May, R (on the application of) v Birmingham City Council

Throughout the period of the review I continued to reside with my children at my grandmother's house. I had applied to go onto the Council's waiting list for accommodation and an agreement was reached between myself and my grandmother that myself and my two children could stay with her in her three bedroomed property for an indefinite period - until I was offered accommodation from the Council's waiting list. I did not consider myself to be homeless during the time spent with my grandma as the living situation was fine.

However, in November 2010 there was an unexpected breakdown in the relationship between myself and my grandmother which led to my grandmother requesting me to leave her home. This led me to apply as homeless to the Council."

In consequence the claimant applied to the defendant authority for accommodation as a homeless person and filled in a form on 25 November 2010. In that form, at section 5, she stated that the address where her homelessness occurred was the address where she and her children had been living with her grandmother in Birmingham.

"Is your homelessness due to DV [domestic violence] and/or harassment?"

The claimant answered "no".

"What is the main reason for homelessness?"

The claimant's answer was by the reference number 02. That is a reference to the standard form reason being "other relatives or friends no longer willing/able to accommodate".

"There was some argument and my nan told me to leave the property. She said she cannot accommodate me and my children any longer. My children attend school in Castle Vale."

That statement was certified by the claimant to be true and complete.

"On 25/11/2010 you approached Birmingham City Council seeking advice or assistance in obtaining accommodation. You state that you were homeless from 29 William Cook Road, Birmingham B8 2HS due to being asked to leave by your grandmother ... due to overcrowding and arguments.

During our telephone conversation on the 14/12/10 you advised that since leaving your accommodation at 23 Walker Crescent, Slough ... SL3 7GB, you confirmed that you have been residing at your grandmother's address on a temporary basis.

In reaching my decision I have taken into account whether there has been a relevant change in your circumstances. I am not satisfied that there has been a relevant change in your circumstances, as you have confirmed that you have been residing at your grandmother's address on a temporary basis....

I therefore do not believe there has been a relevant change in fact since your Review Decision dated 12th February 2010. I consider that the information provided requesting a new homeless application has already been considered and fully addressed in your Review Decision Letter. I therefore consider that the original discharge duty decision dated 19th January 2010 still stands."

The letter informed the claimant that she could request a review within 21 calender days of receipt of that letter.

"My reasons for moving to Birmingham from the last settled address ... was that I was subject to domestic violence from my ex husband. I felt very fearful for the safety of myself and my 2 children. I felt vulnerable as I had no family in the area that I could receive support from. I felt that due to not having support as I was going through a difficult time I needed to be near to my family in Birmingham. This is why I came to Birmingham as my support was there. It was agreed with my nan that she will be able to accommodate me and my 2 children.

The relationship worked well with my nan until the 25/11/10 where she no longer could accommodate me. This is when my situation changed and found myself and my children to be homeless. "

In the same statement the claimant said:

"You have stated in your review submitted on 7 January 2011, that your Grandmother agreed she would accommodate you when you came to Birmingham. I do not consider this a relevant fact. You came to Birmingham on 5 October 2009, and approached your local Neighbourhood Office 10 days later as homeless. An appointment for you to complete a homeless application was then made for 27 October 2009. I am satisfied from the above information that your move to Birmingham, and the arrangement to stay with your Grandmother was only temporary. Your extended stay with your Grandmother was then enforced following Birmingham City Council's discharge of duty once you refused an offer of accommodation. You remained with your grandmother for a further 9 months, were the relationship had reached a point where she no longer willing to accommodate and consequently asked you to leave, prompting a second homeless application form.

On 14 December 2010 you spoke to Cherilyn Hibbert of the Homeless Team, and it was confirmed your circumstances were the same as your previous application as you were still residing at your Grandmother's on a temporary basis. I am satisfied there are no new facts to consider on your new Homeless Application that render your circumstances different from your previous application. The facts of your circumstances are that you and your two children were homeless from your Grandmother's at the time of your previous review decision, and on your most recent homeless application, you are still homeless from your Grandmother's where you have been residing temporary.

I am satisfied that your current circumstances and reasons for homelessness have previously been assessed, and subsequently you were made an offer of accommodation under section 193 of the 1996 Act. A review of the decision to discharge duty was conducted by an independent Review Officer, who determined the offer of accommodation was suitable for you to accept, and the decision was made to Uphold the Discharge of Duty. You have re-approached as Homeless, and I am satisfied the facts of your second application are indistinguishable from the original application."

"The Authority has failed to investigate, to date, our client's occupation at her grandmother's house and in particular whether that period of occupation was sufficient to give rise to a new incidence of homelessness. No consideration was given as to the nature of our client's occupation or of the agreement entered into with our client and her grandmother sufficient to assess whether Mrs May had occupied premises at William Cook Road as settled intervening accommodation. Similarly, our client is plainly asserting that her eviction from her grandmother's was not anticipated. Our client's occupation of William Cook Road did not come to an end at the end of any agreed term but due to sudden and unforeseen circumstances. No investigation has been made in relation to these facts and in relation to whether our clients eviction from her grandmother's constitutes a supervening element sufficient in itself to create a new incidence of homelessness. Your further investigations are required to encompass these issues and also deal with any new facts arising from the current homelessness."

In the concluding paragraph of that application it was said on the claimant's behalf:

"It is therefore evident that the Review Officer has considered whether [her] stay at her grandmother's equated to a change to the facts of her case. The Review Officer also considered whether the Homeless Officer was right in her approach in this matter. There has been no change in facts."

The letter later continued:

"As you are aware, if there is no change in facts of an applicant's case, and the reasons for homelessness remain the same as a previous homelessness application, we are not obliged to accept a new homeless application....

After considering both of Mrs May's homelessness applications, and after confirming with Mrs May that the application dated 12 May 2011 is based on exactly the same facts as her first homeless application dated 27 October 2009 (and the subsequent application dated 25 November 2010), I must advise you that we do not consider there has been any change in the facts of your client's case, and we will not be accepting the homeless application dated 12 May 2011."

If the local housing authority have reason to believe that an applicant may be homeless or threatened with homelessness, they shall make such inquiries 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."

"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."

"In March 1994 the applicant and her six children were evicted from their rented accommodation and she applied to the local authority for accommodation as a homeless person. Pending the determination of her application, the local authority provided them with temporary accommodation at a guest house. In June 1994 the authority refused her application on the ground that, although she was homeless and in priority need, she was homeless intentionally. The applicant continued to live at the guest house for a further year and paid the weekly rent of £514 with the housing benefit that she received. In July 1995 the authority informed her that the rent payable at the guest house was higher than other comparable rents and that therefore her housing benefit would be reduced to £250 per week.

The proprietor of the guest house informed the applicant that she would have to vacate her rooms if she did not pay the full rent. In August 1995 she applied again to the local authority for accommodation as a person threatened with homelessness. The authority refused to consider the application and make fresh enquiries pursuant to section 62 ..."

(Of the then Housing Act 1985, which is the equivalent to section 184 of the 1996 Act.) They did so on the ground, amongst others, that they have made non statutory inquiries. They were satisfied that there was no material change since the determination of the application in 1994 and therefore the decision that the applicant was intentionally homeless still stood.

"The problem is this. When a local authority, having discharged their statutory duties in relation to one application for accommodation, then receive a second application from the same applicant, are they bound in all circumstances to go through the whole statutory inquiry procedure and provide interim accommodation or is there a 'threshold test' which the second application must satisfy if it is to be treated as an application under the Act?

It is Harrow's case that a person making a second application must demonstrate a change of circumstances which might lead to the second application being successful and it is for the local authority to decide whether that test has been satisfied ...

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 section 62 the statutory duty to make inquiries arises if (a) a person applies for accommodation and (b) 'the authority have reason to believe that 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 someone who lacks the capacity to do so ... Moreover when an applicant has been given temporary accommodation under section 63 and is then found to be intentionally homeless, he cannot then make a further application based on exactly the same facts as his earlier application ... But those are very special cases when it is possible to say that there is no application before the local authority and therefore the mandatory duty imposed by section 62 has not arisen. But in the present case there is no doubt that when Mrs Fahia 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 guest house which, for one year, she had been occupying as the direct licensee of the guest house proprietor, paying the rent for that accommodation. She was reimbursed the amount of the rent by way of housing benefit but the fact was that she had occupied premises as a licensee for a year. It is impossible to say that there has been no relevant change in circumstances at all.

In the circumstances, I agree with the judge and the Court of Appeal that there was no short cut available to Harrow by way of so-called 'non statutory enquiries'."

"The effect of the reasoning of the House of Lords in Fahia is that, at least under Part III of the 1985 Act, on receipt of what purports to be an application, an authority are bound to make inquiries, if they have reason to believe that the applicant is or may be homeless, unless the purported application can be shown to be no application . The only relevant basis upon which a purported subsequent application may be treated as no application, according to Fahia at p 1402, appears to be where it is based on 'exactly the same facts as [the] earlier application'.That is a rather different formulation from the 'material change of circumstances since the original decision'..."

Neuberger LJ then proceeded to examine the possible distinction between the two tests or approaches in more detail to identify the differences between them. At paragraph 46 he said:

In passing I should note that at paragraph 45 Neuberger LJ had also made the observation that the circumstances of the subsequent application must, at least in the absence of unusual facts be taken to be those revealed by the document by which the subsequent application was made.

"... it is clear as a matter of ordinary language that, once there is a genuine and effective application, and once the authority are satisfied that the applicant is or may be homeless, or threatened with homelessness, the operative part of section 183 is engaged, and the 'following provisions' become effective. Those provisions include section 184(1), which plainly obliges the authority to make inquiries in relation to the matters identified in paragraphs (a) and (b) thereof. So far as paragraph (a) is concerned, eligibility is governed by section 185. As to paragraph (b), the potential duties consist of an interim duty, set out in sections 188 to 189, and final duties, set out in 190 to 193."

At paragraph 50 of his judgment Neuberger LJ said:

"The notion that a purported subsequent application would be an application for the purposes of section 183, unless it was based on precisely the same facts as an earlier application when that earlier application was finally disposed of, largely (although I accept, no completely) avoids these problems. Such an interpretation is consistent with the reasoning in Fahia... it involves implying very little, if anything into section 183(1), and nothing into any other provision of the 1996 Act. It does not cut across 139(9). It could be said to involve a non-statutory inquiry with some concomitant delay. However, that inquiry would simply involve a comparison of the subsequent purported application with the already established facts applicable at the time the earlier application was disposed of.

Accordingly, it would be a simple inquiry and any consequent delay would, at least normally, be very slight. Further, as Lord Browne-Wilkinson implied in Fahia, one would expect it to be a relatively rare case where the facts of the two applications would be 'exactly the same.'"

At paragraph 60 of his judgment Neuberger LJ did accept the possibility that the subsequent application document purporting to reveal new facts may in fact disclose facts which are not new or at best or are "fanciful or trivial". However, leaving such cases aside, at paragraph 61 he concluded that even though factual assertions may turn out to be inaccurate or insufficient for the applicant's purposes on investigation, the authority must still treat the subsequent application as a valid application because that is what it is in light of the reasoning of the House of Lords in Fahia. In particular, he said:

"No authority acting rationally and properly directed in law could decide that the Claimant's further application for assistance, precipitated by homelessness caused by the breakdown by the Claimant's relationship with her grandmother, was identical to her first application which was precipitated by her fleeing Slough as a victim of domestic violence."

"At the date of a third application as homeless the claimant was asserting that she could no longer occupy her grandmother's home and was therefore homeless. That was the precise same reason for homelessness as was asserted at the date of her first application although the claimant had fled domestic violence in Slough. She was living temporarily with her grandmother but asserted she could not continue to do so. Likewise, at the date of the second application the reason for homelessness was the same. There is simply no change of the fact."

At paragraph 23 of the skeleton argument it is submitted that: