Edwards & Ors, R (on the application of) v Birmingham City Council

Birmingham City Council (“the Council”) is the largest housing authority in the country.

Each of the Claimants made an application to the Council for housing as a homeless person. They each claim that the manner in which the Council dealt with his or her application was unlawful; and, further, that that manner reflected systemic failings. They say that the Council, advertently or inadvertently, both in their own specific cases and generally, discourage and divert applications so that individuals are denied their statutory rights to have their situation properly inquired into and be given interim accommodation whilst those inquiries are being made.

There are four claims before me. In two cases, Rachel Edwards and Vernica Cole, on 28 April 2015, Haddon-Cave J granted permission to proceed and interim relief. At a hearing on 16 July 2015, I refused the Council’s application to set aside that grant. In Yasmin Saeed, on 7 May 2015, Knowles J refused permission to proceed. On 16 July 2015, I directed that the renewed application for permission be listed for oral hearing and, if permission be granted, the substantive hearing should follow immediately. I also directed that the application for permission in the fourth case, Marian Noworol, not yet considered, should also be listed for a rolled-up hearing. I heard each of those extant applications together.

At that hearing, Zia Nabi and Daniel Clarkeappeared for the Claimants; and Andrew Arden QC, Andrew Dymond and Riccardo Calzavara appeared for the Council. I thank them all for their contribution.

A local housing authority’s duties towards those in its area are found primarily in Parts VI and VII of the Housing Act 1996 (“the 1996 Act”). All statutory references in this judgment are to the 1996 Act, unless otherwise appears.

Part VI governs the allocation of council housing, i.e. housing accommodation owned by the relevant local housing authority. It requires the authority to have a scheme for determining priorities and procedures in the allocation of their housing (section 166A(1)). Subject to statute and any regulations made by the Secretary of State (section 166A(10)), an authority may devise its own scheme for allocation based upon principles it has decided to apply (section 166A(5)); but it is required then to allocate housing in accordance with that scheme (section 166A(14)). One of the relevant statutory requirements of any scheme is that set out in section 166A(3):

“As regards priorities, the scheme shall… be framed so as to secure that reasonable preference is given to –

(a)

people who are homeless (within the meaning of Part VII);

(b)

people who are owed a duty by any local housing authority under section 190(2), 193(2) or 195(2)… or who are occupying accommodation secured by any such authority under section 192(3);

(c)

people occupying insanitary or overcrowded housing or otherwise living in unsatisfactory housing conditions…”.

So, in allocating its own housing stock under Part VI, an authority has to take account of, and give reasonable preference, to homeless people for which it is responsible.

The Council owns approximately 63,000 housing units. It offers a “choice-based” allocation system, known as “the Choice Lettings Scheme”, under which people who qualify are able to bid for properties, and the bidder with the highest number of points (awarded on the basis of need and other considerations) is offered the property. To that extent, applicants have a choice of properties. In addition, “management bids” can be placed by the Council itself on behalf of those towards whom it owes a housing duty and who are not bidding (or bidding successfully) for themselves.

When compared with demand, there is a very considerable shortfall of available units. For the year 2014-15, there were 4,859 new lets compared with about 22,500 Part VI applicants seeking accommodation. There is a shortfall across the board, but the scarcity of larger properties is particularly striking: in 2014-15, there was a “waiting list” of nearly 2,500 applicants for 117 four-bedroom units available, and 1,667 applicants for just 7 units with five or more bedrooms. Just from these bare statistics, it is clear that, in exercising its Part VI functions, the Council faces formidable challenges.

Part VII of the 1996 Act defines “homeless”, and governs the provision of assistance to those who are homeless by housing authorities in England. It makes separate provision for housing authorities in Wales, and for various categories of persons from abroad, but neither of those feature in these claims.

It has been properly recognised that the duties imposed on housing authorities by Part VII are part of the social welfare scheme, intended to confer benefits on vulnerable people at the public expense on grounds of public policy (see, e.g., O’Rourke v Camden London Borough Council [1998] AC 188 at page 193D-E per Lord Hoffmann). The reverse side of this coin is that, for those people, the provisions are intended to be “a lifeline of last resort” (R v Hillingdon London Borough Council ex parte Puhlhofer [1986] AC 484 (“Puhlhofer”) at page 517C-D per Lord Brightman).

The first statute to require authorities to assist homeless people was the Housing (Homeless Persons) Act 1977 (“the 1977 Act”), under which a person was “homeless” if, and only if, he had no accommodation which he was entitled to occupy (section 1).

Section 3 of the 1977 Act, under the heading “Preliminary duties of housing authorities in cases of possible homelessness etc”, provided (so far as relevant):

“(1)

If:

(a)

a person applies to a housing authority for accommodation or for assistance in obtaining accommodation; and

(b)

the authority have reason to believe that he may be homeless or threatened with homelessness;

the authority shall make appropriate inquiries.

(2)

In subsection (1) above ‘appropriate inquiries’ means:

(a)

such inquiries as are necessary to satisfy the authority whether the person who applied to them is homeless or threatened with homelessness; and

(b)

if the authority are satisfied that he is homeless or threatened with homelessness, any further inquiries necessary to satisfy them:

(i)

whether he has a priority need; and

(ii)

whether he became homeless or threatened with homelessness intentionally.

(3)

…

(4)

If the authority have reason to believe that the person who applied to them may be homeless and have a priority need, they shall secure that accommodation is made available for his occupation pending any decision which they may make as a result of their inquiries…”.

These dual duties (a duty to make inquiries, and a duty to provide interim accommodation whilst doing so), based upon the criterion of the authority having “reason to believe” that the applicant may be, amongst other things, homeless, have featured in all subsequent statutory provisions for housing the homeless. They lie at the heart of these claims.

In the 1977 Act, “homeless” was defined in terms of entitlement to occupy a property, without reference to the standard of that accommodation and whether or not it was appropriate or reasonable for the person to continue to occupy it. Thus, the meaning of “homeless” in this statutory context mirrored the generally accepted ordinary usage of the word: for all intents and purposes, “homeless” meant “roofless” in the sense of being without a legal entitlement to occupy any accommodation. Accordingly, in Puhlhofer, the House of Lords held that a couple who lived with two young children in a guest house, without (e.g.) cooking or laundry facilities, could not be homeless within the statutory definition, despite the inadequacy of the accommodation for their needs.

These provisions were transposed across into the Housing Act 1985 (“the 1985 Act”), which repealed the 1977 Act, the duty to inquire finding its way into section 62 and the duty to provide interim accommodation into section 63 of the 1985 Act. However, Puhlhofer prompted Parliamentary intervention, in the form of section 14 of the Housing and Planning Act 1986, which inserted a new section 58(2A) into the 1985 Act, to the effect that:

“A person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for a person to continue to occupy.”

Neither the 1985 Act nor the amendments to it changed the nature or strictness of the dual duties to which I have referred, or the “reason to believe” criterion which triggered them. Therefore, since 1986, “homeless” in this statutory context has been a term of art; and an authority faced with an application for accommodation or assistance with accommodation, under what is now Part VII of the 1996 Act, has been required to consider whether it has reason to believe that the applicant is or may be “roofless”, and, if not, whether it has reason to believe that the applicant may be in accommodation which it is not reasonable for him to continue to occupy (i.e. “homeless at home”); or, alternatively, is threatened with being homeless in either of these senses.

These provisions (including the amended definition of “homeless”) were in their turn transposed across into the current 1996 Act, by which the relevant provisions in the 1985 Act were repealed. Thus, in defining “homeless”, section 175 of the 1996 Act provides:

“(1)

A person is homeless if he has no accommodation available for his occupation, in the United Kingdom or elsewhere, which he

(a)

is entitled to occupy by virtue of an interest in it or by virtue of an order of a court

(b)

has an express or implied licence to occupy, or

(c)

occupies as a residence by virtue of any enactment or rule of law giving him the right to remain in occupation or restricting the right of another person to recover possession.

(2)

…

(3)

A person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for him to occupy.

(4)

A person is threatened with homelessness if it is likely that he will become homeless within 28 days.”

Sections 176-7 give some assistance with regard to the application of section 175.

Section 179 requires every local authority to “secure that advice and information about homelessness, and the prevention of homelessness, is available free of charge to any person in their district”.

Section 183 provides for important “gateway” criteria. It states that:

“(1)

The following provisions of this Part apply where a person applies to a housing authority in England for accommodation, or for assistance in obtaining accommodation, and the authority have reason to believe that he is or may be homeless or threatened with homelessness.

(2)

In this Part –

‘applicant’ means a person making such an application,

‘assistance under this Part’ means the benefit of any function under the following provisions of the Part relating to accommodation or assistance in obtaining accommodation…

(3)

Nothing in this section or the following provisions of this Part affects a person’s entitlement to advice and information under section 179 (duty to provide advisory services)”.

Section 184 is the first substantive “reason to believe” provision, with which these claims are primarily concerned. It provides:

“(1)

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.

…

(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…

(6)

Notice required to be given to a person under this section shall be given in writing and, if not received by him, shall be treated as having been given to him if it is made available at the authority’s office for a reasonable period for collection by him or on his behalf.”

In the meantime, in addition to the duty under section 179 to make advice and information about homelessness available to the applicant, to which I have already referred, the authority has an interim duty to accommodate under section 188(1), the second relevant “reason to believe” provision. It provides:

“If the local authority have reason to believe that an applicant may be homeless, eligible for assistance and has a priority need, they shall secure that accommodation is available for his occupation pending a decision as to the duty (if any) owed to him under the following provisions of this Part.”

Whether an applicant is “eligible for assistance” relates to an applicant’s immigration status: it does not feature in these claims, and I need not consider it further in this judgment. These claims concern the other two specified criteria – that an applicant is or may be (i) homeless or threatened with homelessness, and (ii) in priority need. “Homeless” is defined in section 175 (see paragraph 15 above). Section 189 defines those in priority need by reference to categories, such as a pregnant woman; a person with whom dependent children reside; or a person who is vulnerable as a result of old age, mental illness or handicap, or physical disability.

The duty to provide interim accommodation under section 188(1) ceases when the authority’s decision on the homeless application is notified to the applicant in writing, after which the authority has a power (but not a duty) to secure accommodation for the applicant pending a decision on any review (section 188(3)).

Sections 184 and 188 therefore set out the interim duties on a housing authority where it has reason to believe that an applicant may be homeless, namely a duty to make inquiries to ascertain if the applicant is in fact homeless and (if so) in priority need; and, if the authority has reason to believe the applicant may be homeless and in priority need, to provide him and his family with accommodation in the meantime, whilst those inquiries are being pursued. The duties are “interim” in the sense that they are imposed from the time the authority has a reason to believe the relevant matters, until it determines the homeless application.

Sections 193 and following make provision for the full or main duty imposed on the authority, after the inquiries are concluded and the homeless application determined. Notably, where the authority is satisfied that an applicant is homeless and has a priority need – and is not satisfied that he became homeless intentionally – it has a duty to secure that accommodation is available for occupation by the applicant (section 193(2)). That obligation ceases only in the circumstances set out in section 193(5), (6) and (7), e.g. if the applicant (i) refuses an offer of accommodation which the authority is satisfied is suitable for the applicant (section 193(5)), (ii) becomes homeless intentionally from the accommodation made available for his occupation (section 193(6)(b), (iii) accepts an offer of accommodation under Part VI or of an assured tenancy in the private sector (section 193(6)(c) and (d)), or (iv) refuses a final offer of accommodation under Part VI or (in some circumstances) an offer of an assured shorthold tenancy made by a private landlord (section 193 (7) and (7AA)-(7AD)). Where the applicant is not homeless, but the authority is satisfied that he is threatened with homelessness, its duties are set out in section 195: broadly, the authority is required to take reasonable steps to secure that accommodation does not cease to be available for the applicant’s occupation (section 195(2)).

Where an applicant does not have a local connection with the area of the housing authority to which he has applied for homelessness assistance, and does have a local connection to the area of another authority, his application for assistance may be referred by the authority to which he made the application to the other authority (sections 198-199).

An applicant has a right to request an internal review of any decision of an authority as to the full duty owed to him under sections 193 and following; but not a decision in relation to interim accommodation under section 188 (section 202(1)). The procedure for such a review is set out in section 203. As I have indicated, an authority’s duty to provide interim accommodation under section 188 ceases when its decision on the homeless application is notified to the applicant, even if the applicant seeks a review of that decision: pending a decision on the review, the authority has a mere power to secure interim accommodation (section 188(3)).

If an applicant is dissatisfied with a decision on a review – or if he is not notified of such a decision in the time prescribed under section 203 – he may appeal on a point of law only to the county court (section 204). It is well-settled that that appellate jurisdiction of the county court under section 204 is a public law jurisdiction exercisable on traditional public law or Wednesbury grounds (see Bubb v Wandsworth London Borough Council [2011] EWCA Civ 1285 (“Bubb”) at [21], citing Runa Begum v TowerHamlets London Borough Council [2003] UKHL 5 at [7] per Lord Bingham). If an appeal is made, then the authority’s power to provide interim accommodation continues until that appeal is determined (section 204(4)).

Importantly, by section 206 (which falls in Part VII):

“A local authority may discharge their housing functions under this Part only in the following ways –

(a)

by securing that suitable accommodation provided by them is available,

(b)

by securing that he obtains suitable accommodation from some other person, or

(c)

by giving him such advice and assistance as will secure that suitable accommodation is available from some other person.”

Therefore, where an authority is under a duty to secure accommodation for a homeless person under section 188 or section 193, it must secure “suitable” accommodation. Whether accommodation is “suitable” is an evaluative matter for the authority to determine. However:

Finally, by section 211, where a housing authority has reason to believe that there is a danger of loss or damage to personal property of an applicant, and has a duty to accommodate an applicant under section 188, then the authority must take steps to prevent loss of that property.

By Section 182, in exercising its functions relating to homelessness, a local authority must have regard to guidance given by the Secretary of State. The current guidance is found in the Homelessness Code of Guidance (July 2006) (“the Code”), which gives guidance on (amongst other things) the form of the application, the duty to inquire and the duty to provide interim accommodation. The following are of particular relevance to this claim.

Paragraph 6.4 makes clear that:

“Housing authorities should ensure that the implications and likely outcomes of the available housing options are made clear to all applicants, including the distinction between having a priority need for accommodation under Part VII and being in a ‘reasonable preference’ category for an allocation of housing under Part VI. Authorities must not avoid their obligations under Part VII (especially the duty to make inquiries under s184), but it is open to them to suggest alternative solutions in cases of potential homelessness where these would be appropriate and acceptable to the applicant.”

Paragraphs 6.15-6.16 of the Code particularly concern the duty to make inquiries:

“6.15

The obligation to make inquiries, and satisfy itself whether a duty is owed, rests with the housing authority and it is not for applicants to ‘prove their case’. Applicants should always be given the opportunity to explain their circumstances fully, particularly on matters that could lead to a decision against their interests, for example, a decision that an applicant is intentionally homeless.

6.16

Housing authorities should deal with inquiries as quickly as possible, whilst ensuring that they are thorough and, in any particular case, sufficient to enable the housing authority to satisfy itself what duty, if any, is owed or what other assistance can be offered. Housing authorities are obliged to begin inquiries as soon as they have reason to believe that an applicant may be homeless or threatened with homelessness and should aim to carry out an initial interview and preliminary assessment on the day an application is received. An early assessment will be vital to determine whether the housing authority has an immediate duty to secure accommodation under s188.... Wherever possible, it is recommended that housing authorities aim to complete their inquiries and notify the applicant of their decision within 33 working days of accepting a duty to make inquiries under s184. In many cases it should be possible for authorities to complete the inquiries significantly earlier.”

With regard to the duty to provide interim accommodation, the Code says (emphasis in the original):

“6.5

If a housing authority has reason to believe that an applicant may be eligible for assistance, homeless and have a priority need, the authority will have an immediate duty under s188 to ensure that suitable accommodation is available for the applicant (and his or her household) pending the completion of the authority’s inquiries and its decision as to what duty, if any, is owed to the applicant under Part VII of the Act. Chapter 7 provides guidance on the interim duty to accommodate. Authorities are reminded that ‘having reason to believe’ is a lower test than ‘being satisfied’.”

…

6.6

Applications can be made by any adult to any department of the local authority expressed in any particular form; they need not be expressed as explicitly seeking assistance under Part VII…”

…

7.3

The threshold for the duty [to provide interim accommodation] is low as the local authority only has to have a reason to believe that the applicant may be homeless, eligible for assistance and have a priority need. (See paragraph 6.5 for guidance on the ‘reason to believe’ test.)”

The provisions of Part VII and its predecessors have been considered by the courts on many occasions. From the cases, the following propositions can be derived.

By virtue of section 183, there are two “gateway” criteria for Part VII, i.e. two criteria which have to be satisfied before the provisions of Part VII come into play, namely (i) a person must “[apply] to a local housing authority… for accommodation, or assistance in obtaining accommodation…”; and (ii) “the authority must have reason to believe that he is or may be homeless or threatened with homelessness”.

With regard to the first criterion, although “application” is nowhere defined, it is clear that there must be an application before any obligations of an authority arise under Part VII and the provisions make the assumption that there will be an application. For example, section 183(2) defines “applicant” in terms of “a person making such an application”, i.e. an application for accommodation or assistance in obtaining accommodation. However, an application under Part VII can be in any form, and need not be in writing (see, e.g., R v Chiltern District Council ex parte Roberts (1990) 23 HLR 387 at page 392 per Pill J; and R (Aweys and others) v Birmingham City Council [2007] EWHC 52 (Admin) (“Aweys (HC)”) at [8] per Collins J). That is now reflected in paragraph 6.6 of the Code (quoted in paragraph 34 above). Consequently, in Bury Metropolitan Borough Council v Gibbons [2010] EWCA Civ 327 at [30]-[31], it was held that, where an authority receives an application for accommodation under Part VI from which it has reason to believe that the applicant is or may be homeless or threatened with homelessness, an application under Part VII has been “made” in the sense that the authority’s obligations under Part VII are triggered. This “relatively indulgent attitude” to form by the legislature reflects the fact that those who are homeless or threatened with homelessness include some of the most vulnerable members of society which the legislation is designed to protect (R v Northavon District Council ex parte Palmer (1994) 26 HLR 572 (“Palmer”) at page 582 per Roger Toulson QC sitting as a Deputy High Court Judge (as he then was) (Palmer was appealed to the Court of Appeal ((1995) 27 HLR 576); but none of the matters from Mr Toulson’s judgment to which I refer in this judgment were considered on appeal); and see also Rikha Begum v TowerHamlets London Borough Council [2005] EWCA Civ 340 (“Rikha Begum”) at [57] per Neuberger LJ (as he then was), from which the quotation comes).

Paragraph 6.6 of the Code also expressly provides that applications can be made “to any department of the local authority”. That guidance reflects the authorities on the point, e.g. R v TowerHamlets London Borough Council ex parte Ferdous Begum; R v TowerHamlets London Borough Council ex parte Lutfur Rahman [1993] QB 447 (“Ferdous Begum (CA)”) at page 460B-C per Lord Donaldson MR:

“Whether he applies to the right or the wrong department or authority should not matter. That department or authority should either itself deal with the application or pass it on to what it considers to be the correct department or authority and should tell the homeless person what it has done. It should not tell that person to apply elsewhere. The game of ‘pass the parcel’ has no place in this field.”

See also page 456A-B per Butler-Sloss LJ, who referred to the predecessor of paragraph 6.6 of the Code, namely paragraph 3.2 of the then-current (1991) code to that effect. These comments were made in the context that many authorities split their housing functions under Part VI and Part VII between different departments, and an authority cannot rely upon the fact that the possibility of homelessness was raised with a department not specifically dealing with Part VII applications to deny that an application was “made” (see, e.g., Palmer at page 581). Before me, there was some discussion as to whether a Part VII application could be “made” to a library assistant or park keeper; but those circumstances do not arise in any of the claims or other cases relied upon before me, and would inevitably be fact-specific. I need not consider them further here.

Turning to the second threshold condition, paragraphs 6.5 and 7.3 of the Code specifically emphasise that the local authority only has to have a reason to believe that the applicant may be homeless to trigger the duty to inquire (under section 184), and reason to believe that the applicant may be homeless and in priority need to trigger the duty to provide interim accommodation pending those inquiries (under section 188). That threshold is low and, indeed, clearly low by design, in view of the vulnerable individuals it is intended to protect (see R (M) v Hammersmith and Fulham London Borough Council [2008] UKHL 14 at [36] per Baroness Hale). It is a hurdle patently lower than the authority “being satisfied” as to the fact of those matters (which is the section 193 threshold in respect of the applicant in fact being homeless, in priority need and not intentionally homelessness, which triggers a final, full duty to accommodate).

That low threshold has to be considered in the context of another proposition that derives from both the Code (especially paragraphs 6.5 and 6.16: quoted at paragraphs 33-34 above) and the authorities, that, once an effective application has been made and the authority has reason to believe that the applicant is or may be homeless or threatened with homelessness, section 183 is engaged and the provisions that follow (including the duties to inquire and, if the authority has reason to believe the applicant is or may be in priority need, to provide interim accommodation) become immediately effective (see, e.g., Rikha Begum at [49] per Neuberger LJ). An authority is not entitled to defer or delay these duties, to allow time (e.g.) to persuade the individual to mediate (Robinson v Hammersmith and Fulham London Borough Council [2006] EWCA Civ 1122 at [42] per Jonathan Parker LJ, and at [45] per Jacob LJ), or to engage in inquiries outside the statutory scheme into whether the applicant is indeed homeless etc (R v Harrow London Borough Council ex parte Fahia [1998] 1 WLR 1396 at pages 1401G-1402F per Lord Browne-Wilkinson; and Rikha Begum at [61] where Neuberger LJ referred to “the manifest disapproval in Fahia of non-statutory inquiries”). Once the authority has reason to believe that the applicant is or may be homeless or threatened with homelessness, a duty to make the statutory inquiries required by section 184 immediately arises and it cannot engage in non-statutory inquiries designed to (or which in fact) emasculate, dilute or “short-cut” the statutory requirements. This important principle led the Court of Appeal in Rikha Begum to conclude that, where an applicant makes a second homeless application, the housing authority is bound to accept and consider that subsequent application if it had been properly made, i.e. if it is made other than on exactly the same facts, even if the authority considers there has been no material change in the applicant’s circumstances. That is now directly reflected in paragraph 6.27 of the Code.

The low threshold, and the requirement for immediacy, also led Collins J to say, in Aweys (HC) at [8]:

“In the vast majority of cases, the making of the application will mean that it is difficult if not impossible for the council not to believe that the applicant may be homeless or threatened with homelessness. Furthermore, no particular form of application is prescribed…. If it is apparent from what is said by an applicant (for there is no requirement that an application be in writing) or from anything in writing that he may be homeless or threatened with homelessness, the duty is triggered. Thus if a person complains to a council that the conditions in his existing accommodation are so bad that he wants a transfer or needs to find somewhere else, it is likely that the duty will arise because of section 175(3) even if there is no application based specifically on homelessness. Furthermore, there is no power to defer the inquiry which has to be carried out…”.

Collins J was here considering the section 184 duty to make inquiries – he went on to consider the further duty to provide interim accommodation, to which I shall shortly return.

I agree that the duty to make statutory inquiries under section 184 is lightly triggered; and that is so whether the applicant says that he is (or is threatened to be) “roofless” or “homeless at home” to which the same statutory formula equally applies. However, in my respectful view, that does not mean that every housing complaint to an authority will necessarily require the authority to make section 184 inquiries. The authority is required to focus on whether it has reason to believe that the individual may be homeless or threatened with homelessness, because he is either roofless or homeless at home. If a person claims to be roofless, then the authority is entitled to ask him questions to clarify his housing status as such. Equally, the authority is entitled to question a person who claims that he is homeless at home, to clarify whether, in fact, there is reason to believe that the accommodation occupied by that person is such that it may not be reasonable for him to continue to occupy it. It is simply not the case that every complaint about the condition of a property – of which the Council, and no doubt other housing authorities, receive very many – gives rise to such a reason to believe, despite the lowness of the threshold. Where the complaint is about the condition of the property, the authority will often be able to proceed on the basis that the condition (even as described to them by the complainant) is reparable, and it will not be unreasonable to expect the complainant and his family to continue to live in the property until the remedial works have been carried out.

Furthermore, even where a duty to inquire arises, the manner in which the authority complies with that duty (including the form of the inquiries and time spent over them) is essentially a matter for the authority itself, subject to guidance and the usual public law constraints including the bounds of reasonableness. What is reasonable will of course depend upon all of the circumstances, including the urgency and vulnerability of the applicant inherent in homelessness applications. R v Camden London Borough Council ex parte Gillan [1988] 21 HLR 114 (“Gillan”) – a case relied upon by Mr Nabi, which I consider further below (see paragraph 61) – is an example of how cautious the courts are in finding that a scheme designed to carry out its Part VII duties and adopted by a housing authority is outside the generous ambit granted to an authority in such matters.

What the authority cannot do is defer consideration and a decision on the issue of whether it has reason to believe that the person may be homeless or threatened with homelessness, whilst it conducts further, non-statutory inquiries designed to (or with the consequence of) defeating the intent of the statutory provisions by avoiding its immediate duty to make statutory inquiries.

Whether an authority has, in a particular case, unlawfully avoided its duty to inquire will depend upon the facts and circumstances of that case. However:

However, a housing authority’s interim duties do not end with the obligation to make inquiries: if the authority has reason to believe that the applicant may be homeless and may have a priority need, then, by virtue of section 188, it has a duty to secure interim accommodation pending a decision as to what full duty to house him (if any) that authority has under the later provisions, e.g. section 193. Once the obligation to secure interim accommodation has arisen under section 188, it remains on the authority until the authority has completed its inquiry under section 184 and notified the applicant of the resultant duty to house him, if any. The engagement of section 188 is, as the Code says (Introduction, paragraph 15), “an important part of the safety net for people who have a priority need for accommodation and are unintentionally homeless”.

As I have explained (see paragraphs 28-29 above), by virtue of section 206, section 188 interim accommodation must be “suitable”. Following the post-Puhlhofer amendment in 1986, there was uncertainty over the relationship between (i) the definition of a “homeless” person which included a person who had a roof over his head but who was in accommodation that it was not “reasonable for him to continue to occupy”, and (ii) the duty on an authority to secure such a person “suitable” accommodation. This question arose: if an authority has reason to believe that a person is or may be “homeless”, so it is or may be unreasonable for him to continue to occupy his current accommodation, does it automatically follow that, subject to him satisfying the other relevant conditions, the authority must immediately and without delay secure “suitable” housing for him elsewhere? The question is of considerable practical importance, not only in the context of a finding by an authority that an applicant is in fact homeless and in priority need (and so entitled to accommodation under the authority’s full section 193(2) duty), but also where, on an application but before its determination, the authority has reason to believe that the applicant may be homeless and in priority need and thus entitled to accommodation under section 188. In both cases, the entitlement is to “suitable” accommodation.

This relationship was considered by the House of Lords in an appeal from the Court of Appeal decision ([2008] EWCA Civ 48) to uphold the decision of Collins J in Aweys (HC) (Birmingham City Council v Ali; Moran v Manchester City Council [2009] UKHL 36 (“Aweys (HL)”).

Each of the six claimants in Aweys had a large family and needed a four- or five-bedroom property to be properly housed but, as I have already indicated (paragraphs 7 and 8 above), such properties in Birmingham are in very short supply. The Council eventually accepted that each family was homeless on the basis that it was not reasonable for them to continue to occupy the properties they each occupied, because of overcrowding and/or the condition of the property; and that it owed a full duty under section 193 to secure accommodation for them. However, the Council considered that it could discharge its duty by leaving each family in their existing home until a suitable property became available. The claimants challenged that alleged failure of the Council to comply with its section 193 duty; and also its policy with regard to allocation of housing for permanent letting.

At first instance, in accordance with what was then generally considered to be conventional thinking, Collins J held that a person is “homeless at home” only if it would not be reasonable for him to stay in his current accommodation for another night; and, he continued (at [21]):

“For the homeless at home, their existing accommodation can never be regarded as suitable, even for a short time, since they are only homeless if it is not reasonable to expect them to continue to live there.”

This approach was approved by the Court of Appeal ([2008] EWCA Civ 48 at [62]-[65]), Arden LJ stressing the inherent urgency in homelessness cases.

The approach of the House of Lords was different. Baroness Hale, in a speech with which the whole House agreed, held (at [36]) that the statutory language used in section 175(3) effectively to define homeless at home (“A person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for him to continue to occupy”) looks to the future as well as the present. Therefore, although section 175(3) is met if it is unreasonable for a person to stay in the accommodation for even one more night, it is also met if it would not be reasonable to expect him to continue to occupy the accommodation on a relatively long-term basis, which he would have to do if the authority did not accept him as homeless. The House of Lords thus broadened the concept of “homelessness”.

However, Baroness Hale considered that “suitability” is a different concept, there being different degrees of suitability such that what is suitable for occupation in the short-term may not be suitable in the medium term, and what is suitable for occupation in the medium term may not be suitable for occupation in the long-term. Therefore, an authority is entitled to find that a person is homeless because he cannot be expected to continue to occupy the accommodation he is in; but at the same time conclude that that same accommodation is suitable for his short-term occupation whilst the authority finds him accommodation that is more suitable for his longer-term needs. However, the authority cannot leave that person in that accommodation indefinitely, because there will come a time when the accommodation will not be “suitable” in the discharge of the authority’s duty to accommodate him.

Although Aweys (HL) was a case concerning the full duty to accommodate under section 193, the analysis and conclusion equally apply to the interim duty to accommodate under section 188 – although, as Baroness Hale herself acknowledged (see Aweys (HL) at [18]), what is regarded as suitable for discharging the interim duty may of course be different from what is regarded as suitable for discharging the more open-ended full duty.

A further issue arose during the course of the hearing before me, namely as to the standard and nature of the review to be applied by the court to the question of whether a housing authority has reason to believe that (i) an applicant is or may be homeless or threatened with homelessness such that Part VII applies, by virtue of section 183; (ii) an applicant may be homeless or threatened with homelessness such that a duty to make inquiries arises, under section 184; and (iii) an applicant may be homeless or threatened with homelessness and may have a priority need such that an interim duty to accommodate arises, under section 188. Relying upon the principles set out in Khera v Secretary of State for the Home Department; Khawaja v Secretary of State for the Home Department [1984] 1 AC 74 (“Khawaja”), Mr Nabi submitted that whether a housing authority has reason to believe the relevant matters is an issue of precedent fact for the court to determine; whilst Mr Arden contends that it is an issue for the relevant authority, challengeable only on conventional public law grounds as set out in Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 (“Wednesbury”) as later developed.

In my view, this question does not specifically arise in the four claims before me, because the claims do not generally allege that the Council made a considered decision that it had no reason to believe the applicant may be homeless etc which requires review by the court; but, rather, that the Council erred in law by misconstruing and/or misapplying the section 183 gateway criterion that “the authority have reason to believe that [the applicant] is or may be homeless or threatened with homelessness”. For example, it is said that the relevant Council decision-maker in one case addressed the question “Is there reason to believe the applicant is homeless?” (or, even, “Is the applicant homeless?”), whereas the correct question at the interim stage is “Is there reason to believe that the applicant is or may be homeless?”; and/or addressed the question “Does the applicant have accommodation tonight?”, which does not properly address the question of whether it is reasonable to continue to occupy accommodation in fact available to the applicant, and in any event the question of whether it is reasonable to continue to occupy accommodation legally requires more forward-looking than just that particular day. It is uncontroversial that questions of law are hard-edged questions capable of only one answer, which it is for the court to decide.

However, the issue as to the standard and nature of the review to be applied by the court to the question of whether a housing authority has reason to believe was fully argued before me, and it is only right that I respond to it.

It is true that, for the purposes of section 183, whether the housing authority has reason to believe that an applicant is or may be homeless etc is a threshold question in the sense that, unless it does have such a reason to believe, then the obligation to consider the duties under the following sections of Part VII does not arise. However, Mr Arden submitted – and Mr Nabi conceded (if I might respectfully say, correctly) – that the standard and nature of review of a decision by an authority that it does not have reason to believe the relevant matters is a matter of statutory construction of sections 183, 184 and 188. The construction of the formula used in each of the sections must have been intended to be the same. For convenience, I shall focus upon the key issue of whether the housing authority has reason to believe that an applicant may be homeless – although the same analysis applies equally to all of these “reason to believe” provisions.

Mr Nabi concedes that, in these provisions, Parliament could have provided that it is for the relevant housing authority to determine whether it has reason to believe that the applicant may be homeless, subject only to challenge on Wednesbury grounds. But, he submitted, the formulation used does not in fact make such provision. On its true construction, the issue is one in respect of which it is the ultimate responsibility of the court to answer.

In support of that proposition, Mr Nabi submitted that, on their true construction, the words used on their face pose a jurisdictional threshold question, that is in nature “hard-edged”, objective and binary, in the sense that either there is or there is not “reason to believe” that the applicant may be homeless. That is a question to which there is only one correct answer. The court is able, and is required by the statute, to answer that question for itself, on the basis of the information available to the housing authority at the relevant time. If Parliament had intended the question to be one for the housing authority, subject only to challenge on public law grounds, it could and would have used one of the well-established formulae making that clear. For example, it could have provided that the section 184 duty was triggered “if the local housing authority reasonably believes that an applicant may be homeless etc”, a formulation used by the House of Lords in Khawaja itself as an example of a matter in respect of which the identified administrative decision-maker has some latitude and which can only be challenged if its decision strays outside the range of decisions to which a decision-maker might reasonably come (see, e.g., at pages 103E-105B, and 106B, per Lord Wilberforce).

Mr Nabi submitted that the authorities support that construction, and provide binding (or, alternatively, at least highly persuasive) authority to the effect that the question of whether the duty to inquire has been triggered is one which the court itself must determine. He particularly relied upon two cases.

Gillan concerned the then-equivalents of sections 184 and 188, namely sections 62 and 63 of the 1985 Act (see paragraph 14 above). The defendant housing authority operated a service whereby persons could only apply for assistance under the housing the homeless provisions in person to a single Homelessness Person Unit which was only open between 9.30am and 12.30pm on weekdays. The evidence was that, unless an applicant was at the unit when it opened at 9.30am sharp, then he may well not have his application dealt with that day; and would have to return the following day. There was no service outside those hours, including at night. It was contended on behalf of the plaintiff that a housing authority had a duty to take reasonable steps to hear and adjudicate upon applications made to it by persons who may be homeless, including provision to receive such applications. The Divisional Court found that the authority had failed to comply with that duty. In giving judgment, May LJ (with whom Ian Kennedy J agreed) said (at page 121):

“… I prefer the approach that this is a matter of the pure construction of the statutory duty imposed by the Act upon the authority, and a pure question of fact whether that statutory duty has been complied with. I fully accept that once one gets past sections 62 and 63, and possibly when one has to pause on section 63 for a time, Wednesbury considerations may arise. But they have not arisen in the case of any of these applicants unless and until their applications have been received and are beginning to be considered pursuant to the statutory provisions by the local authority.”

Mr Nabi relies upon that passage.

The second case upon which he relies is Ferdous Begum (CA), in which the Court of Appeal grappled with the issue of whether a homelessness application could be made by a person lacking capacity. It was argued on behalf of the claimant by Robert Carnwath QC (as he then was) that “Who is an applicant?” is not a matter for the decision of the housing authority to be challenged only on Wednesbury grounds, but rather a jurisdictional fact as to the point at which the duties laid upon the authority come into existence (see page 457C-D). Staughton LJ (at page 461D) expressed no view on that issue; but Butler-Sloss LJ was persuaded that the submission made on behalf of the claimant was correct. She said (at page 459E-G):

“In my view the housing authority has to accept genuine applications and consider, on the facts revealed in the application and after any necessary inquiries, whether a duty arises under Part III of the [1985] Act [the equivalent of Part VII of the 2006 Act]. The housing authority has to establish the precedent fact, as it was described by Lord Fraser of Tullybelton in [Khawaja], that an application for housing, in however informal terms, has been made. The question whether an application has been made and whether the housing authority has erred in their approach to this case is a collateral question preceding the main decision-making process. Consequently I agree with Mr Carnwath that if he can demonstrate that the housing authority wrongly excluded an application, this court has the jurisdiction to substitute its own views.”

Lord Donaldson MR emphasised the same point (at pages 460E-461A):

“In my judgment section 62(1) of the [1985] Act contains a double-barrelled threshold or precedent question of fact which has to be answered in the affirmative if the local housing authority’s duties under Part III of the Act are to come into force. The first part of this question is whether a person has applied to it for accommodation in the sense which I have indicated. The second part is whether the authority have reason to believe that he may be homeless or threatened with homelessness. This is to be distinguished from the Part III duty which follows immediately afterwards in the same sentence, namely, to make such inquiries as are necessary to satisfy themselves as to whether he is homeless or threatened with homelessness. I cannot believe that Parliament intended that whether or not a local housing authority became subject to the duties set out in Part III of the Act should depend upon whether it happened to be credulous or incredulous, myopic or far-sighted. The intention must have been that an objective test should be applied. The authority’s decision on both aspects of this threshold question therefore falls to be reviewed not on Wednesbury principles but on Khawaja principles – does the evidence justify the conclusion…” (emphasis in the original).

The decision of the Court of Appeal was in the event reversed in the House of Lords (R v Oldham Metropolitan Borough Council ex parte Garlick; R v Bexley London Borough Council ex parte Bentum; R v TowerHamlets London Borough Council ex parte Ferdous Begum [1993] AC 509 (“Ferdous Begum (HL)”; but, Mr Nabi submitted, not on this point. The Court of Appeal ruling thus continues to be binding on me; or, at the very least, so highly persuasive that it is akin to being binding.

In the alternative, Mr Nabi submitted that, even if Wednesbury were the correct approach, then, given that the threshold would be so very low and the court would in any event be bound to conduct an intensified review because an applicant’s fundamental rights are involved, in any particular situation there would almost inevitably be only one answer that would be lawfully possible in the event of dispute. Consequently, the court would be bound to reach the same decision, whether it adopted the Wednesbury approach or that in Khawaja.

In response, in attractively succinct submissions, Mr Arden contended that, on the basis of the words in the statute themselves and authority, whether a housing authority has reason to believe that a person may be homeless etc is a question for the housing authority itself, which may be challenged only on Wednesbury grounds.

I find Mr Arden’s submissions on this issue compelling and persuasive, for the following reasons. Again, I shall focus upon the issue of whether the housing authority has reason to believe that an applicant may be homeless.

The condition set out in section 183, materially replicated in sections 184 and 188, is specifically:

“… [W]here… the [local housing] authority have reason to believe that an applicant… may be homeless or threatened with homelessness…” (emphasis added);

and not:

“Where there is reason to believe that an applicant may be homeless or threatened with homelessness.”

In my view, that is a flag that the question is one primarily for the housing authority.

Mr Nabi accepted that, if the provision had referred to the authority “having a reasonable belief” that the applicant may be homeless etc, that would indicate that the primary determination of whether the criterion were met would be for the authority, subject only to a Wednesbury challenge. As I have indicated, that concession was properly made. But, in my view, whilst of course conceptually different, the formula “where the authority have reason to believe” is also more consistent with a value judgment for determination by the housing authority.

All of the Claimants claim to have been “homeless at home”: they do not say that they did not in fact have accommodation (i.e. that they were roofless), but rather that they ought to have been deemed homeless by virtue of section 175(3) under which a person is not to be treated as having accommodation “unless it is accommodation which it would be reasonable for him to occupy”. The question of whether the Council had reason to believe that a particular applicant may have been homeless therefore raised the issue as to whether it was or may have been reasonable for the applicant to continue to reside in his current accommodation. As Mr Nabi rightly concedes (see paragraph 81 of his skeleton argument), “reasonableness” in this context involves the exercise of evaluation or judgment by the authority on the facts of a specific case. That classically lends itself to a range of appropriate answers. In this context, it is particularly clear that the evaluation required is one for which the local authority is uniquely well-placed to make, because section 177(2) expressly provides that, in determining whether is it reasonable for a person to continue to occupy accommodation, “regard may be had to the general circumstances prevailing in relation to housing in the district of the housing authority to whom he has applied for accommodation or assistance in obtaining accommodation” (see paragraph 16(iii) above).

My view that the formula used is more consistent with a value judgment for determination by the housing authority appears to have been shared by other judges. In Bubb at [19], Lord Neuberger of Abbotsbury MR used the so-called threshold questions in sections 184 and 188 as exemplifying such value judgments:

“…. [U]nder Part VII of the 1996 Act, a number of questions which fall to be considered can be said to involve value judgments which are expressly assigned to the local authority (e.g. whether an applicant is homeless under section 184; and whether an applicant has priority need under section 188)… ”

I accept that:

Bubb is clear; but it is not the only case in which the higher courts have said that, subject to a Wednesbury challenge, it is for a housing authority to determine whether it has reason to believe that an applicant is homeless etc for the purposes of section 184 and 188. Indeed, far from it.

In a speech with which the whole House agreed in Puhlhofer (at page 518B-E), Lord Brightman expressed concern at “the prolific use of judicial review for the purpose of challenging the performance by local authorities of their functions” under the (then) 1977 Act. He continued:

“Parliament intended the local authority to be the judge of fact. The Act abounds with the formula when, or if, the housing authority are satisfied as to this, or that, or have reason to believe this, or that…. When the existence of non-existence of a fact if left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely.” (emphasis added).

In De Falco v Crawley Borough Council [1980] 1 QB 460, it seems to have been common ground and (said Bridge LJ at page 479F) “clearly right” that the court’s power to review any decision of a local authority (including decisions under the predecessors of section 184 and 188) “is not appellate but supervisory. The court can only interfere in accordance with the well-known principles which find their classic expression in the judgment of Lord Greene MR in [Wednesbury]”.

In De Falco, the court said, per curiam, that an individual affected by such a breach of duty could bring an action for damages and declaratory relief by way of ordinary claim in the county court or the High Court. De Falco was not appealed further. However, in Cocks v Thanet District Council [1983] 2 AC 286, on the plaintiff’s homelessness application, the housing authority provided him with temporary accommodation. The plaintiff duly brought proceedings in the county court for a declaration that the authority was in breach of duty to house him permanently. The case was transferred to the High Court for determination of the preliminary issue as to whether the claim could proceed in the county court, or whether it must be brought as a public law claim in the High Court. Milmo J considered that he was bound by De Falco, and therefore held that the claim could proceed by way of ordinary action. However, an appeal was leap-frogged to the House of Lords, where Lord Bridge gave the only substantive speech. He analysed the functions of housing authorities under the 1977 Act, as follows:

“These functions fall into two distinct categories. On the one hand, the housing authority are charged with decision-making functions. It is for the housing authority to decide whether they have reason to believe the matters which will give rise to the duty to inquire or to the temporary housing duty. It is for the housing authority, once the duty to inquire has arisen, to make the appropriate inquiries and to decide whether they are satisfied, or not satisfied as the case may be, of the matters which will give rise to the limited housing duty or the full housing duty. These are essentially public law functions. The power of decision being committed by the statute exclusively to the housing authority, their exercise of the power can only be challenged before the courts on the strictly limited grounds (i) that their decision was vitiated by bias or procedural unfairness, (ii) that they have reached a conclusion of fact which can be impugned on the principles set out by Lord Radcliffe in Edwards v Bairstow [1956] AC 14; or (iii) that, in so far as they have exercised a discretion (as they may be required to do in considering questions of reasonableness under section 17(1), (2) and (4), the exercise can be impugned on the principles set out in the judgment of Lord Greene MR in [Wednesbury]. All this is trite law and the contrary has, so far as I am know, never been argued in any case which has come before the courts under the 1977 Act”. (emphasis added).

Cocks was heard by the House of Lords before, but in the same month as, Khawaja. Lord Bridge was in each constitution of the House. Contrary to Mr Nabi’s suggestion to the contrary, although the plaintiff respondent did not appear in the House of Lords, the issue as to whether a court could substitute its own decision for that of the authority appears to have been expressly raised in the course of argument and was therefore before the House in Cocks (see page 289C-D). Nor am I persuaded that Lord Bridge’s reference to discretion in the context of section 17 of the 1977 Act – which, amongst other things concerned whether it was reasonable for the applicant to continue to occupy accommodation – restricts his comments to the extent that they allow a Khawaja approach to the question of reason to believe in this context. It seems to me to be inconceivable that, in Cocks, Lord Bridge intended anything other than to make clear that a determination by a housing authority that it has reason to believe that an applicant may be homeless, under what are now sections 184 and 188, is a question that is subject to challenge under traditional Wednesbury principles, as opposed to those set out in Khawaja.

Returning to Ferdous Begum, upon which Mr Nabi relied, Cocks was not referred to in any of the Court of Appeal judgments – although apparently cited in argument (see page 448C-D). It does not appear to have been referred to at all when the case proceeded to the House of Lords (where, again, Lord Bridge was a member of the constitution). It is unclear why it did not play a more prominent part in this later case.

Mr Arden readily conceded that, in Ferdous Begum (CA), as Mr Nabi contends, the majority of the Court of Appeal (Lord Donaldson MR and Butler-Sloss LJ) held that, not only whether a person is an applicant, but whether the authority has reason to believe that an applicant may be homeless etc is an issue of precedent fact for the court to decide. However, Mr Arden submitted, and I accept:

In relation to (ii), as Mr Nabi readily accepted, in Ferdous Begum (HL), the House of Lords held that the issue of capacity, central in that case, was an issue that Parliament had left to be evaluated by the housing authority, subject to challenge on Wednesbury grounds (see page 520F-G per Lord Griffiths). However, he submitted that the House of Lords decision was restricted to that narrow ground, leaving the comments of Lord Donaldson and Butler-Sloss LJ (whether ratio or obiter) undisturbed. I cannot accept that submission. First, even though I accept Mr Nabi’s submission that, if a person does not have capacity, then other statutory duties will kick in to protect his position, it seems to me less than rational for capacity to be a matter which the relevant housing authority should determine subject only to a public law challenge, but otherwise whether an applicant has met the criterion to make his way into Part VII is a matter for the court to determine on Khawaja principles. Second, reading the speeches of their Lordships as a whole, it seems to me that they did not leave any room for any part of the Court of Appeal judgments to remain standing. For example, Lord Griffiths, with whom the whole House agreed, stressed (at page 520H) that “these very immediate investigations and decisions are necessary to make the system work and they can only be carried out by the authorities concerned”. Lord Slynn (at page 521G), emphasised that the authority must consider, step by step, the matters referred to in the statutory scheme.

It also comes as some considerable comfort that the view to which I have come on this issue was shared by Mr Toulson sitting as a Deputy High Court Judge in Palmer. Having referred to Ferdous Begum (HL) and the first precondition of what is now section 184 – then section 62 of the 1985 Act – he continued:

“The second precondition is that the local authority should have reason to believe that the applicant may be homeless or threatened with homelessness. Again, it would be anomalous if Parliament intended to entrust to the local authority the decision regarding the first precondition but not the second. Further, the question whether a person is homeless depends, among other things, on whether he has accommodation ‘which it would be reasonable for him to continue to occupy’…. Therefore whether the local authority ‘have reason to believe’ that a person may be homeless may involve assessment of the quality of his accommodation. That is a matter for the local authority. Moreover, in [Cocks]…, Lord Bridge said, at page 292, in relation to the analogous provisions of the [1977] Act:

‘It is for the housing authority to decide whether they have reason to believe the matters which will give rise to the duty to inquire or to the temporary housing duty.’

On this issue, therefore, I accept the submission of the local authority that the existence of the facts necessary to give rise to a duty of inquiry under section 62 is a matter for determination by the local authority, and that the courts’ jurisdiction is not to decide the facts but only the more limited jurisdiction of judicial review.”

With that, I respectfully agree.

Mr Nabi submitted in the alternative that if, as I find, the threshold question as to whether a housing authority’s duties under section 184 and 188 have been triggered is subject to challenge only on Wednesbury principles, then this would not make any difference in practice from applying Khawaja because, as the threshold is very low and the court is bound to conduct an intensified review because fundamental rights are involved, in the event of dispute, it is all but inevitable that there will be only be one lawfully possible answer. In the recent cases of Kennedy v Information Commissioner [2014] UKSC 20 (especially per Lord Mance JSC at [51]-[55]) and Pham v Secretary of State for the Home Department [2015] UKSC 19 (see, e.g., per Lord Carnwath JSC at [60], Lord Mance at [95] and Lord Sumption JSC at [109]), the Supreme Court endorsed a flexible approach to judicial review, and emphasised that the common law does not insist upon a single, uniform standard of rationality once thought applicable for the purposes of the Wednesbury test. In the case of Part VII, the determination of an application of homelessness assistance is the determination of a civil right, for the purposes of article 6(1) of the European Convention on Human Rights (Fazia Ali v United Kingdom (2015) (Application No 40378/10)). Mr Nabi submitted that that narrows the scope for any housing authority decision-maker to a single decision.

Pham concerned the relationship between the common law concept of Wednesbury unreasonableness and the European concept of proportionality. As it had in Kennedy, the Supreme Court endorsed the conclusion of Professor Paul Craig (in “The Nature of Reasonableness”) (2013) 66 CLP 131) that “both reasonableness review and proportionality involve considerations of weight and balance, with the intensity of the scrutiny and the weight to be given to any primary decision-maker’s view depending on the context”, the advantage of the terminology of proportionality being that it introduces an element of structure into the exercise (see, particularly, Pham at [94]-[95], per Lord Mance with whom a majority of the court agreed). Lord Mance concluded (at [96]):

“In short, proportionality is – as Professor Dr Lübbe-Wolff (former judge of the Bundesverfassungsgericht which originated the term’s modern use) put it in ‘The Principle of Proportionality in the Case Law of the German Federal Constitutional Court’ (2014) 34 HRLJ 12 at pages 16-17 – ‘a tool assessment of reasonableness as a restriction’, ‘just a rationalising heuristic tool’. She went on, at page 16: ‘Whether it is also used as a tool to intensify judicial control of state acts is not determined by the structure of the test but by the degree of judicial restraint practised in applying it’. Whether under EU, Convention or common law, context will determine the appropriate intensity of review: see also Kennedy…”.

So, Lord Mance found (at [98]) that, in respect of a decision to remove British nationality and thus European citizenship:

“It is therefore improbable that the nature, strictness or outcome of such a review would differ according to whether it was conducted under domestic principles or whether it was also required to be conducted by reference to a principle of proportionality derived from Union law.”

Lord Carnwath (at [59]-[60] and Lord Sumption (at [108]-[109] relied upon a similar analysis, and arrived at a similar conclusion. Lord Sumption (at [105] onwards) in particular emphasised the extent to which common law Wednesbury reasonableness has imported significant elements of proportionality. He concluded (at [107]):

“It is for the court to assess how broad the range of rational decisions is in the circumstances of any given case. That must necessarily depend on the significance of the right interfered with, the degree of interference involved. And notably the extent to which, even on a statutory appeal, the court is competent to reassess the balance which the decision-maker was called on to make given the subject matter…. In some cases, the range of rational decisions is so narrow as to determine the outcome.”

Mr Nabi submitted that this is one such case.

However, in respect of the question of whether the local housing authority have reason to believe that a potential applicant for assistance with homelessness may indeed be homeless etc for the purposes of sections 183, 184 and 188, I am unconvinced that “the range of rational decisions is so narrow as to determine the outcome”. The relevant context here includes the following matters.

For the reasons I shall give in due course, the latitude which a housing authority has in considering whether it has “a reasonable ground for believing” that an applicant may be homeless etc on the evidence before it, is not a determinative issue in any of the four claims before me. It is therefore unnecessary for me to express a concluded view upon it. Suffice it here to say that I am at present unconvinced by the submission of Mr Nabi that a review taken on the basis of Wednesbury unreasonableness would necessarily arrive at the same conclusion as a review carried out on the basis of Khawaja.

I have been considering the latitude given to a housing authority when it is considering whether it has reason to believe that an applicant may be homeless etc. It seems to me that, within the Part VII statutory scheme, an authority has latitude in at least two other respects. I have already touched upon each (see paragraphs 28-29 and 43 above).

The way in which the Council has dealt with its responsibilities under Part VII has been the subject of several previous actions, in which the Council have been subject to significant criticism, notably Aweys, R (Kelly, Mehari and JI) v Birmingham City Council [2009] EWHC 3240 (Admin) (“Kelly”) and R (Khazai, Ebrahim, Azizi and Mirghani) v Birmingham City Council [2010] EWHC 2576 (Admin) (“Khazai”). Although Mr Arden submitted that these claims are now of historical significance only, Mr Nabi contends that some of the earlier deficiencies, criticised by the court in these cases, are effectively still extant. The cases consequently require some consideration in this judgment, albeit brief.

I have already referred to Aweys in some detail. Collins J held that homeless prevention measures adopted by the Council by way of “Home Options” advice and assistance which were designed to reduce the incidence of homelessness, whilst commendable in themselves, could not lawfully be used to defer consideration of a homeless application. Such advice and assistance had to be given in parallel to the obligatory Part VII steps (see [25]). There was also evidence that the Council was insensitive to the fact that, if it placed homeless persons on its housing register used for the purposes of Part VI, that could not in itself discharge its duties under part VII (see [26]). Furthermore, Collins J found that some Homeless Review Managers were apparently ignorant of the duties imposed by Part VII (see, e.g. [20(6)(b)]).

I heard Kelly in November 2009. Each of the three Claimants presented themselves to a Council Neighbourhood Office (“NO”) with evidence that gave the Council reason to believe that each may have been homeless and in priority need of accommodation – as was eventually conceded by the Council. In the case of Mr Kelly, I rejected the contention that the relevant Housing Needs Officer (“HNO”) carried out inquiries and found that the applicant had no priority need, concluding that he (and another officer consulted) failed to engage with section 188 or to address the correct criteria at all. I concluded that, if the officer had come to the only reasonable conclusion (namely that there was reason to believe that Mr Kelly was or may have been homeless and in priority need of accommodation) that would have triggered the section 188 duty to provide interim accommodation until the section 184 inquiries had run their course (see [20]). In Mr Mehari’s case, I concluded that the evidence demonstrated that the officer did not have section 188 in mind, when he ought to have done. Similarly, in the case of JI, which in the event did not require a decision by me, section 188 was again simply not considered when it should have been.

I found that these were not individual errors of particular officers, but rather illustrated systemic deficiencies. In particular, the Council had erred in having a practice or procedure which considered whether the applicant required “emergency accommodation”, rather than the statutory test. The homeless application form said that: “Upon completion of the interview, unless the applicant and the family are at risk of harm, they should be advised to return to the homeless address…”. The result was that the Council had a policy or a consistent practice that was intended to avoid, or at least had the effect of avoiding, its section 188 obligations. Thus, I said (at [40]):

“In my judgment, the failure of the Council to apply the section 188 criteria in the two cases was symptomatic of a general failure of their practice and procedures. The approach of the Council to their obligations under section 188 at the very least lacks legal coherence and a proper consideration of the relevant section 188 criteria. So far as the Council are concerned that failure had and, in so far as that practice continues, continues to have, the effect of avoiding their obligations under section 188 of the 1996 Act.”

As a result of Kelly, the Council reviewed their procedures, and a direction was issued by email to the relevant NO Service Delivery Managers and Officers, to cascade down to front line staff who would deal with applicants attending NO. The direction, in particular, encouraged referral of homeless applicant to other organisations. The lawfulness of that direction was challenged in Khazai, in which the Council accepted the direction was unlawful, in seeking to displace its Part VII duties under sections 184 and 188 with a reference to other support services. In his judgment, Foskett J remarked that the failure of the direction to measure up to the requirements of Part VII was obvious (see [27]). He declared it to be unlawful. Foskett J said (at [68]) that:

“I have no doubt that, if it has not occurred since March this year, a thorough review of the procedures adopted should be undertaken with the benefit of high level legal advice…”

As a result of the criticism received, mainly in Kelly, the Council appointed James Crawshaw as Head of the Homeless Service in August 2010 (about two months prior to Khazai); and, following internal restructuring, as Integrated Head – Homeless and Pre-Tenancy Service (“H&PTS”) in January 2012. He is in charge of the Council’s Homeless Service. The evidence in this claim as to how the Council handles homeless applications comes primarily from Mr Crawshaw’s statement of 29 September 2015 and its attachments; and references in this part of the judgment to Mr Crawshaw’s evidence are to that statement unless otherwise indicated. That which is described below is how Mr Crawshaw says the Council’s Part VII procedures do – or, at least, should – now work.

Mr Crawshaw frankly accepts the following:

For those Council staff involved in homelessness applications, although there is some guidance (e.g. notes to assist HNOs with the completion of the homeless application form), there is no procedural manual because, says Mr Crawshaw (paragraphs 59-60 and 169), (i) a homeless application under Part VII “does not lend itself to precise procedural stages”, (ii) it would immediately go out of date and be costly to keep under review and change, and (iii) each person who presents himself to the Council has his own combination of circumstances, and thus every case is unique and it would be impossible to cover every possibility. The Council thus “deliberately chooses not to have a homelessness manual” (paragraph 169).

Vital to the Council’s system for dealing with housing queries generally are their NOs, which each operate the Council’s Home Options service. At the time of Kelly, there were 32 NOs. That number has subsequently been reduced to eleven. Home Options is a general advice service, considered in Aweys (see paragraph 88 above), covering the whole gamut of queries that might arise in relation to housing issues, and may include advice on such matters as housing conditions, a referral to the Local Housing Team, a referral to the Private Sector Enforcement Team for assistance to prevent unlawful eviction, debt, housing benefit, financial assistance from the Homeless Prevention Fund, how to apply for Council housing under Part VI, the possibility of a home visit and mediation with friends or family, and emergency repairs or decant.

Four of the eleven NOs act as Housing Advice Centres (“HACs”), substantively dealing with homeless applications. In addition, the Council has established the Birmingham Youth Hub – an arm of the Council, run in partnership with the Council’s Children’s Services Department and a charity – which is designed to enable the Council’s homeless and children’s services better to work together. It gives advice and assistance to 16-25 year olds. In respect of the Council’s Part VII functions, for people within that age range, the Youth Hub has the same purpose as an HAC.

In practice, the majority of people who wish to make a homeless application simply attend an HAC or the Youth Hub – HACs receive over 180,000 inquiries per year – but a homeless applicant may first approach the Council in a number of other ways. For example:

Thus, generally, one way or another, a homeless applicant will attend an HAC for the purposes of making his Part VII application.

At the time of Kelly, as I have described, the Council had over thirty NOs, all of which acted as HACs. From March 2011, the number of HACs was reduced to four – Sparkbrook, Erdington, Northfield and Newtown – selected by reference to various criteria including accessibility. All except Newtown deal with homeless application on the day: Newtown only deals with homeless applications by appointment as described below. If a person attends Newtown HAC, and it appears that he may be homeless, in priority need and in need of accommodation that day, he is sent to one of the other HACs which will deal with him that day.

On attendance at one of the NOs which acts as an HAC, a person will be first seen by a reception or “first response” CSA. As I have described, in addition to dealing with Part VII applications, NOs deal with a wide-range of other matters, including housing disrepair, private rented sector issues, anti-social behaviour, applications to transfer and exchange, applications to be registered for Part VI housing and benefits and other financial assistance. The reception CSA might be able to deal with an individual’s inquiry himself. However, if there is a suggestion of a request or need for homelessness assistance, then the reception CSA will immediately refer the person to another, triage or “second response” CSA at the HAC, for interview, that day. As I understand Mr Crawshaw’s evidence (e.g. at paragraph 76), if there is any doubt as to whether there is reason to believe that the individual is or may be homeless or threatened with homelessness then the CSA will, or should, refer the person on.

If a person is so referred, the triage CSA sees the person and conducts a preliminary assessment. If it appears to the CSA that the person may be homeless and in priority need, and wants interim accommodation, then he immediately refers that person on to a Senior Housing Needs Officer (“SHNO”) at the HAC, that day. Again, if there is any doubt as to whether there is reason to believe that the individual is or may be homeless or threatened with homelessness, and in priority need, if the person wants interim accommodation then the CSA will, or should, refer him on. If the CSA does not refer a person to an SHNO that day, as I shall describe, then he fixes a future appointment for him to attend an HAC for the application form to be completed then.

Consequently, a CSA must refer an applicant to an SHNO that day unless he is satisfied that (i) the applicant is definitely not homeless and definitely not in priority need, and (ii) the applicant does not wish to have interim accommodation. I deal with how SHNO’s construe the need or wish for interim accommodation in terms of accommodation for that night alone (see paragraphs 114 and following below). I assume that CSAs construe it similarly.

The SHNO will make inquiries necessary for him to start (and, in so far as practicable, complete) an electronic homeless application form, and arrange for interim accommodation to be provided that day if the statutory “reason to believe” criterion are met and if the applicant wishes to have interim accommodation. Mr Crawshaw sets out the Council’s new policy on interim accommodation, since Kelly. He says:

“Since then, once it is recognised that an applicant may be homeless and may be in priority need, so that it has been recognised that Part VII is in play, it is the authority’s position that interim accommodation should always be offered, and must be provided if the applicant wants it.” (paragraph 49).

He emphasises the same point elsewhere in his statement:

“[I]f there is reason to believe that someone may be homeless and in priority need, temporary accommodation is always offered and, if the applicant wants it, provided.” (paragraph 5).

“[T]he Council has introduced a number of changes on the advice of myself and my management team. These include the following:

… Ensuring that interim accommodation is offered wherever there is reason to believe that an applicant may be homeless and in priority need.” (paragraph 55).

That, in substance, is also pleaded (see, e.g., paragraph 42(c) of the Council’s summary grounds in Mr Noworol’s case).

In the context of the claims before me concerning allegations that the Council has failed to comply with its duty to provide interim accommodation under section 188 to “homeless at home” applicants, this is an important expression of Council policy. The statute provides that, if an authority has reason to believe that the applicant may be homeless and in priority need, then it must secure that “suitable” accommodation is available for his occupation. As I have explained (see paragraphs 29 and 86(ii) above), that involves an evaluative exercise by the authority, which might conclude that the accommodation occupied by a homeless at home applicant is “suitable” for him to occupy temporarily, for the whole (or for at least a part) of the period in which the homeless application is being considered. However, the Council do not make an assessment of “suitability”. As a matter of policy, if it considers an applicant may be homeless and in priority need, then it will provide him with interim accommodation, if he requires it. If the applicant indicates that he does not require it – because (e.g.) he prefers to stay in his current accommodation, or at family or friends, until the homeless application has been determined – the accommodation the applicant voluntarily stays in is, equally, not assessed for suitability by the Council. This policy – of course, more generous than the statutory requirements – is key to an understanding of how the Council purport to comply with its statutory duty under section 188 to provide interim accommodation pending a housing application decision.

As I have said, the policy is that, if the Council considers an applicant may be homeless and in priority need, then it will provide him with interim accommodation, if he requires it. However, the evidence is that many applicants, although satisfying the section 188 criteria, prefer to remain in their current accommodation (if they have it) or stay with friends or family pro tem, whilst their homeless application is processed. In these circumstances, the Council does not seek to assess the current accommodation for suitability: it relies upon the applicant’s “self-certification” of the fact that the relevant accommodation is such that the applicant can reasonably be expected to stay there temporarily. Of course, as the Local Government Ombudsman’s report “Homelessness: How councils can ensure justice for homeless people” (July 2011) (“the LGO July 2011 Report”) emphasised (at page 5): “People must be made aware of their right to make an application if they wish to”. However, so long as the applicant is aware that he is entitled to interim accommodation until a decision is made on the homeless application – and so can make an informed initial decision, and knows that he can return to the Council at any time to request interim accommodation – there is nothing objectionable in this.

If the triage CSA decides that the person may be homeless but is not in priority need or does not in any event want interim accommodation, then he will take that person’s details and make an appointment at an HAC with an HNO, for a later date. The housing application form will then be completed at that meeting.

There is evidence that, in completing the form, until recently, HNOs were inserting the date of their meeting as the date of the homeless application. As Mr Crawshaw accepts:

“This is wrong and, having discerned this during the course of these proceedings, I issued a reminder… to relevant offices and officers that all applications by someone who it is considered may be homeless must be treated as made on the day this is first recognised, whether it is the day of presentation or – if the information provided as the time does not suggest the possibility of homelessness – some later date when that information is provided (which can include a call or letter from a solicitor or other adviser or a [pre-action protocol letter (“PAP”)]). If what is disclosed means that Birmingham ought to have recognised the application at an earlier time, the application may require back-dating.” (paragraph 83).

That earlier practice was clearly wrong, because the first recognition by the Council that the person “may be homeless or threatened with homeless” for the purposes of section 183 and 184 is when he presents himself at the HAC and the homeless interview is arranged: indeed, the interview is arranged precisely because it is recognised that the person may be homeless and thus the inquiry procedure under section 184 is triggered and must begin. Mr Crawshaw thus recognises that:

“… [A] homeless application should be registered as having been made once the CSA or SHNO first has reason to believe that the applicant may be homeless or threatened with homelessness and the time for making a decision runs from that date.” (paragraph 164).

The memorandum to which Mr Crawshaw refers was sent round in August 2015, since when, he says, the earlier practice has ceased.

Before me, there was some criticism about the length of time between the trigger and the date of the homeless interview appointment – and the Council accepted that this period was, in some cases, unfortunately long. However, as I have indicated (see paragraphs 43 and 86(i) above), the Council has a broad discretion as to how it complies with its obligations under Part VII. As long as the period between the Council first having reason to believe that an applicant is homeless and the homeless interview at which an HNO completes the electronic homeless application form is reasonable, in my view, the Council’s practice of arranging an appointment at a future date is not arguably unlawful. Whilst, upon the reason to believe criteria being satisfied, the duty to make inquiries arises immediately, the statute does not require the inquiries to take any particular course. Indeed, to have all substantive homeless interviews on the day that an applicant makes contact with an HAC (usually, of course, without notice) would be impracticable in terms of deployment of staff and other resources.

Here, I accept that “reasonableness” of time is in the overall context of there being some urgency: but, if the applicant may be in priority need and wishes to have interim accommodation, then he is entitled to it under section 188. It is noteworthy that the Council work to a target of 90% of homeless applications being determined within 33 days from the date it first has reason to believe the applicant may be homeless, that period of course incorporating the period between first recognition that an applicant may be homeless and his homeless interview. Paragraph 6.16 of the Code (set out at paragraph 33 above) stresses that the initial appraisal is important for the purposes of section 188. It suggests that authorities should “aim” to carry out an “initial interview and preliminary assessment on the day an application is received. An early assessment will be vital to determine whether the housing authority has an immediate duty to secure accommodation under section 188…”. This seems to me also to be the purport of:

The Homeless Application Form is electronic: it is found and completed by the SHNO or HNO on the Council’s computer system. It has various drop-down boxes, which to an extent lead the officer. It can only be completed by an SHNO or HNO. It does not exist (and, certainly, cannot be completed) in hard-copy form. It has to be completed on one of the Council’s computers. That generally happens at one of the four HCAs. However, acknowledging that some applicants will not be able to travel, the Council has four HNOs (“Visiting Officers”), who are able to visit an applicant and complete a homeless application form out of the office on a laptop computer.

The Homeless Application Form is a lengthy document, and is electronically accompanied by Guidance Notes for its completion and for “the assessment of homeless declarations”. Mr Nabi particularly focused on Question 29 in the form which, under the heading “Requirement for temporary accommodation”, asks:

“Are you able to remain at your current accommodation tonight?

Date you must leave your current accommodation:

…

NOTE: If you do not have anywhere to stay tonight, the following questions MUST be answered.

a)

Did you sleep rough last night?

Where did you sleep?

b)

Give reasons why you do not have anywhere to stay tonight?

c)

Has a request for temporary accommodation been made within the last 28 days? If yes… [there is then a table for insertion of the date, reason and outcome of such requests].

…”.

The Guidance Notes for the completion of the form are divided into three columns. The first sets out the questions officers should ask; the second gives guidance to interviewing officers; the third gives guidance to decision-making officers. For Question 29, the relevant guidance reads as follows:

I was referred to another document which is completed at a time prior to a decision being made on interim accommodation, namely the Temporary Accommodation Request Form. It is marked “[NO] staff to complete”; and its rubric says:

“This form is only to be completed where temporary accommodation is required tonight and a live Homeless Application exists.” (emphasis added).

Mr Crawshaw’s evidence explains how that form is used in conjunction with the Homeless Application Form (see below).

It is important to note that the Homeless Application Form is only completed by SHNOs and HNOs, in the context of a full homeless interview. CSAs do not have access to it. Mr Crawshaw explains that Question 29 does not mean that the Council only house those who would otherwise be roofless that night: the question is only part of a dialogue with the applicant, and the Council can and do differentiate “between those whose need for accommodation is urgent (same day) and those who can remain where they are for a period…” (paragraph 36). He further explains (at paragraph 46 of, and footnotes 38 and 39 to, his statement of 11 November 2015):

“The homelessness application itself contains a section on TA [i.e. temporary accommodation], which only opens (‘drops down’) if the applicant is asking for TA at the time it is being completed (first approach or appointment): that section has to be signed and is in terms which make it unnecessary for the applicant also to sign the TA Request. In these cases, therefore, the TA Request form is filled in but the applicant is not asked to sign it. Even if it is known at an appointment that an applicant will want TA in the near future, the drop down form will not be used and the applicant has to return the day it is needed, save in exceptional circumstances. Accordingly, when TA is sought after the application has been completed and signed without the TA section, this form will need to be signed by the applicant, which will normally be on the same day as the TA is to start.”

“We do not initiate TA until it is actually needed. TA is a very fast-moving commodity: what is available on a Wednesday may not be available on Thursday nor even will it be known what is available on Thursday. We cannot pay for a night’s accommodation that is not in use and there are other authorities trying to access the same resource – from as far away as London – and once accommodation is taken, perhaps on a moment’s notice, it may not become available again for weeks or even months. Until we know what TA is available on the day, therefore, we cannot tell the applicant where to go. Moreover, so far as practicable, we need to see the applicant at that point: the applicant who says on Wednesday that he needs TA from Thursday may have changed his mind or his circumstances may have changed; often, we cannot hold TA (without booking and paying for it) even for the time it would take to track an applicant down by phone and confirm that he still wants it.”

“In some cases, when we have advance notice of need for particular accommodation, e.g. for an exceptionally large family or for a disabled person, we might start the search early, and book it and even pay for it ahead of time if that is the only way to secure it – and if this arises after the homelessness application form has been completed, the same form will be used although ‘tonight’ will in that context be incorrect”

However, elsewhere in his evidence, Mr Crawshaw appears to accept that there has been an overemphasis on whether the applicant has accommodation for that one night. He says (paragraph 36, footnote 28 of his statement):

“… [F]ollowing a recent amendment (during the course of these proceedings) [the Guidance Notes in respect of completion of the Homeless Application Form] now suggests that once an appointment has been made, the applicant should be asked whether he has accommodation until the appointment and, if not, that there should be discussion as to until when, to ensure that the appointment takes place beforehand.”.

That evidence is ambivalent, as it is expressed in the context of Question 29 of the Homeless Application Form, which is completed by an SHNO or HNO, not by the triage CSA; and it is ambiguous as to whether the reference to “accommodation until the appointment” is a reference to (i) any accommodation (i.e. a roof) or (ii) accommodation that is suitable for the applicant to remain in until the homeless interview, and which the applicant is willing to remain in until then. However, in any event, it appears to be less than entirely consistent with his other evidence about temporary accommodation.

Nevertheless, Mr Crawshaw says that none of this detracts from the Council’s position (clearly confirmed in Mr Crawshaw’s evidence, the relevant parts being set out at paragraph 101 above) that, once it is recognised that an applicant may be homeless (in the extended, statutory sense of that term) and may be in priority need, interim accommodation will always be offered, and must be provided if the applicant wants it.

Caroline Darwin is an SHNO at the Erdington NO/HCA. She says that, when she explains temporary accommodation to applicants, she always says that it is likely that they would be placed first in hostel or bed and breakfast accommodation, and would later be placed in more suitable accommodation, given the difficulties of sourcing temporary accommodation and the fast turnover for it (paragraph 160 of her statement of 28 September 2015).

At some stage during the homeless application procedure, an applicant will have a Home Options interview, i.e. a discussion with a Council officer concerning his housing circumstances and problems generally, including options that resolve any housing issues and may prevent longer-term homelessness. The interview may be conducted by the triage CSA, or, if not and if there is an immediate referral to an SHNO, by him. If the triage CSA arranges a meeting with an HNO at a future date, the Home Options interview may take place with a CSA before or after the HNO meeting. A Home Options interview may result in a homeless application becoming unnecessary, either because it emerges during the interview that there is no homelessness issue or because the options discussed resolve the individual’s issues to the extent that he does not wish or need to pursue a homeless application. However, no doubt following Aweys in which the Council was criticised for delaying the processing of homeless applications while other options were explored (see paragraph 88 above), the Guidance Notes for SHNOs and HNOs make clear that “Home Options must be explored in parallel to the homeless investigation procedure” (page 31); and Mr Crawshaw stresses in his statement (paragraph 37):

“Whilst conducting the [Home Options] interview, the CSA or SHNO will always make clear to the applicant that this is additional to the applicant’s Part VII rights.”

As I have indicated, the Council have a target of making a decision on a Part VII application within 33 working days of the time it is recognised that the applicant may be homeless in 90% of cases (paragraph 109 above). Provision for this period is made in the Code, paragraph 6.16 providing:

“Wherever possible, it is recommended that housing authorities aim to complete their inquiries and notify the applicant of their decision within 33 working days of accepting a duty to make inquiries under s184. In many cases it should be possible for authorities to complete the inquiries significantly earlier.”

The period is also reflected in the Council’s published material. For example, in its leaflet “Help for Homeless People Service Standards”, under the discussion on “Apply for a home” (at page 6), it says:

“If we believe you are homeless or about to become homeless you may need to apply for a home (we call this your ‘homeless application’). When looking at your application for a home: We will aim to write to you within 33 days from the date of your application. If it going to take longer than this we will write to you to tell you.”

The 33 day period is a target: the Council is not committed to determining any particular case within 33 days. The Code is of course only guidance, which the Council must take into account but which is not binding upon it. Indeed, the target was set in 2006, when there was less constraint on public spending, and the Council say that, with lower levels of staff, at some stage it may be necessary to extend this target period. However, at present, it is the target and there is internal monitoring through general daily reports and weekly reports on all those in interim accommodation, which feed into one-to-one meetings between staff and their managers. Service managers discuss any case in which a decision has not been made within 20 days, and an SHNO is required to explain why a decision has not been reached in any particular case within 33 days (paragraph 121 of Mr Crawshaw’s statement).

The question of whether the duty to make inquiries under section 184, and/or the duty to provide temporary accommodation in the meantime under section 188, arise is one that is insensitive to financial constraints because “insofar as a balancing exercise between housing the homeless and conserving local authority resources is appropriate, it has been carried out by Parliament in enacting Part VII” (Hotak and others v Southwark London Borough Council and Solihull Metropolitan Borough Council [2015] UKSC 30 at [39] per Lord Neuberger): Parliament has determined when the duty arises. However, financial constraints on a housing authority may affect the manner in which it performs that duty which is a matter quintessentially for the authority itself. Mr Crawshaw says (at paragraph 47 of his statement of 27 September 2015) that the H&PTS had its budget cut from £5.2m to £3.7m in 2013-14, of which £0.75m of savings was provided by staff cuts. The service has to save an additional 10% in the period 2015-18. Such cuts (he says) have inevitably affected the manner in which the Council has been able to carry out its statutory functions, including the manner in which it carries out its duties under Part VII.

In respect of the various designations of Council officer to which I have referred, as I understand it, CSAs are a single designation and comprise far more than those only involved in homeless applications; and a particular CSA involved in homelessness at an HAC may work on reception or triage, depending on need. “Reception CSA” and “triage CSA” are therefore references to function, as opposed to designation or grade. Although CSAs have some functions in respect of Part VII (because a prospective applicant will have to see a reception CSA and a triage CSA to gain access to a Part VII decision-maker in the form of an SHNO or HNO), CSAs are not part of Mr Crawshaw’s H&PTS team, and do not have any authority to make decisions in relation to (e.g.) whether there is reason to believe that a person may be homeless and/or in priority need. That is why Mr Crawshaw accepts that they must pass on to an SHNO/HNO someone who has come into the HAC, unless there is no doubt that he is not homeless. SHNOs and HNOs are H&PTS team members. Both determine homelessness applications, i.e. make determinations as to whether a full duty to accommodate is owed. In addition, SHNOs (but not HNOs) make determinations under section 188, as to whether an individual in entitled to temporary accommodation.

In terms of numbers, the evidence is that HACs receive about 180,000 enquiries per year; about 5,250 homeless applications were accepted by the Council in 2014-15 – i.e. over 100 per week; and, on average, the Council secures temporary accommodation in about 40 cases per week (see paragraph 5 of Mr Crawshaw’s statement of 28 September 2015).

All of the Claimants are represented by the Community Law Partnership (“CLP”). The firm has regularly acted for those who have complained about and challenged the Council’s policies and practices in dealing with homelessness applications, including the claimants in Aweys, Kelly and Khazai.

Each of the four claims is in similar form. Part of the claim is based on the facts of the Claimant’s own case, which are to a varying extent contentious, especially in relation to the nature of some of the engagements between the Claimant and the Council. However, it is submitted that the Council breached its duties under Part VII in failing (in each case) to commence a statutory inquiry into the Claimant’s request for assistance with homelessness under section 184 and (in some cases) to secure that suitable interim accommodation is available under section 188. However, it is accepted that, although allegedly delayed, the Council has now determined each application and, in appropriate cases, has now offered suitable accommodation, and so is not in continuing breach. Therefore, Mr Nabi concedes that, since their issue, the four claims have become academic (paragraph 156 of his skeleton argument). No specific substantive relief is being sought in respect of any of the four claims.

However, in each case, there are also general complaints about and criticisms of the Council’s practices and policies when handling inquiries and applications from homeless people, the thrust of which is that the Council deliberately seeks to avoid its statutory duties and/or to delay complying with its obligations, or at least acts in such a way that it inevitably breaches or unlawfully increases the risk of breaching its statutory duties. The general part of each claim is, for all intents and purposes, the same; and it is said that the individual claims illustrate that the procedures currently employed by the Council (i) fail to reflect the urgent and immediate nature of the inquiries and interim accommodation duties mandated by Part VII, and (ii) employ a similar approach to interim accommodation as that declared unlawful in Kelly (paragraph 6 of Mr Nabi’s skeleton argument). These failings lead to “an unacceptable risk that applicants entitled to assistance under Part VII will not be dealt with lawfully” (paragraph 11(d) of that same skeleton argument). These systemic claims are also supported by reference to sixteen other cases in which no formal claim is made, but which (it is said) further illustrate systemic deficiencies. In respect of the four claims, the same relief is sought in each case, namely a general declaration that the Council’s procedures and practices when dealing with persons seeking assistance with accommodation fail to comply with its obligations under Part VII, and a general mandatory order that the Council implements procedures and practices that allow and facilitate compliance with those obligations, ensuring in particular that there is no delay in compliance with its obligation to investigate a homeless claim and its duty to provide suitable accommodation in the meantime obligations under section 184 and 188 respectively.

There is no doubt that, in the two cases in which permission to proceed has been obtained (Ms Edwards and Ms Cole), it has been granted on the basis that, at the substantive hearing, the Claimants’ general claims are in play. However, as I stressed at the hearing, this is not a public inquiry into the way in which the Council handles homeless applications. Such an inquiry is not the function of this court: there are more appropriate fora in which such inquiries into alleged maladministration can be made, e.g. the appointment of an inspector to report on an authority’s compliance with its obligation to secure improvement in the way its functions are exercised, “having regard to the combination of economy, efficiency and effectiveness (under section 10 of the Local Government Act 1999), or an investigation by the ombudsman into “an alleged or apparent failure in service which it was the authority’s function to provide” or “an alleged or apparent failure to provide such a service” (under section 26(1) of the Local Government Act 1974).

It is rather the function of this court to determine the claims before it, i.e. to determine whether (and, if so, the extent to which) the Council breached its duties under Part VII in each specific Claimant’s case. If I find the Council to have been in breach in one or more of the four cases – and, in my view, only then – do the general claims come into play. For example, if I find that the breaches in the individual cases evidence defects in the Council’s system, in the sense that it is adopting unlawful policies, practices or procedures, then some form of declaration in respect of the relevant policies, practices or procedures may be appropriate. I accept that the sixteen other cases relied upon by the Claimants may be relevant as to whether such systemic defects are proved, and whether any general declaratory relief is appropriate; but I am acutely aware that the applicants in those cases have not brought a claim or, if they have done so, such claims are not before me and those applicants are not parties before me. It would be inappropriate – indeed, it would be wrong – for me to make unnecessary findings in those cases which may prejudice their claims, one way or the other. The relevance of those cases to the claims before me is limited to the extent to which they support the proposition, relied upon by Mr Nabi, that the breaches of statutory duty as alleged and found in the four specific cases result from systemic defects in the policies, procedures or practices of the Council in complying with its statutory obligations under Part VII.

Therefore, I propose to deal first with the four claims before me, in turn. Having done so – and, having made findings in respect of the alleged breaches of statutory duty in those cases, if and insofar as is necessary, I shall review the other cases to determine the extent to which (if at all) those cases support the proposition that the breaches found are illustrations of systemic default on the part of the Council.

In respect of the individual claims, precisely what happened in relation to engagement between the Claimant and the Council is far from easy to ascertain. Mr Nabi was highly critical of the Council’s record-keeping, and clearly a record is not kept of every contact by every individual who attends at an NO. Of the absence of contact notes, Ms Darwin says (at paragraph 11 of her statement of 10 April 2015 in Ms Edwards’ case):

“[No contact being noted] does not mean that [Ms Edwards] did not approach a housing office or an advice centre, only that no note was made on the system if contact was made. In my experience, it is usual for contact to be noted where, for example, a specific request is made or a document is handed in or some specific step taken – for example assessing a housing application. So it is possible that Ms Edwards may have gone to a housing office or housing advice centre from time-to-time in 2014, but that it may have been simply to get advice or ask a simple question such as what her current [Part VI] points allocation was. If Ms Edwards had asked to make a homeless application at any time then I would certainly have expected that to have been recorded on her file…”.

Relying on R (BAPIO Action Limited) v Secretary of State for the Home Department [2007] EWHC 199 (QB) at [69] per Stanley Burnton J, and R (Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin) at [96] per Aikens J, Mr Nabi submitted that the absence of records in this case make it evidentially more difficult for the Council to prove that it has fulfilled its statutory duties. Certainly, the absence of full records makes the fact-finding exercise for me more difficult.

On the other hand, it is also apparent that the recollection of the Claimants – particularly as to the precise nature of the procedures with which they engaged, and forms which were filled in by them or on their behalf – is not as clear or accurate as it might be. It is apparent that, on occasions, the recollection of a particular Claimant is simply wrong.

In the face of these challenges, I am left to do my best on the available evidence.

I now turn to the individual claims. The claims of Ms Edwards, Ms Cole and Ms Saeed have distinct similarities. Each was accommodated in property that was initially appropriate but, because of changes in their circumstances, it became unsuitable. In each case, that was the basis upon which it was said that their accommodation was no longer accommodation which it would be reasonable for them to continue to occupy, so that they were homeless at home. I will deal with those three cases first, before turning to Mr Noworol, whose case is significantly different.

Rachel Edwards was born on 22 March 1989. She is the daughter of the Second Claimant, Vernica Cole. Ms Edwards has two daughters of her own, born on 15 April 2014 and 23 May 2015 respectively.

From March 2011, when she was single and lived alone, Ms Edwards lived as a housing association assured tenant at Flat 25, Newchurch Gardens, Kingsbury Road, Erdington, a one-bedroom, third-floor flat. I shall refer to that property as simply “Flat 25”. There is no lift in the block. To get to the front door of Flat 25, one has to climb half-a-dozen flights of half-a-dozen stairs each.

In mid-2013, she fell pregnant; and, from that time, she says that she went to the Council to make a homeless application “on numerous occasions” (paragraph 18 of her statement of 27 March 2015), which she describes as follows.

I am afraid I find this evidence, at best, hopelessly confused, particularly as between housing applications under Part VI and homeless applications under Part VII. The Council’s records do, in this case, help to an extent.

Ms Edwards lived in private sector (housing association) accommodation, appropriate to her needs as a single person living alone. When she became pregnant, her concern was that the flat would be inadequate for her and her child, because (i) it had only one bedroom, and (ii) it would be difficult for her to access because of the stairs. She felt unable to obtain suitable housing for her new circumstances in the private market. It was therefore quite appropriate for Ms Edwards to apply to the Council for Council housing under Part VI.

The computer records show that she made a Part VI application in March 2014, prior to the birth of her first child and at a time when she lived alone. That application has been located. It was completed and signed by Ms Edwards on 7 March 2014, and date stamped as having been received by the Council’s College Road office on 10 March. The face of the form and the computer system show that the housing application was set up on 24 March 2014, and, on 15 May 2014, her points entitlement and her priority compared with other applicants was assessed. The records show that relevant matters were satisfactorily verified – i.e. sufficient information had been provided to enable the application to be processed on the basis of the information provided by Ms Edwards – and Ms Edwards is recorded as being eligible for allocation. Consequently, as from May 2014, Ms Edwards was able to bid for an allocation of housing through the Council’s Choice Lettings Scheme (see paragraph 7 above), if she wished to do so. There is no evidence that Ms Edwards made any bid. It is unclear why she did not do so.

The Part VI application form states that, if the housing applicant is homeless or threatened with becoming homeless in the next 28 days, the Council’s homeless service may be able to help, with contact details. A suggestion of homelessness may be relevant in two respects. First, if a Part VI applicant is homeless, then that is a matter which the housing authority must take into account (and give reasonable preference to) in allocating Part VI housing. Second, the suggestion of that a Part VI applicant is homeless may prompt Part VII inquiries etc.

However, in the Council’s records, there is no evidence that Ms Edwards made a homeless application before March 2015, or gave any indication that she wished or needed to make a homelessness application before that date. I well-understand that Mr Nabi submits that the Council’s record-keeping means that an absence of any record of her wishing to make an application cannot in itself prove that she did not try; but it would have been astonishing if Ms Edwards (as she now asserts) considered herself homeless when she was just two months pregnant, simply because she lived in a one-bedroom property only accessible by way of about 36 stairs. She was, very clearly, not then “homeless”, on any definition of that word. Had she sought to make a homeless application then, it seems to me that it could only have been made in an attempt to circumvent the Part VI application procedure and Part VI allocation scheme the Council had in place. But, on the basis of all the evidence, I am not satisfied that Ms Edwards did indicate to the Council that she wished to make a Part VII homeless application (as opposed to a Part VI housing application) when she was two months pregnant with her first child; nor, indeed, at any time prior to March 2015. I am unpersuaded that the assertion Ms Edwards makes in relation to raising a query about a homeless application shortly after her daughter was born in April 2014 is any more reliable than the assertion she sought to make such an application in 2013. The fact that she wished to have a larger property, without stairs, after the birth of her daughter was clearly not in itself sufficient to alert the Council that Ms Edwards may be homeless or threatened with homelessness.

Ms Edwards’ assertions that she attempted to make a homeless application, or raised homelessness with the Council, prior to March 2015 were made after she had taken legal advice on the provisions of Part VII; and are, in my view, unfortunately a reconstruction of what she might have done as opposed to a true recollection of what happened. I am not satisfied that Ms Edwards ever raised homelessness as an issue with the Council until March 2015.

However, it is common ground that Ms Edwards did present as someone wishing to make a homeless application in March 2015. At that time, she was still living at Flat 25, with her first child, then nearly one year old. She was also pregnant.

Ms Edwards’s version of events is as follows. On 11 March 2015, she attended the Erdington NO/HAC; but “no one could see [her]” (paragraph 27 of her statement of 27 March 2015). She went back to the office the following day, and said she wished to make a homeless application. A woman asked her, “Are you homeless today”; and she said that she was not on the streets. The woman thereafter appeared disinterested, and Ms Edwards was told that the Council would not accept a homeless application if the applicant were not homeless “right now”. Ms Edwards said she wished to see someone else, and a man came to see her. He filled out a “housing application” on a computer, and Ms Edwards was then given a letter asking her to attend a homeless appointment on 9 April 2015. Ms Edwards says that she was not offered temporary accommodation.

I am afraid, again, with regard to this engagement, I am quite sure that Ms Edwards’ evidence is unfortunately confused; although it does reflect, to an extent, what appears to have happened.

Ruth Farrell is a CSA as the Erdington NO. In her statement of 15 September 2015, she says that the Council’s computer records show that Ms Edwards attended the NO on 11 March 2015. Ms Farrell was acting as a reception CSA that day. She says that Ms Edwards presented as someone requesting or needing homeless assistance, and she therefore referred her on to another CSA, David Walker. Ms Farrell says (at paragraph 14 of her statement):

“Whether a customer is street homeless or homeless at home is irrelevant to whether I would put them through to interview. They would be referred regardless. I cannot recall whether I asked Ms Edwards ‘Are you homeless today?’, but it is possible that I did so if I was trying to work out how urgent the case was, i.e. whether she needed to be referred to a homelessness appointment immediately so that any request for temporary accommodation could be processed that day, or whether she had accommodation that she could continue to occupy as ‘homeless at home’ until a homelessness appointment could be arranged for a subsequent day.”

This evidence is of some slight concern; because it seems from it that Ms Farrell may not have fully understood the procedures as set out by Mr Crawshaw. Ms Farrell was acting as a reception CSA; and Mr Crawshaw said that reception CSAs have to consider whether there is any suggestion of a request or need for homelessness assistance and, if there is, then they should refer the person to another CSA for a triage interview (see paragraph 100 above). I accept that, where a CSA is capable of performing both reception and triage functions and has sufficient time, there does not appear to be any reason why he cannot conduct a triage interview at reception. However, it would be insufficient for the reception CSA to ask the person whether they were “homeless today” – which many lay people would take to mean “roofless tonight” – on the basis that a negative answer would enable the reception CSA to book a homeless interview with an HNO rather than refer the person on to an SHNO that day.

On the evidence, it is unclear as to whether Ms Farrell approached this issue correctly. For the purposes of the claim, in the Claimant’s favour, I accept that she may not have done so. However, in this case, even if she did not, that is not to the point; because she did, in the event, properly refer Ms Edwards on to another CSA for interview, precisely as she ought to have done had she approached the matter correctly. Any possible error on her part was immaterial.

The CSA to whom Ms Farrell referred Ms Edwards was David Walker. In his statement of 18 September 2015, Mr Walker confirms that he saw Ms Edwards once, on 11 March 2015 (and not on 12 March, as Ms Edwards states). Ms Edwards was very angry when he saw her, because Ms Farrell had not arranged a homeless interview for her – Ms Edwards did not understand (he says) that it was not the job of a reception CSA to make such appointments, but only to signpost customers to the correct person who, in the case of homelessness, was another CSA such as he (paragraph 11 of his statement).

Mr Walker says that he can remember Ms Edwards, and much of the interview with her on 11 March 2015. I accept that, and the substance of his evidence.

Mr Walker says that Ms Edwards must be mistaken when she says that she saw him on 12 April; and also mistaken when she says he completed a housing application for her on-screen, because Part VI forms have to be completed manually. I accept that specific evidence. As a CSA, he was not authorised to complete a Part VII homeless application (which would be an on-screen task), and there is no suggestion that he did do so that day. In relation to that application, Mr Walker says (at paragraphs 12-15):

“12.

When she had calmed down, Ms Edwards explained to me that she wanted a homeless appointment. She explained that she had been living in a housing association property and she was now having another baby so she wanted a larger property. I asked her if she had discussed this with the housing association. She told me that she had and that they had done nothing. Our conversation was not very long: she just repeated that she wanted a homeless appointment. I do not recall if she made any complaint about the property itself or the stairs leading up to it.

13.

She had told me that she wanted to make a homeless application, so I arranged an appointment for her to return to do so. I am not authorised to take homeless applications myself. So this is all I could do for her. She did not present as urgently needing assistance or requiring temporary accommodation, so I made an appointment for her on 9 April 2015…. This was the first available appointment that I could book that suited her. If Ms Edwards had required urgent assistance, I would have booked her to see a duty homeless officer [i.e. an SHNO] that same day.

14.

…

15.

Ms Edwards goes onto complain that I did not offer to provide temporary accommodation. This is not correct. As soon as she said that she wanted homeless assistance, I would have asked her is she needed temporary accommodation that night. If she did, I would have arranged for her to see a [SHNO] that day instead of making an appointment in the future, as that is the procedure when there is urgent need…. As I arranged the appointment for the future, Ms Edwards must have told me that she did not need temporary accommodation that night. The information that Ms Edwards had given me gave me no reason to believe that she could not remain in her accommodation in the short-term.”

Therefore, in line with the guidance to SHNOs and HNOs (see paragraph 114 above), it seems to me that Mr Walker focused exclusively on whether Ms Edwards wished to have or needed temporary accommodation that night. From Mr Walker’s statement, it seems that he cannot specifically recall how he asked Ms Edwards about her interim housing needs. He says (at paragraph 15) that he “would have asked her if she needed temporary accommodation that night”, and, as he did not immediately refer her to a SHNO but rather arranged an interview with an HNO at a later date, “Ms Edwards must have told [him] that she did not need temporary accommodation that night”. It seems that Mr Walker neither asked nor considered whether Ms Edwards wanted interim accommodation at any time prior to the appointment that had been fixed on 9 April 2015; nor is there any evidence that he made clear to Ms Edwards that, if she wanted interim accommodation at any time before the appointment, she could attend an HAC and obtain it. Mr Walker seems to accept that he may have erred in this regard: in paragraph 16 of his statement he says:

“… I believe I was correct to think that she did not need urgent assistance on 11 March 2015 but I accept that I should have checked it with her expressly and repeat my apology for failing to do so.”

Insofar as Mr Walker failed to address Ms Edwards’ interim housing needs, not just for 12 March but through to the proposed housing application interview date of 9 April, as arguably he ought to have done, I shall consider whether that failure was material in due course.

On 17 March 2015, CLP sent the Council a PAP letter, saying that Ms Edwards had been sent away from Erdington NO/HCA on 12 March with an appointment for 9 April, contending that that was unlawful and seeking confirmation that a homeless investigation was underway, and confirming the immediate provision of interim accommodation under section 188. The Council attempted to telephone Ms Edwards, but she did not answer the calls. On 18 March, the Council formally responded to the PAP letter, simply indicating that a homeless interview had been arranged for 9 April. The letter did not refer to interim accommodation at all.

On 30 March, CLP issued judicial review proceedings on behalf of Ms Edwards, seeking an order requiring the Council to commence section 184 inquiries in respect of Ms Edwards’ homeless application and (reflecting the PAP letter) an order requiring the Council to provide interim accommodation in the meantime. There were also applications for urgent consideration and interim relief, in the form of immediate accommodation.

On 1 April, I refused the application for interim relief, but directed the Council to file and serve summary grounds by 10 April. In due course, a hearing of the application for interim relief was set down for 15 April. It seems that those proceedings (but, probably, not my order) were served on the Council on 2 April 2015, after the interview between Ms Darwin and Ms Edwards which I describe below.

In the meantime, on 31 March, in respect of Ms Edwards, Ms Darwin’s supervisor (Maura Mulligan, an H&PTS Senior Service Manager) asked Ms Darwin to “arrange for a homeless application to be taken and Temp accom offered TODAY”, indicating that the “homeless application will have to be back-dated to at least 18 March….”. Safiah Hanif (a Visiting HNO) telephoned Ms Edwards to arrange a visit that day, but Ms Edwards said she was not available for a home visit that day or the following day, but would attend Erdington NO/HAC the following day. However, she did not attend then. On being contacted, CLP said that she would attend the following day, 2 April.

On the morning of 2 April 2015, Ms Edwards attended Erdington NO/HCA with her mother, Ms Cole. Ms Darwin conducted the interview with Ms Edwards. Her record of the interview states:

“I have lived at the above address since 2011. I moved in when I was on my own. It’s a really nice property and I have had no problems with it at all, its just that now I have a daughter and another child on the way the property is not suitable.

There are 6 flights of stairs up to my flat. I have trouble getting the baby’s buggy up to my flat and now I’m pregnant I cannot manage it at all. I have had to stay at my mums and nans as I really can’t manage the stairs any more.

I am going to stay with my mum while my application is processed as I do not want to do into a hostel or a bed and breakfast with a baby. I’ve done it before and know what its all about.

I have asked my HA if they could move me. They sent a load of papers to fill out, they just sent me a list of HA phone numbers.

I came into Erdington NO on 12.03.15, I saw Ruth [Farrell] at reception and told her I needed to make a homeless application. I had been told by CLP this is what I needed to do. Ruth asked if I was homeless today and I said no, and it was like she switched off and wasn’t interested. I then saw a gentleman called David [Walker] who booked me a homeless appointment for 09.04.15, and gave me a housing application to complete.”

Ms Darwin continues (at paragraphs 22-23 of her case statement):

“When Ms Edwards said that she did not want to go into bed and breakfast or hostel accommodation I advised her that it was her choice and that no one could force her to go into bed and breakfast or hostel accommodation. I advised her that if she wanted to stay with friends or family it was her choice to make… I advised her that if at any point she changed her mind and wanted emergency accommodation she could return and she would be provided with it…”.

Ms Edwards signed a declaration at the bottom of the form, confirming that the information in the form was “true, complete and correct”.

Ms Edwards says that she was encouraged and persuaded not to seek interim accommodation from the Council, because Ms Darwin told her that she “would be more comfortable [at her mother’s] than in a hostel which was the type of place the Council normally provided”, and she (and her mother) would get more housing application points because they would each be living in overcrowded conditions (paragraph 15 of Ms Edwards’ statement of 22 April 2015). Ms Darwin denies that – and we know from the evidence in Ms Cole’s case that she would not have been overcrowded, having spare bedrooms. Ms Darwin says that she gave Ms Edwards some assistance with her Part VI housing application; and that, at the end of the interview, Ms Edwards seemed happy with the service that she had provided for her that day (paragraph 25).

There is something of a conundrum here. The PAP letter (sent on 17 March) and the proceedings (issued on 30 March) both say that the Council has failed to offer Ms Edwards interim accommodation, but it is the evidence of Mr Walker and Ms Darwin that Ms Edwards said that she indicated that she did not want interim accommodation at her interviews with them on 11 March and 2 April respectively. Indeed, Ms Edwards accepts that interim accommodation was discussed on 2 April, and she indicated that she did not wish to take it up. It was, however, taken up later that day or the following day, when, after service of the proceedings and in the light of an application for relief in the form of interim accommodation, the Council offered it again.

I am satisfied that, not only did Ms Edwards reject interim accommodation at her interview with Mr Walker, but did so again at her interview with Ms Darwin. I accept that Ms Darwin’s note of that interview accurately set out what Ms Edwards told her, i.e. that she did not wish to go into a hostel or bed and breakfast, but preferred to stay at her mother’s house whilst her homeless application was being processed. I reject the suggestion – insofar as it was made – that that was the result of any improper pressure put upon Ms Edwards by Ms Darwin. It is clear from the note that Ms Edwards made up her own mind, on the basis of her own previous experience. Although not perhaps material to the issues in this claim, I do not accept Ms Edwards’ evidence that she was told that, by moving in with her mother she would enhance their respective Part VI chances, which it patently did not do. I accept Ms Darwin’s evidence that she made clear that Ms Edwards could come back if, at any time prior to the determination of her homeless application, she wanted interim accommodation.

As I have indicated, the proceedings appear to have been served on the Council on 2 April, but after Ms Darwin’s interview with Ms Edwards. The claim sought relief in relation to interim accommodation, which had been rejected by Ms Edwards only that morning. The Council fully accepted that Ms Edwards was entitled to interim accommodation, if she wished to have it. Service of the proceedings therefore resulted in the Council attempting to contact both Ms Edwards and CLP by telephone that day (2 April), but unsuccessfully. As a result, the Council simply booked accommodation for her, from that evening, at the Norfolk Hotel, Hagley Road. I reject the suggestion that that interim accommodation was only offered under force of the proceedings: Ms Edwards had rejected the offer of interim accommodation on the morning of 2 April, and the service of the claim seeking such accommodation in the afternoon was treated by the Council as an effective change of mind by her. They acted upon the new circumstances very promptly. Interim accommodation was identified that day. The Norfolk Hotel has a lift. It is, I understand, regularly used by the Council to accommodate the homeless on an emergency basis. Ms Edwards was sent a text confirming the offer of that accommodation.

The Council lodged summary grounds of opposition to the claim on 10 April, which disputed the facts as presented by the Claimant, denied unlawfulness and said that the claim was in any event academic because Ms Edwards’ application was now being processed.

On 15 April, the hearing for interim relief was vacated at the request of both parties.

There is some evidence – I accept relatively thin (see paragraph 29 of Carola Bent’s statement of 24 September 2015: Ms Bent is an SHNO at H&PTS Headquarters) – that Ms Edwards rarely spent the night at the Norfolk Hotel. In any event, on 17 April, CLP wrote to the Council saying that the accommodation provided in the Norfolk Hotel was unsuitable: bed and breakfast accommodation should only be used as a last resort where the applicant has children (see paragraph 29(ii) above), and in any event the accommodation was being used by drug and alcohol users and Ms Edwards did not feel safe. There was no bath, nor storage or cooking facilities. The place was dirty. The hotel was a considerable distance from Ms Edwards’ family members and network support. CLP asked for alternative, suitable temporary accommodation to be provided.

The following day, Ms Edwards returned to the Norfolk Hotel to find that her belongings had been packed up, and a fax was waiting for her telling her that she had been re-accommodated at a Council hostel in Breedon Road. The evidence is that this was the only alternative accommodation to the Norfolk Hotel. The room was on the fourth floor. The hostel did not have a lift. Ms Edwards only stayed one night, and then moved back to Flat 25. The Council now accept – in my view, rightly – that the Breedon Road accommodation was not suitable for Ms Edwards because of difficulties of access.

On 22 April, the Council wrote to Ms Edwards saying that one final offer of temporary accommodation would be made, namely Flat 2, Ladywood Middleway. Ms Edwards moved there.

On 28 April, the Council sent the Claimant a section 184 notification that she was not homeless, by virtue of her assured tenancy of Flat 25 which it was considered reasonable for her to occupy; but, that same day, Haddon-Cave J granted Ms Edwards permission to proceed with her judicial review and interim relief in the form of an order directing the Council to grant interim accommodation. Ms Edwards was assigned the Ladywood Middleway flat by way of interim accommodation; and she sought a review of the Council’s decision that she was not homeless.

Ms Edwards’ stay at the new, temporary property was not a happy one. On 12 May, she sought a review of the offer, Ms Edwards having broken a window when she had locked herself out, and she also complained that the carpets were smelly. On 1 June, it was asserted that the property was unsuitable because there were problems with the hot water. On 9 June, it was said to be unsuitable because of its distance from Ms Edwards’ support network, and because the property had been burgled on 3 June. The Council tried to inspect the property, but Ms Edwards did not cooperate in granting them access. On 16 July, Ms Edwards confirmed that she was no longer living at the property.

In the meantime, on 7 July, having inspected her original property (i.e. Flat 25), the Council accepted on review that Ms Edwards was homeless and that it owed a full duty towards her.

Ms Edwards apparently did not make any bids for a Part VI housing allocation; and so, in accordance with the Council’s allocations policy and as provided on the homeless application form, on 8 September 2015 the Council placed a management bid on her behalf for Flat 8, Huntingdon House, Faulkners Farm Drive, a ground floor flat which met Ms Edwards’ access requirements. On 9 September, the Council notified Ms Edwards of an offer for that property, at bid position one (i.e. first in the queue), sending letters to both her temporary accommodation and her mother’s address to where it was believed she had moved. She was invited to inspect the property on 14 September, and she attended the viewing but said she needed time to consider the offer and speak to CLP. The Council pressed her for a response, but none was forthcoming. In the absence of an acceptance, the Council notified her on 18 September that its duty had come to an end because she was deemed to have refused a final offer of accommodation. On 21 September, through CLP, she sought a review of that decision, and sought temporary accommodation pending that review, which was provided at a flat in Bristol Road South. On 16 October, Ms Edwards and CLP were invited to attend on 23 October to make oral representations on the review, to address any new information as to why she had refused the offer. No one attended. Further letters were sent on 2 December 2015, saying that the Council was minded to uphold the discharge decision.

On any view, Ms Edwards’ tale is a sorry one. I have real doubts as to her willingness at all times to engage with the Council. In particular, she singularly failed to engage with the Part VI allocations process. On the other hand, looking back, the Council may consider that it did not at all times deal with matters optimally. However, I am not required to judge whether either or both parties could have acted differently and better; I have to consider whether (and, if so, the extent to which) the Council was in breach of its obligations under Part VII.

Mr Nabi submitted that the Council was in breach in two respects (paragraph 155 of his skeleton argument). First, it breached its section 184 duty to make homelessness inquiries “by turning Ms Edwards away on repeated occasions when she sought assistance”. Second, it failed to provide suitable interim accommodation to Ms Edwards.

I reject the proposition that Ms Edwards was turned away “on repeated occasions” when she sought homelessness assistance. For the reasons I have given, I am unpersuaded that she presented as homeless prior to March 2015. So far as the March 2015 engagement is concerned, I accept that, on the evidence, Ms Farrell’s approach to Ms Edwards’ presentation as homeless may not have been optimal; but she referred Ms Edwards on to Mr Walker for triage interview as and when she should have done. There was no arguable breach of the Council’s obligations there.

When Ms Edwards saw Mr Walker, she refused interim accommodation that night, as was offered. Mr Walker arguably failed to consider interim accommodation through to the date of the homeless application appointment he had booked for 9 April 2015, but (i) he said, and I accept, that Ms Edwards did not suggest that she might require accommodation before then, and (ii) I accept that, when she had her homeless application interview with Ms Darwin (in the event, on 2 April), she voluntarily declined interim accommodation then too. I appreciate that she sought interim accommodation in the proceedings that were issued, and that the Council concede that the 9 April appointment was further ahead than, taking into account Ms Edwards’ circumstances, it should have been (see paragraph 10 of Schedule 1 to Mr Arden’s skeleton argument); but (i) no claim is made that the delay in the appointment was a breach of duty under the Act, and certainly not a breach that would warrant any sanction or relief – nor could such a claim properly be made; and (ii) I am satisfied that, had Mr Walker asked her about interim accommodation through to 9 April, she would have told him that she did not require it.

As soon as Ms Edwards made it clear in the context of the proceedings that she wished to have interim accommodation, it was provided within hours. I appreciate that the course of her living in temporary accommodation was not smooth; but, generally, when she indicated that she considered accommodation temporary accommodation was unsuitable, she was re-accommodated.

In my judgment, the only step taken by the Council worthy of any censure was in relation to Breedon Road. The fourth floor accommodation there was, as the Council accept, patently unsuitable for her requirements. Precisely how Ms Edwards came to be placed there is unclear; but that placement was a patent error. In my judgment, this was the only failure by the Council in fulfilment of its Part VII obligations towards Ms Edwards. It was an error that was, relatively quickly, remedied. Ms Edwards only stayed at Breedon Road for one night. The placement error, even if properly categorised as a breach of duty, would not, in itself, possibly warrant any relief in these proceedings, nor does Mr Nabi suggest otherwise. In the context of the general claim made, Ms Edwards’ placement in Breedon Road was clearly an idiosyncratic error of a type which it is not suggested was systemic.

Vernica Cole was born on 25 January 1968. She is the mother of Ms Edwards and also four other children, only two of whom now still who live with her. They are aged 13 and 10. Ms Cole lives at 216 Wheelwright Lane, Erdington, as a secure tenant of the Council. Ms Edwards’s underlying problem is that the property in which she lives is now too small for her and her family. Ms Cole’s problem is that now hers is too large. This is how Ms Cole’s problem has arisen.

Ms Cole is in receipt of Jobseekers Allowance of about £36 per week, a reduced rate because of deductions for other debts such as water rates and arrears of Council Tax. 216 Wheelwright Lane is a three-bedroom property. She has been the secure tenant of the property since 2000. The current rent is £104.06 per week. Ms Cole is in receipt of housing benefit, but is subject to the under-occupation charge (the so-called “bedroom tax”). She is paid benefit of £89.49 per week, leaving a shortfall of £14.57 per week.

Ms Cole is in arrears with her rent, and has been for some considerable time. The Council appear to have obtained some form of possession order in 2008, stayed upon condition that the arrears were cleared. In 2012, further proceedings were brought by the Council, but these were the subject of a successful counterclaim by Ms Cole for disrepair following flooding of her property. In June 2013, the Council paid her £900 compensation, which was in the event set off against her rent arrears. Following those proceedings, a retaining wall was built at the front of the property to prevent further flooding, in line with the recommendation of the experts in the claim. By the end of 2014, Ms Cole’s rent arrears had again risen to about £550.

Ms Cole’s claim is based upon events on 11 March 2015 when, she says, she attended Erdington NO/HAC. She succinctly says (paragraph 4 of her statement of 27 March 2015):

“On Wednesday 11 March 2015 I went to the Erdington [NO] and explained that I wanted to make a homeless application. I also explained that my home was not affordable any more. I was refused help. I was told that I was not entitled to make a homeless application as I am not homeless. I was told that I could not register on the Council’s Home Choice Scheme because I am not allowed any points as I already have a three bedroom property. I was given a transfer form to complete.”

The Council have no record of Ms Cole attending the Erdington Office on 11 March 2015. Ms Cole appears to have made a telephone call to the Council’s Benefit Service that day, to advise them that she had missed her JSA appointment and this might affect her claim to housing benefit. It is also perhaps noteworthy that Ms Cole’s daughter (Ms Edwards) attended Erdington NO/HCA on 11 March 2015, when she saw Ms Farrell and Mr Walker (see paragraphs 149-156 above). Ms Darwin (in paragraph 17 of her statement of 20 April 2015 in Ms Cole’s case) says, as she does in respect of Ms Edwards’ claim, that the absence of a record does not mean that Ms Cole did not attend the office that day, e.g. to get general advice; but, if she had asked to make a homeless application, Ms Darwin would have expected that to have been recorded.

I am prepared to accept that Ms Cole may have visited Erdington NO/HAC on 11 March 2015. It is possible that she attended with her daughter, who was undoubtedly there that day to make a homeless application. However, even given Mr Nabi’s forceful submissions in relation to record-keeping and bearing in mind that within a week CLP wrote a solicitor’s letter referring to Ms Cole seeking to make a homeless application on 11 March, I am entirely unpersuaded that Ms Cole sought to make a homeless application herself that day.

On 18 March 2015, there is a record of Ms Cole contacting the Council about arrears of rent. Ms Darwin sets out what the notes of that contact say:

“On 18 March 2015, Ms Cole contacted the [Council] about her arrears of rent. I can see from the [computer system] notes that she was advised that she had only made one payment of £5.00 towards her arrears of rent. I can see that it was noted that Ms Cole said that she could not afford to make any payment towards her arrears as she had other bills to pay. I can see that Ms Cole was given a referral to a debt advice agency and that there was a discussion about making an application for [Discretionary Housing Payment]. I note that a new form to make that application was sent to Ms Cole. Ms Cole was also warned that if her arrears continued to increase then she was at risk of court action. I note that there is no reference to a homeless application made by Ms Cole or any reference to a visit to a Birmingham office on 11 March 2015. If Ms Cole had made such a visit, I would have expected her to mention that when talking about her housing situation but there is no record of it or reference to it in the telephone call.”

The failure of Ms Cole to mention homelessness is the more remarkable on her own version of events because, on 17 March 2015 (the day before her conversation with Ms Darwin), a PAP letter was sent to the Council by CLP on her behalf, saying that she had attended Erdington NO/HAC on 11 March for the purposes of applying for assistance as a homeless person, and the Council had refused to commence section 184 inquiries and Ms Cole “was informed that she could not apply as a homeless person because she had a roof over her head”. The letter requested confirmation that the Council would abandon its policy of refusing to investigate homelessness unless a person is without a roof over his head.

The Council’s response, the following day, says that they had unsuccessfully tried to contact Ms Cole. It noted that it had no record of any attendance at Erdington on 11 March, and that no notices had been served on Ms Cole to vacate her current Council tenancy. There was also no record of her applying to transfer to a property more suitable for her family size, and advising her to complete an application form for transfer under Part VI; or to seek a mutual exchange. There was no reference to homelessness.

Proceedings were issued on 30 March 2015, and served on the Council the following day.

The Council acted promptly. Ms Darwin telephoned Ms Cole that day, and set up a homelessness interview for the following day. Ms Cole duly attended the Erdington NO/HAC on 1 April, and Ms Darwin partially completed the homelessness form. She could not finalise it, because Ms Cole did not have all of the required documents. An appointment was made the following day, when Ms Cole attended with her daughter, Ms Edwards. I have already referred to this in the context of Ms Edwards’ claim (see paragraphs 161 and following above). CLP had already said that Ms Cole was not seeking any temporary accommodation; and she confirmed that to Ms Darwin, making it clear that she was happy to remain in her property whilst her homeless application was being processed. Her application was completed at the interview on 2 April 2015.

On 28 April 2015, the Council not having acknowledged service, Haddon-Cave J granted permission to proceed.

On 7 May, the Council served a section 184 notification that Ms Cole was not homeless; but that decision was overturned on review, after Ms Cole had submitted further information about her financial position and continuing concerns about flooding. At the time of the hearing, Ms Cole was in bid position one on a property under construction.

The only breach of duty by the Council pursued by Mr Nabi was its refusal to accept an application for homelessness assistance on 11 March 2015, the Council’s defence, he says, being that at paragraph 10 of its summary grounds, namely that Ms Cole’s case was “far from an obvious homelessness case” (see paragraph 155 of his skeleton argument).

I agree that the only possible breach of Part VII duties by the Council in this case was in any failure to accept a homeless application on 11 March. In its summary grounds, the Council does not accept that she presented as homeless that day – the reference to this being “far from an obvious homelessness case” in the Council’s summary ground being in the hypothetical, or at least alternative, context of Ms Cole presenting as homeless but the CSAs not recognising that she presented as such.

I have found as a fact that Ms Cole did not present as homeless that day. That is sufficient to dispose of the claim. However, even if she had, she would not have sought interim accommodation – she has never suggested that she wished to have such accommodation – and would therefore have been given an appointment for a homeless application interview in the future. Her daughter, Ms Edwards, presented as homeless on 11 March at that same HAC, and therefore we know the course Ms Cole’s application might have made, and probably would have made. Her daughter’s interview eventually took place on 1-2 April 2015, the exact days that Ms Cole’s interview in fact took place. I am therefore unpersuaded that in the event, even if the breach had been proved, Ms Cole in fact suffered any material delay in consideration of her homeless application; and therefore no relief would have been appropriate. Indeed, Mr Nabi does not suggest that any specific relief in this case would be appropriate.

In any event, for the reasons I have given, Ms Cole has failed to prove any breach of duty on the part of the Council.

Yasmin Saeed was born on 1 January 1981. Her housing history – helpfully set out in a case statement of Ms Darwin of 14 September 2015 – is somewhat convoluted.

Ms Saeed first presented to the Council – the Ladywood NO, which then dealt with homeless applications – on or about 24 March 2010, when she made a homeless application. She had no children living with her, but was pregnant. At that time, she was living with friends in Lozells. She had previously been living in Glasgow. She had made a homeless application to Glasgow City Council and that authority had accepted a statutory duty towards her. It had made two offers of accommodation, which Ms Saeed had rejected, with the result that the authority determined that it had discharged its duty towards her. Ms Saeed had then moved briefly to London, before arriving in Birmingham.

Ms Saeed makes no complaint about how the Council dealt with her March 2010 homeless application. The Council accepted it, and placed Ms Saeed in temporary accommodation in the Norfolk Hotel pending consideration of it. In due course, the Council accepted that it owed a full duty towards her; but decided to refer her case to Glasgow under the local connection provisions of sections 198 and 199 (see paragraph 25 above). Glasgow refused to accept the referral, by reason of the previous discharge of its obligations to Ms Saeed; and, through solicitors (but not CLP), Ms Saeed sought to review the referral, on the basis that she had family living in Birmingham, namely her sister. On 10 July 2010, the Council overturned its decision to refer Ms Saeed to Glasgow; and, on 20 July, wrote to her explaining the Part VI bidding process for Birmingham. By this time, Ms Saeed had given birth to a son, who was living with her.

On 22 July 2010, the Council made Ms Saeed an offer of accommodation, namely Flat 87, Brecon Tower, Guild Close, Ladywood, a two-bedroom flat located on the 14th floor of a tower block. I will refer to this accommodation as simply “Flat 87”. It is a Council-owned property. Ms Saeed initially rejected that offer; but, on 30 July, changed her mind and accepted the offer, subject to a review of suitability which she instigated.

After Ms Saeed had moved into Flat 87, but before the review, Ms Saeed’s niece came to live with her. She was a minor; and Ms Saeed produced evidence that she was her niece’s guardian. On receipt of that information, the Council accepted that Flat 87 was not suitable accommodation for Ms Saeed – it was accepted that she needed a three-bedroom property – and it agreed to make a further offer to her. In the meantime, in effect, Flat 87 was temporary accommodation for Ms Saeed, pending that offer.

Things then began to go wrong. There was a mix-up between two teams within the Council’s Housing Department that were then separate – the Homeless Team and the Voids Team – which resulted in the offer of accommodation by the former being cancelled by the latter, which cancellation was treated as a refusal of an offer by the former. As a result of these errors, on 12 November 2010, a letter was sent to Ms Saeed notifying her that the Council considered it had discharged its duty to her, to which Ms Saeed did not respond. The Council archived her file.

Nothing further was heard from Ms Saeed until 14 March 2014, when she completed and lodged a change of circumstances form. In that form, in answer to the question, “Is your home in a poor state of repair?”, she ticked the box, “No” (section 5b). However, Ms Saeed’s personal circumstances had changed considerably. She was still living in Flat 87, but with four children: her son born in 2010, and three children born to her earlier and by then aged 18, 16 and 14 respectively. She said in the form that she was living with these four children in Flat 87, a two-bedroom property, it was overcrowded and she needed bigger accommodation as soon as possible. As a result of that Part VI form, Ms Saeed was awarded 80 Part VI bidding points by reason of overcrowding, and allocated within Band C priority in the Council’s housing allocations scheme. That allowed her to bid for new accommodation, which she did.

Another change of circumstances form was lodged on 11 November 2014, notifying the Council that Ms Saeed was pregnant, a fifth child being born to her in January 2015.

As a result of a bid made by Ms Saeed on 29 January 2015, she was selected for an offer of a four-bedroom house in Egg Hill, namely Plot 13 or 184 Frogmill Road, then under construction. In accordance with the Council’s usual practice of only notifying offers for new build properties when a date for occupation is known, this offer was not immediately notified to Ms Saeed.

Ms Saeed says that she visited a number of the Council’s offices in February 2015. In addition to her overcrowding, she wished to complain about the condition of her property. It was affected by damp and mould growth. The lifts frequently broke down. The windows in her flat did not have restrictors. The man in the flat above played loud music and shouted. The visits she says she made were as follows:

There is, again, clearly some degree of confusion here. Solihull Metropolitan Borough Council is a separate local housing authority from the Council; and it appears that (iii) refers to an approach to that other authority (although Ms Darwin says that Solihull has no record of the attendance: paragraph 27 of her statement). In respect of (ii), it is not entirely clear whether Ms Saeed visited Solihull’s office in Stratford Road or the Council’s Sparkbrook NO/HAC which is in Grantham Street. In any event, there is no record of the visit in the Council’s records. I am not persuaded that Ms Saeed presented to the Council as homeless before March 2015.

Furthermore, the Council deny that it was in breach of any Part VII obligations in relation to the condition of the property. Records show that the lifts were working for over 97% of the time. The Council has a policy for fitting window restrictors; but, when workmen arrived to fit them to Ms Saeed’s flat, they were unable to gain access, and Ms Saeed did not follow up the issue. The Council has no record of any complaint about her neighbour.

Ms Saeed instructed CLP. On 11 March 2015, Mr McIlvaney of that firm telephoned the Council’s H&PTS to request homeless assistance for Ms Saeed. He says (paragraph 5 of his case statement dated 29 April 2015) that he was told that there was no direct public telephone access to HACs. The officer explained that the appropriate office was Northfield NO/HAC – in fact, the office furthest way from where Ms Saeed lived – and she would email that office asking them to call Mr McIlvaney. However, they did not do so.

On 13 March 2015, CLP faxed a PAP letter to the Council requiring the Council to respond by 5pm that day. The letter requested confirmation that homelessness inquiries had been commenced, and that a decision would be provided by 23 March 2015 (i.e. within 33 days of 4 February 2015). It did not request interim accommodation. There is no suggestion that the PAP letter did not accurately comply with Ms Saeed’s instructions to CLP. There is no evidence that, at the time the PAP letter was sent, Ms Saeed wished to have interim accommodation.

In response to that letter, the Council arranged an interview with Ms Saeed at Newtown NO/HAC on 16 March 2015, which Ms Saeed duly attended. There is a dispute as to what was said about temporary accommodation at that meeting. The interview was conducted by Jennifer Morrison, a Newtown HAC HNO. She completed the electronic homeless application form. In paragraph 26b of the form (“Additional information provided by interviewer”), she recorded the following:

“… I advised if applicant requires TA [i.e. temporary accommodation] today or in the future as part of their application then TA can be anywhere in the city and those [sic] they must adhere to the rules which have been signed for. Advised of s188 interim duty and if offered it can be anywhere in the city and that of any type of accommodation including B&B, Hostel and Hotels. Advised they must abide by the rules as we can discharge interim duty if the rules are breached and advised that there is no appeal process for s188. Also advised that if they are in employment then they may be liable for TA costs and advised of how much TA possible costs.”

Question 29 (“Are you able to remain at your current accommodation tonight?”) is answered, “Yes”. In her statement (paragraph 15 of her statement of 15 September 2015), Ms Morrison simply says:

“I note that I recorded at Question 29 that Ms Saeed said that she did not require temporary accommodation that night. I always ask applicants if they require temporary accommodation – not everyone needs it. Question 29 is a prompt for a conversation about the housing circumstances. I can recall the discussion I had with Ms Saeed about temporary accommodation. It was a discussion: I did not just ask one question. I talked to her about the availability of temporary accommodation and what she wanted to do. I can recall that Ms Saeed said that she did not require temporary accommodation.”

On the other hand, Mr McIlvaney says (paragraph 7 of his case statement of 29 April 2015) that Ms Saeed had confirmed (presumably to him) that she wanted the Council to provide interim accommodation pending any final decision. Further, Ms Saeed says (at paragraph 24 of her statement dated 29 September 2015):

“During the course of the meeting I asked the Council to provide me with temporary accommodation pending a decision in respect of my homeless application. Exhibited to this statement… is a copy of a document that I was given and which is headed “Homeless Application Receipt”. The Housing Officer recorded on this document that I required temporary accommodation.”

Ms Morrison does not refer to that form at all in her statement. It is a standard form printed receipt, acknowledging the application and setting out the matters for which sufficient information had already been provided (the children’s passports are listed in this case) and the matters for which information is still required (proof of Ms Saeed’s NI number). On the form in this case, there are the following handwritten notes, down the right-hand side:

“– change of circumstances & require Temporary Accommodation

– contact Erdington Sparkbrook Northfield Office.

– Copy of Birth Certificate for New Baby

* Child Benefit & Child Tax Details

Attended on appt at Newtown to complete Part 7 Homeless Form at 3.00 on 16/3/15”

This (submitted Mr Nabi) is firm and clear evidence that Ms Saeed asked for interim accommodation at the 16 March interview. Other than Ms Saeed’s assertion that she asked for interim accommodation at the 16 March interview, and Mr McIlvaney’s evidence that Ms Saeed had told him that she wished to have interim accommodation, it is the only evidence upon which she relies to support the proposition that she did seek such accommodation on that occasion. Evidentially, Mr Nabi relied very heavily upon the handwritten note.

However, it seems to me that that note is at least equally consistent with the evidence of Ms Morrison and her record of interview, i.e. that she discussed temporary accommodation with Ms Saeed who said she did not wish to have it. The note is consistent with the message that, if Ms Saeed had a change of circumstances (or simply changed her mind), then she should attend one of the HACs with resident SHNOs who could deal with a request for temporary accommodation on the day. Indeed, the reference to the other three HACs (at which interim accommodation could be offered by an SHNO, “on the day”) is difficult to explain otherwise. Although the PAP letter had not requested interim accommodation, I consider that “change of circumstances & require Temporary Accommodation”, and its reference to the other HACs, is far more likely to be have been a reference to the future than to the past, i.e. a note that, if Ms Saeed changed her circumstances or her mind about temporary accommodation, she should attend one of the three HACs where an SHNO could deal with a request for temporary accommodation on the day.

Consequently, on all of the evidence, I am not satisfied that Ms Saeed requested interim accommodation at the 16 March interview.

Without further correspondence, on 30 April 2015 CLP issued judicial review proceedings, seeking (amongst other things) an order requiring the Council to provide interim accommodation, served on the Council by fax at 3.49pm that day. Attempts were made to contact Ms Saeed and her solicitors on 1 May, without success. A message was left for Ms Saeed to return the call, but she did not do so. In the event, on 6 May a letter was sent to Ms Saeed at Flat 87 offering interim accommodation at 71 Winnie Road, Selly Oak, an offer that was viewed and accepted the following day.

On 8 May, on the papers, Knowles J refused permission to proceed with the judicial review. That order was apparently not received by the Council until after 20 May.

In the meantime, on 13 May, the Council accepted a full homeless duty under section 193 towards Ms Saeed.

On 19 May, the Council lodged and served summary grounds of opposition in the judicial review, indicating that Ms Saeed had been provisionally allocated the house in Egg Hill. By that time, the properties at Egg Hill were approaching completion. Ms Saeed had a viewing appointment on 21 May, which she did not attend: and a fresh appointment on 27 May, when she attended, accepted the property and signed a tenancy agreement. The tenancy formally commenced on 8 June 2015.

In this claim, Mr Nabi submits that there were three breaches of duty by the Council, namely by:

However:

For those reasons, Ms Saeed has failed to prove any breach of duty on the part of the Council.

Marian Noworol was born on 10 May 1950. He is a single man of Polish origin, who moved to the United Kingdom in 1994. He is employed by the Council on a casual basis as an interpreter.

In 2000, he moved into property owned by a friend at 149 Durham Road, Sparkhill. It was split into three parts: Mr Noworol lived in the first floor, his friend lived on the ground floor and his friend’s niece lived in the attic. His friend died on 31 December 2013, and Mr Noworol had no right to live in the property thereafter.

He made a homeless application to the Council on 21 January 2014. At the interview, he denied having any physical or mental illness or disability. He was offered temporary accommodation, but initially said that he would stay with friends for a few days. However, from 13 February, he accepted the offer of temporary accommodation at the Norfolk Hotel, and later at Flat 89, Osbourne Tower, Gladstone Street.

On 10 March 2014, Mr Noworol was served with a decision letter on his application, which concluded that, although homeless, he was not in priority need – and thus he was not owed the full housing duty. However, he continued to reside at the temporary accommodation; until, on 28 April 2014, a notice to quit was served and then possession proceedings commenced. Mr Noworol did not attend the possession hearing on 7 November 2014, when a possession order was made. An application by Mr Noworol to suspend the subsequent eviction warrant was dismissed on 29 December 2014. It appears that Mr Noworol was advised on a number of occasions (including at the 29 December 2014 hearing) that, his Part VII application having been unsuccessful, he should make an application for housing assistance under Part VI.

On 7 January 2015, Mr Noworol attended the Northfield NO/HAC, again presenting as homeless. He was interviewed by Malcolm Stanley, an SHNO, and a Home Options form was completed. This recorded that Mr Noworol had a heart condition, but he was not receiving any medication for it: and he had a letter from his doctor saying that he was depressed about his housing situation. Mr Noworol said that there had been no other change in his circumstances.

Mr Stanley refused to accept a homeless application from him. He wrote to Mr Noworol that day, after the interview, saying:

“If there is no significant 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 referring to Rikha Begum and paragraph 6.27 of the Code (see paragraph 40 above), the letter continued:

“After confirming with you, your current circumstances on 7 January 2015, you informed me that you have been diagnosed with a Anxiety, Depression and hart [sic] issue but have not been prescribed medication for your complaint.

The other facts in your case are based on exactly the same facts as your homeless application on 21 January 2014. I must advise you that we do not consider that there has been any significant change in the facts of your case.

We will not therefore be accepting a homeless application from you as a result of your visit on 7 January 2015.”

In his case statement of 18 September 2015, Mr Stanley says that he refused to accept the application:

“10.

… because on the information that he gave me on that day, I could not discern any difference at all in his circumstances on that day compared to his previous application. If there had been the slightest difference, I would have accepted and processed a homeless application from him.

11.

I note that in two places in the letter I wrote I refer to a ‘significant change in facts’. Whilst that is what I wrote, I know that is not the correct legal test and it is not in fact the test that I applied on that day. I was using the word in contrast to what I also set out in the letter, meaning what the Code says at para 6.27 and the quote from Rikha Begum, with their references to ‘trivial’ new facts and circumstances which are ‘exactly the same’ and which I knew (and was saying in the letter) comprise the correct test. The word was poorly chosen, for which I apologise, and I accept that if that was the test I had applied, it would have been the wring test but it was not. I am sorry for the error in that regard. I repeat that the test I actually would have applied and still do apply is whether the application was on ‘exactly the same facts’. What I mean by that in practice is that had Mr Noworol made me aware of any change at all in his circumstances – no matter how small (albeit not trivial) – I would not have given him that letter but would instead have filled in a new homeless application form with him and begun to progress his homeless application”.

Before me, the Council through Mr Arden conceded that Mr Stanley erred in refusing Mr Noworol’s homeless application on 7 January 2015 as a fresh homeless application. That concession, in my respectful view, was rightly made, and clearly so. Despite its reference to paragraph 6.27 of the Code and Rikha Begum, the letter makes clear the test in fact being used, i.e. whether there had been a significant change in facts since the last application. There is also a reference to that in the computer record of the conversation. That is the wrong test. In any event, on the face of the letter, there had been some material change, namely as to Mr Noworol’s health.

Mr Noworol was evicted from his temporary accommodation that day, 7 January 2015. With the assistance of a charity, he managed to obtain housing trust accommodation at a hostel in Hagley Road.

On 16 January, CLP sent the Council a PAP letter, requiring the Council to confirm (amongst other things) that the 7 January 2015 homeless application would be accepted. The letter indicated that Mr Noworol was suffering from a number of medical conditions. The Council responded that same day, accepting the application, effective from 7 January 2015, offering a homeless interview on 19 January at Newtown NO/HAC and confirming that Mr Noworol had been offered temporary accommodation at Washington Court although he had preferred to remain at his current hostel. However, Mr Noworol could make a request for temporary accommodation at the interview.

Mr Noworol did not attend the 19 January interview. It seems that he mistakenly thought that, because he had been allocated a support worker, he did not have to attend.

On 28 January, CLP wrote a further letter to the Council, asking for confirmation that a homeless decision would be notified within 33 days of 7 January 2015. A further letter dated 25 February complained about a lack of response; and, on 5 March at 4.59pm, not having received any further correspondence about the homeless application, CLP sent the Council a further PAP letter requiring a decision on the application by the following day. The Council responded on 6 March, saying that Mr Noworol had failed to attend the interview on 19 January; and, if he wished to have an interview, he should attend Sparkbrook NO/HAC.

That, I am afraid, prompted another PAP letter, sent by CLP at 4.27pm on 9 March. It said that CLP were not prepared to advise Mr Noworol to attend an HAC – because applicants were often simply sent away from such offices – and the letter required the Council to forward a homeless application form, which they would complete with Mr Noworol. That (as Ms Darwin explains: see paragraph 29 of her case statement of 9 September 2015) was not possible, as the forms are electronic in nature, and comprised dropdown boxes that disenabled hard copy completion. The Council thus responded to the PAP letter accordingly, offering Mr Noworol an interview at Newtown HAC on 12 March 2015 at 11am. Mr Noworol says that he attended that day, in good time, but was told that “the Council could not help him with a homeless application and the Newtown Office had not taken homeless applications since October 2014”. He was told to go elsewhere, and was given a leaflet, which did indeed confirm that Newtown HAC did not deal with “on the day homeless” applications – although, of course, Mr Noworol was not making such an application: he had an appointment. As a result of this misunderstanding as to why Mr Noworol was there, the Newtown HAC recorded him as a no show.

Nevertheless, on 17 March, the Council telephoned Mr Noworol saying that they had two flats to offer him, and asking that he telephone back. He did not do so. Those flats were allocated to others.

On 30 March, it appears that Mr Noworol moved to Room 3, 984 Warwick Road, provided by the same housing association as Washington Court.

The following day, it seems that he was told to attend a meeting to sign a tenancy agreement; but he apparently refused to do so for the singular reason that to do so would have compromised his Part VII rights as he would no longer have been homeless (see paragraph 62 of Mr Nabi’s skeleton argument).

On 1 April, CLP sent a further PAP letter, which focused on the management of the (private, housing association) accommodation he was then occupying. Given that there had been problems in arranging a homeless interview with Mr Noworol at an HAC, in response the Council arranged for an HNO (Inderjit Singh) to visit him on 10 April to complete a homeless application form, which he did on a laptop computer. Mr Noworol says that he did not understand the nature of that interview (see paragraph 15 of his statement dated 29 April 2015): but, although I appreciate that Mr Noworol was not then well (see below), he understood that Mr Singh was from the Newtown HAC and he must have known that a letter before action had been sent on his behalf in respect of the Council’s alleged failure to progress the homeless application. It is clear that Mr Singh must have completed the form on his computer whilst he was with Mr Noworol, who accepts that he was asked questions about his housing. On all the evidence, I am satisfied that Mr Noworol was well aware that this was a homeless interview.

The form records that Mr Noworol was suffering from “deep depression”, and was being prescribed anti-depressants. The answer to Question 29 was “Yes”; “indicating [says Ms Darwin: see paragraph 36 of her case statement of 9 September 2015] that he did not need temporary accommodation from the Council at that time”.

CLP issued judicial review proceedings on 30 April 2015. In addition to general declarations, it sought only an order directing the Council to determine Mr Noworol’s homeless application. Interim accommodation was not sought.

On 7 May, the Council determined that Mr Noworol was not homeless, because accommodation was available to him at to Room 3, 984 Warwick Road. A review of that decision was sought; but, on 15 May, Mr Noworol attended a viewing of a property offered to him as Part VI housing, which he accepted. That tenancy commenced on 29 June 2015. On the homeless decision review, it was determined by the Council that Mr Noworol had no priority need; but, by then, he had moved into his new home.

Mr Nabi submitted that the Council was guilty of two breaches of duty in relation to Mr Noworol (paragraph 155 of his skeleton argument). First, it refused to accept Mr Noworol’s application for homelessness assistance. Second, the delay in determining that application was unlawful.

The Council accepts that Mr Stanley used the wrong test in refusing to accept the homelessness application on 7 January 2015; but this was rectified by 16 January when, after service of a PAP letter, the Council accepted the application as from 7 January. The failure was thus short-lived. The 7 January application was not determined until 7 May 2015, i.e. it took 83 working days compared with the target of 33 days. I have set out, briefly, the chronology of the delays above. The delay seems to have been fuelled by a number of misunderstandings between the Council and Mr Noworol/CLP. There is no evidence that the Council did not take into account the 33 day guidance, e.g. there is no evidence that they did not monitor this case as an “out of time” case after 33 days had elapsed. During the period it took to determine the application, Mr Noworol was temporarily housed under section 188. In my judgment, it is not arguable that, in all the circumstances of this case, the Council acted unlawfully in the time it took to determine Mr Noworol’s application.

Finally, Mr Noworol seeks permission to amend his claim to seek a declaration that the Council has acted in breach of its statutory duty towards him under section 211 (see paragraph 30 above), and as a bailee, by failing to take reasonable steps to prevent the loss of his property, and by disposing of his property on 8 April 2015. Such a declaration is sought, presumably, as a prelude to a money claim which is what Mr Noworol, understandably, really wishes to pursue in respect of this alleged loss.

I refuse permission to amend. This application is not only made very late, but it is in respect of a claim that is unconnected to the common issues raised in the claims which have been heard together in this hearing; and it is a claim that can (and should) be the subject of separate proceedings in the county court, if it is to be pursued.

For those reasons, Ms Cole and Ms Saeed have failed to prove any breach of duty on the part of the Council. In respect of Ms Edwards and Mr Noworol, there were failings on the Council’s part. However, even if these amounted to a breach of statutory duty, it was a minor breach that would not arguably have warranted the grant of any relief from this court.

Nor, in my judgment, is this a claim in which any declaration or mandatory orders should be granted. The possible breaches of duty as I have found them to be do not arguably support a claim of systemic failure, as is alleged.

It is asserted on behalf of each of the Claimants, that the Council’s failures in his or her own case “are illustrative of an unlawful general policy and approach to its obligations under [Part VII] and amount to gatekeeping” (see, e.g., paragraph 49(a) of the Claimant’s summary grounds in Ms Edwards’ case). My findings that in each case there is either no breach of duty by the Council, or alternatively no substantial breach of duty, is not a good foundation for such a bold submission. What is the basis for the submission?

The bare statistics alone do not suggest that the Council is unlawfully restricting access of to Part VII benefits. Compared with the national figure, the Council has about 5% of homeless applications made and 6% of applications in which a full duty is accepted, which can be compared with the proportion of national households in Birmingham namely 2%, the acceptance rate is about 60%, compared with 48.5% nationally. 0.75% of households in Birmingham are accepted as homeless, compared with a national figure of 0.25%. Mr Nabi suggested that the fact that, given the HACs received 180,000 inquiries per year, the fact that only 5,000-odd homeless applications were made to the Council suggests that potential applicants must be turned away, in my view, has no force: the NO/HACs deal with a wide variety of inquiries, and it cannot properly be argued that this proportion reflects a failure to deal with all the homeless applicants who in fact attend HACs.

Any statistics in this context have to be approached with considerable caution, because Birmingham has substantial areas of significant social deprivation, and the Council may therefore be expected to have a higher homeless population than many other authorities: but the statistical figures do not give any support to the proposition that, as a policy or approach in practice, the Council is systemically turning away homeless applicants.

One therefore has to look for some specific evidence of such a policy or practice.

However, in these cases, there is no evidence of an unlawful express policy (as there was in Aweys, Kelly and Khazai). Furthermore, it is the evidence of Mr Crawshaw, and each of the other Council officers who submitted evidence (nearly thirty in number), that there is no Council policy, or express or implied instruction, or any pressure or suggestion to front-line decision-makers, with the intent of avoiding the Council’s statutory obligations under Part VII, by (a) preventing individuals who are homeless or threatened with homelessness from bringing homeless applications under Part VII and/or (b) by avoiding securing interim accommodation to those entitled to such accommodation under Part VII. In these cases, there is no simply no evidence of any such policy etc.

The individual cases do not provide any substantial basis for a claim that the Council is guilty of systemic failings. I am sensitive to the fact that I have made findings (particularly in relation to the number and nature of engagements between the Claimants and the Council) without having heard oral evidence and without the written evidence being tested in cross-examination. However, my conclusions with regard to the general claims are not dependent upon the precise findings of fact that I have made. The parties sought to paint different pictures of the procedures and practices adopted by the Council in respect of how it deals with people presenting as homeless. Mr Nabi suggested that the way in which the Council dealt with these matters was such that potential homeless applicants were prevented from exercising their Part VII rights – or, at least, the risk of their being so prevented was significantly raised. However, even if my findings of fact had been substantially more generous to the Claimants, they would have fallen far short of persuading me that such systemic failings had been proved. The picture I have obtained from the four claims – and from the other cases to which I have been referred – is one of genuine attempt by the Council to comply with its Part VII obligations, even if beset by individual errors committed by Council officers working under intense pressure. One example is the placement of Ms Edwards, whose homeless application was based upon an inability to access a third floor flat services only by stairs, in a fourth floor room in a hostel without a lift. I accept – as Mr Crawshaw and Mr Arden accepted – that, when such errors strike, they can result in more than inconvenience for the applicant involved. But such examples in four, or even twenty cases, over two years, compared with perhaps 10,000 homeless applications in that period, fall very far short of proving a systemic failure.

I have of course considered the sixteen cases that fall outside the four claims, with care; but, given the essential weakness of the four claims and the lack of any serious breach of duty in any, there is simply no case of systemic failings in those claims to which these other cases could offer sensible support. In that event, it is unnecessary for me to lengthen this already long judgment by reviewing those individual cases.

The Council’s procedures have clearly undergone a substantial transformation over the last few years; and, Mr Crawshaw makes clear, further changes are likely. Whilst I emphasise that the manner in which the Council seeks to comply with its statutory obligations under Part VII is essentially a matter for it, and I do not consider they amount to anything like a systemic breach of the Council’s Part VII duties, it does seems to me that there remain vestiges of procedures and practices, which have been criticised in the past. For example:

None of these are material to the claims before me, and, in my view, taken alone or in aggregate, the examples of errors before me fall very far short of showing any systemic fault or breach. They are, no doubt, matters that the Council will keep under review.

For those reasons, I do not consider that any relief in the form of a general declaration or mandatory order is appropriate in this case. Indeed, the cases before me fall very far short of persuading me that such relief might possibly be appropriate.

In respect of the individual claims, for the reasons I have given, they fail, either because the Claimant has failed to prove any breach of statutory duty, or alternatively because any breach that might be shown is minor and does not warrant any relief. Mr Nabi concedes that, leaving aside the general claims, the individual claims are each academic.

I shall consequently order that the substantive claims in the cases of Rachel Edwards and Vernica Cole be dismissed; and permission to proceed be refused in the cases of Yasmin Saeed and Marian Noworol.