client of an adverse decision on the exercise of discretion.

Merits of the case

I have noted your submissions in your letter as to what your client contends are her true circumstances. Nevertheless I consider that your clients’ prospects on review are poor.

This exercise is not a review of the s184 decision - that will be carried out by a senior officer not involved with the decision - but it is pertinent in the circumstances to set out in some detail some of the reason behind this decision on the temporary accommodation issue:

1.

The Council has asked itself whether you client was homeless or threatened with homelessness at the time of presentation for housing assistance. Presently, the Council is not satisfied on the information available to date that that was the case.

2.

We acknowledge that the obligation to make enquiries and satisfy itself whether a duty rests with the housing authority. However, the onus remains with the applicant to provide the housing authority with appropriate information to assist with such enquiries. To this day, your client has failed to provide the Council with any information relating to her address history, as opposed to a correspondence address.

3.

Prior to the decision of 2 May 2007, this Council had confirmed with Mrs Halima Ali that your client had never lived at 3 Penmayne House, Kennings way, SE11 4EQ; that she had only been allowed to use the address for her correspondence only.

Personal circumstances

I have noted that your client is pregnant. However, she informs me that she has no immediate health problems and she has to this day relied on members of her community for assistance and accommodation. But I find no reason to believe that her personal circumstances require that accommodation should be provided pending the outcome of the review.

Conclusion

The Council has accepted your request for review and hopes to provide a s202 decision on or within the statutory period.

At present, the authority is facing an acute shortage of temporary accommodation in the borough due to the huge demand placed on its short supply of accommodation. As a result the Council is finding it increasingly difficult to discharge its housing duties placed on it by the Housing Acts to existing secure tenants, housing register applicants and those that are homeless and have applied to it for accommodation under HA 1996.

For this reason, it is the Council’s decision that - taking all the factors of your client’s own case into account - it will not provide your client with temporary accommodation during the review process”.

It is against the decision not to provide interim accommodation pending the outcome of the substantive review set out in this letter that Mrs Abdi seeks judicial review.

She relies upon three grounds, namely that the decision was unlawful because:

Mr McGuire for the Claimant submitted that the Part VII statutory scheme properly construed draws a clear line between the first instance (Section 184) decision on the application for housing assistance, and the review process under Section 202: all matters up to the Section 184 decision being for a first instance decision-maker, and all matters after the Section 184 decision being for the reviewer. Therefore, “Mr Ugwu ought not to have involved himself in any aspect of the decision-making process once a review had been sought” (Written Submissions, Paragraph 5(c)).

Mr McGuire accepted that there was no express statement in either Part VII or the relevant review regulations that applications for accommodation pending review are to be dealt with at reviewing officer level, but he submitted that the scheme of the Act looked at as a whole indicates that this was Parliament’s intention. In support he relied upon the following:

However, I cannot accept these submissions, for the following reasons.

For these reasons, I consider that the Part VII scheme clearly allows an authority to identify an appropriate person to make decisions on its behalf, save for a decision in respect of a review of a Section 184 decision which, for understandable reasons, where the reviewer is to be an officer of the authority, there is a restriction such that it must be an officer senior to the original decision-maker and an officer not involved in that original decision. It does not require all matters after the Section 184 decision (including any application for temporary accommodation pending a review decision) to be considered and determined by an officer within that restricted class.

Administrative decision-making must be conducted fairly and impartially, although it does not necessarily require a mechanism for independent findings of fact or a full appeal (Runa Begum v London Borough of Tower Hamlets [2003] UKHL 5, [2003] AC 430 at Paragraphs 46-7).

Such fairness includes an absence of actual or apparent bias, the proper test for which is now well-settled: Porter v Magill [2001] UKHL 67, [2002] 2 AC 257 at Paragraphs 102-3, as formulated by Ward LJ in Feld and Pour at Paragraph 11:

“The court must first ascertain all the circumstances which have a bearing on the suggestion that the [decision-maker] was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that here was a real possibility… that the [decision-maker] was biased.”

Therefore, public perception of the possibility of unconscious bias is the key (Lawal v Northern Spirit Ltd [2003] UKHL 35, [2003] ICR 856 per Lord Steyn at Paragraph 14): the hypothetical member of the public chosen for the task being “fair-minded and informed”, and “neither complacent nor unduly sensitive or suspicious” (Lawal per Lord Steyn at Paragraph 14 approving the formulation of Kirby J in Johnson v Johnson (2000) 201 CLR 488 at Paragraph 35).

Mr McGuire for the Claimant submitted that, in this case, although the Claimant did not suggest that Mr Ugwu was actually biased, such a member of the public would conclude from the appearance of things that that there was a real possibility that Mr Ugwu would have been biased when he made the decision to refuse Mrs Abdi interim accommodation pending determination of the review. That is because, in making such a decision, he was bound to take into account the “the merits of [her] case that the authority’s original decision (i.e. [his own] Section 184 decision) was flawed” (see Paragraphs 9-10 above): and, in doing so, he would have to evaluate Mrs Abdi’s criticism of that decision. In coming to the Section 184 decision, he had already decided that Mrs Abdi’s credibility was poor. That would put him into an invidious position such that (it was submitted on Mrs Abdi’s behalf) a fair-minded and informed observer would consider that his impartiality would have been impaired to the extent that his decision could not properly be regarded as unbiased.

The appearance of bias in Part VII decision-makers (particularly, those entrusted with Section 202 reviews) was considered by the Court of Appeal in Feld and Pour.

Mr Feld suffered from chronic fatigue syndrome and other medical conditions. In his application for housing assistance, he contended that he required accommodation with more than one bedroom. The authority offered him a one-bedroomed flat: and on review the authority’s only reviewing officer concluded that a one-bedroomed property was sufficient. Following the involvement of the Local Government Ombudsman, the authority made a second offer of accommodation, but again in the form of a one-bedroomed flat. Mr Feld requested a review, which was conducted by the same reviewing officer who again decided that the flat offered was suitable. As this was a decision on a review, Mr Feld appealed to the county court on the basis that the reviewer was biased, because she had carried out the first review and her second decision had been taken only after criticism had been levelled at her by the ombudsman. The judge dismissed the appeal, and Mr Feld appealed to the Court of Appeal.

Mrs Pour applied for housing assistance and was offered a studio flat. After a review, she appealed to the county court: and that appeal was withdrawn on the basis that the authority would undertake a further review. That was conducted by the same reviewing officer, and she came to the same decision, i.e. that the accommodation offered was suitable. It is noteworthy that, second time round, the reviewer in this case appears to have been reviewing exactly the same decision on exactly the same evidence. Mrs Pour successfully appealed to the county court, who found that a fair-minded and informed observer would conclude that there was a real possibility of bias. The authority appealed, and their appeal was consolidated with that or Mr Feld.

In terms of approach to the issue of bias, Ward LJ said (at Paragraph 44):

“In judging whether that is a real as opposed to fanciful risk [of bias], the informed observer will bear in mind that this is an administrative decision which by the will of Parliament is placed in the hands of a senior officer of the local housing authority who has been trained to the task and brings expert knowledge and experience of the local housing authority’s work to bear on the decision-making process. That officer knows the plight of the homeless, knows of the council’s duty and knows of the stock of housing from which that duty can be satisfied. The decision-maker is not a judge but the decision-maker is taken by the will of Parliament to be competent and conscientious.”

Ward LJ went on to identify four matters that the fair-minded and informed observer would particularly have in mind:

In relation to these matters, that observer would particularly consider the following:

What fairness requires is “essentially an intuitive judgment” (R v Home Secretary ex parte Doody [1994] 2 AC 531 at page 560: cited with approval by Ward LJ in Feld and Pour at Paragraph 47). Mr McGuire submits that a fair-minded and informed observer considering all the facts of this case would consider there to be a real possibility that, when considering the application for temporary accommodation, Mr Ugwu might unconsciously defend his own previous decision (or give improper weight to that decision) and thus not be impartial. However, having taken into account the guidance given in Feld and Pour and having carefully considered the circumstances which are said to give rise to bias, I do not agree. The factors set out above which the equable observer would take into account weigh heavily in the opposite direction. In my judgment a fair-minded and informed observer would not consider there any real possibility of bias in Mr Ugwu making the decision on an application for temporary accommodation pending a decision on a review of his own Section 184 decision.

I can deal with the final ground shortly. It was not pressed at the oral hearing and, in my view, with good reason.

The Claimant claims that the Section 184 decision is fatally flawed, in that the Council was not entitled to refuse the application “simply because an applicant is unable to provide all the documentary proof requested”, as “that inability does not excuse the authority from carrying out its statutory functions to make all necessary enquiries”. It is submitted that, given the flawed nature of this original decision, the Section 188(3) decision not to grant temporary accommodation (which took the Section 184 decision into account in the manner I have described) was itself necessarily flawed.

The enquiries that are necessary to enable the authority to decide whether applicants are eligible for housing assistance, including their scope and scale, are largely a matter for the authority themselves: R v Royal London Borough of Kensington & Chelsea ex parte Bayani (1990) 22 HLR 406. Furthermore, although the duty to make enquiries falls upon the authority, an applicant has a duty to include all relevant information in is application: Porteous v West Dorset District Council [2004] EWCA Civ 244, [2004] HLR 30.

It is clear from the evidence - particularly Mr Ugwu’s notes - that Mr Ugwu made some efforts to investigate this matter, including contacting Ms Halima Ali Abdi who, it is alleged in this claim (although not so clearly by Mrs Abdi when she made the housing application to the Council: see Paragraph 16 above), was the householder of the house from which Mrs Abdi was made homeless. She said that Mrs Abdi had never stayed with her. Mr Ugwu also contacted a person who said he was Mrs Abdi’s brother, at the same telephone number as Mrs Abdi gave as her own. He told Mr Ugwu that he lived in Kilburn and Mrs Abdi had never stayed there with him. Mrs Abdi refused to give any details of where she had stayed in the 9 months she had been in the UK, or with whom she had stayed.

In making his findings, Mr Ugwu took into account that Mrs Abdi lacked credibility. For example, she was claiming to have been pregnant when she left Somalia 12 months before and was still pregnant with an estimated delivery date of July 2007. From this, Mr Ugwu deduced that she was not telling him the whole truth (Statement 18 June 2007, Paragraph 17(b)). This was a deduction he was clearly entitled to make on the evidence before him.

Mr Ugwu did not decide that Mrs Abdi was homeless simply because she could provide documentary proof of her homelessness. He made enquiries from which he took the view - open to him to take in the evidence he had gathered - that Mrs Abdi was deliberately withholding information concerning her housing arrangements and, as he was unable to carry out any further enquiries without the withheld information, that on the evidence available to him he was not satisfied that she was homeless or in need of housing.

Therefore, it cannot be said that the Section 184 decision is flawed in the manner suggested by Mrs Abdi: or that Mr Ugwu acted outside the bounds of his discretion in the manner in which he approached the application for interim relief. Indeed, when looked at as a whole, his letter of 22 May 2007 (giving his Section 188(3) decision and reasons) shows that, in coming to his decision, he properly considered and took into account all matters which Mohammed identifies should be taken into account. Although, as Mr Ugwu’s letter of 22 May makes clear the review will be a matter for the reviewing officer, it cannot be said that either the Section 184 or Section 188(3) decision was obviously or otherwise legally flawed.

In short, the application for review on the ground of merits is meritless.

This application fails. Formally, I shall: