Abdulrahman, R (on the application of) v The London Borough of Hillingdon

This is an application for judicial review of a decision by the London Borough of Hillingdon communicated by letters dated 25^th April 2016 and 26^th April 2016 to decline to accept the Claimant’s application made under section 183 of the Housing Act 1996 for accommodation.

The application for permission to seek judicial review was made on 28^th April 2016. The Claimant applied for interim relief in the form of an order that the Defendant do forthwith accept the Claimant’s homelessness application, and forthwith provide her and her family with suitable accommodation. On 29^th April 2016 Garnham J refused the Claimant’s application for interim relief.

On 13^th May 2016 permission to proceed with an application for judicial review was granted by Sir Stephen Silber sitting as a High Court Judge.

The Claimant relies on the following grounds of claim:

In 2008 the Claimant and her husband, Abdulrahman Mohamudbanna came to the United Kingdom from Somalia.

On 7^th June 2012 the Claimant’s husband entered into an assured shorthold tenancy agreement with Plexus UK for a six month term from 8^th June 2012 until 7^th December 2012. The property subject to the tenancy was a house at 101, Tudor Road, Hayes, Middlesex, UB3 2QE.

The Claimant and her husband have nine children. When the Claimant’s husband made the application for the tenancy at 101, Tudor Road, he stated that nine people would be living at the house (himself, the Claimant, and seven children). The Claimant, her husband and their nine children lived at the house.

On 15^th January 2013 Plexus UK wrote to the Claimant’s husband informing him that they had made an application to the court to gain possession of 101, Tudor Road. They stated “The reason for this is that the contract with the owner of the house has expired and the term of your tenancy has ended.”

On the 2^nd September 2013 an order was made in the Uxbridge County Court granting Plexus possession of 101, Tudor Road on or before 16^th September 2013. Bailiffs were appointed to enforce the possession order.

On 28^th October 2013 the Claimant and her husband made a joint application to the Defendant for assistance on the grounds that they were homeless.

In a letter dated 30^th December 2013 the Defendant wrote to the Claimant and her husband stating that their application had been considered and that it had been decided that they were homeless, eligible for assistance, and had a priority need for housing, but were intentionally homeless. The Claimant and her husband’s application for assistance was refused. The Defendant concluded that the Claimant’s husband had been in breach of his tenancy agreement with Plexus as he had obtained the tenancy by providing false information as to the size of his family, and that he was in breach of the tenancy agreement as the house was not kept in good repair. The Defendant stated “You were the cause of the disrepair in this accommodation by allowing two extra people to stay in your property without the landlord’s knowledge or consent.” At the time that the letter was written the Claimant and her family were living in bed and breakfast accommodation arranged by the Defendant. In the letter dated 30^th December 2013 the Defendant stated “Your bed and breakfast accommodation will be terminated on 12^th January 2014”.

On 13^th January 2014, pursuant to section 202 of the Housing Act 1996, the Claimant’s husband sought a review of the Defendant’s decision. In making his request for a review the Claimant’s husband accepted that, when making his application for a tenancy at 101, Tudor Road, he had given inaccurate information, as to the number of people who would live at the house. He also stated that, at the family’s previous address, 27 Milton Way, they had suffered from anti-social behaviour.

On 14^th January 2014 the Defendant entered into a licence agreement with the Claimant and her husband by which the Claimant’s family were provided with bed and breakfast accommodation at 101A, Lansbury Drive, Hayes, Middlesex, UB4 8RW.

By a letter dated 18^th February 2014 the Defendant communicated their decision on the Claimant’s husband’s review request. The Defendant maintained their decision that the Claimant and her husband were intentionally homeless.

On 7^th March 2014 the Claimant’s husband appealed to the Willesden County Court against the Defendant’s decision on the review. That appeal was abandoned when the Claimant’s husband left the United Kingdom and returned to Somalia.

On 28^th March 2016 the Defendant brought to an end the provision of bed and breakfast accommodation for the Claimant and her family at 101A, Lansbury Drive.

After moving out of 101A Lansbury Drive, various members of the Claimant’s family have lived with different friends and relations. The Claimant’s two youngest daughters have stayed with her at various different places. Two of the Claimant’s sons live with a family friend in Harrow. The Claimant’s two older daughters have returned to Somalia to live with the Claimant’s sister. The Claimant’s other three children are not dependent upon her, one has gone to Kenya to live with his uncle.

On 28^th March 2016 the Claimant asked the Defendant’s housing department for assistance. The Defendant refused to accept the Claimant’s application. The Claimant made further approaches to the Defendant’s housing department on 29^th March 2016, 30^th March 2016, 6^th April 2016, 19^th April 2016 and 20^th April 2016. The Defendant refused to provide assistance.

In a letter dated 25^th April 2016 the Claimant’s solicitors made an application to the Defendant for accommodation pursuant to section 183 of the Housing Act 1996. The Claimant’s solicitors contended that the application was not based on exactly the same facts as the application which was refused on 30^th December 2013. The two changes in the facts relied upon in the Claimant’s solicitors’ letter were the fact that the Claimant’s husband had returned to Somalia, and that her three older children were not residing with her.

The Defendant replied to that application, and in a letter dated 25^th April 2016 stated: “…the Council has decided not to accept this application as you have based it on the same facts as the previous one made on 28October 2013.

On 26^th April 2016 the Claimant’s solicitors wrote a pre-action protocol letter to the Defendant. The Claimant’s solicitors contended that she is entitled to make a new homeless application.

The Defendant, in a letter dated 26^th April 2016, replied to the Claimant’s solicitors pre-action protocol letter. The Defendant’s response included the following:

The decision under challenge is that made by the Defendant on 25^th April 2016 to refuse to accept the Claimant’s application for accommodation made under section 183 of the Housing Act 1996.

Section 183 of the Housing Act 1996 (“the 1996 Act”) provides, so far as relevant:

183.—Application for assistance.

(1)

The following provisions of this Part apply where a person applies to a local 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 this Part relating to accommodation or assistance in obtaining accommodation, and

“eligible for assistance” means not excluded from such assistance by section 185 (persons from abroad not eligible for housing assistance ) or section 186 (asylum seekers and their dependants).

Section 184 of the 1996 Act provides:

184.—Inquiry into cases of homelessness or threatened homelessness.

(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.

(2)

……………

(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.

……………………

Section 188(1) of the 1996 Act provides:

188.—Interim duty to accommodate in case of apparent priority need.

(1)

If the local housing authority have reason to believe that an applicant may be homeless, eligible for assistance and have 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.

Section 190 of the 1996 Act provides:

190.—Duties to persons becoming homeless intentionally.

(1)

This section applies where the local housing authority are satisfied that an applicant is homeless and is eligible for assistance but are also satisfied that he became homeless intentionally.

(2)

If the authority are satisfied that the applicant has a priority need, they shall—

(a)

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

(b)

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

……………….

Section 191 of the 1996 Act provides:

191.—Becoming homeless intentionally.

(1)

A person becomes homeless intentionally if he deliberately does or fails to do anything in consequence of which he ceases to occupy accommodation which is available for his occupation and which it would have been reasonable for him to continue to occupy.

The extent of the duty to make inquiries imposed by the predecessor to section 184 of the 1996 Act, section 62 of the Housing Act 1985, was considered by the House of Lords in R v. Harrow LBC ex parte Fahia [1998] 1 W.L.R. 1396. In that case the local authority refused an application for accommodation on the grounds that although the applicant was homeless and in priority need, she was homeless intentionally. The local authority refused to accept a further application and refused to make fresh inquiries pursuant to section 62 of the 1985 Act. Lord Browne-Wilkinson considered the extent of the duty to inquire at pages 1401 to 1402:

Duty to inquire

The problem is this. When a local authority, having discharged their statutory duties in relation to one application for accommodation, then receive a second application from the same applicant, are they bound in all circumstances to go through the whole statutory inquiry procedure and provide interim accommodation or is there a “threshold test” which the second application must satisfy if it is to be treated as an application under the Act? So, in the present case, Harrow having discharged their statutory duty in relation to Mrs. Fahia's application in 1994, could they decide as they purported to do that there was no fresh application before them in 1995 thereby avoiding the necessity to go through the full statutory inquiries required by section 62 and to provide interim accommodation under section 63?

It is Harrow's case that a person making a second application must demonstrate a change of circumstances which might lead to the second application being successful and it is for the local authority to decide whether that test has been satisfied. So, it is said, in the present case Mrs. Fahia had not shown any new circumstance which could lead to the conclusion that she was not intentionally homeless and that accordingly Harrow could refuse to go through the whole process of making statutory inquiries again.

I have sympathy with Harrow's case on this point but I am unable to extract from the statutory language any sufficient justification for the suggested short cut. Under section 62 the statutory duty to make inquiries arises if (a) a person applies for accommodation and (b) “the authority have reason to believe that he may be homeless or threatened with homelessness.” It is established that requirement (a) is not satisfied if an application purports to be made by someone who lacks the capacity to do so: Reg. v. Tower Hamlets London Borough Council, Ex parte Ferdous Begum [1993] A.C. 509 . Moreover when an applicant has been given temporary accommodation under section 63 and is then found to be intentionally homeless, he cannot then make a further application based on exactly the same facts as his earlier application: see Delahaye v. Oswestry Borough Council, The Times, 29 July 1980 . But those are very special cases when it is possible to say that there is no application before the local authority and therefore the mandatory duty imposed by section 62 has not arisen. But in the present case there is no doubt that when Mrs. Fahia made her further application for accommodation she was threatened with homelessness. Moreover in my judgment her application could not be treated as identical with the earlier 1994 application. She was relying on her eviction from the guest house which, for one year, she had been occupying as the direct licensee of the guest house proprietor, paying the rent for that accommodation. She was reimbursed the amount of the rent by way of housing benefit but the fact was that she had occupied premises as licensee for a year. It is impossible to say that there has been no relevant change in circumstances at all.

In Rikha Begum v. Tower Hamlets LBC [2005] 1 WLR 2013 the Court of Appeal:

The Claimant relies upon two grounds:

Mr Shepherd, for the Claimant, submits that the Defendant applied the wrong test when determining that the Claimant’s application should not be accepted.

Mr Shepherd submits that the correct test to be applied by the Defendant when considering whether to accept the application was whether it was based upon exactly the same facts as the application made by the Claimant and her husband which was rejected following review, on 18^th February 2014.

It is not in dispute between the parties that the test to be applied is that set out in Fahia and Rikha Begum, namely whether the application is based upon exactly the same facts.

Mr Shepherd’s submissions are based upon the letter from the Defendant dated 26^th April 2016 which was sent in response to the Claimant’s pre-action protocol letter. Ms Smith, for the Defendant, submits that the decision was set out in the Defendant’s letter dated 25^th April 2016 and that the 26^th April 2016 letter can be regarded as setting out the reasons for that decision.

Mr Shepherd submits that the references in the 26^th April 2016 letter to the fact that the Defendant does not accept an intervening change of circumstances, and that by living in accommodation provided by the Defendant’s social services department the chain of causation was not broken, demonstrate that the Defendant was asking itself whether there had been material change of circumstances, i.e. a change of circumstances which in their view was likely to lead to a change to the original decision.

Ms Smith submits, on behalf of the Defendant, that they did not misdirect themselves in law and that they applied the correct test.

I accept Ms Smith’s submission that the decision not to accept the Claimant’s application is contained in the letter from the Defendant dated 25^th April 2016. In that letter the Defendant states that they have decided not to accept the application. More detailed reasons for making the decision are set out in the letter of 26^th April 2016 sent by the Defendant in response to the pre-action protocol letter. As the reasons for the decision are set out in the 26^th April 2016 letter it is appropriate, in this case, to consider both letters.

Ms Smith also submits that in considering the letters by which the decision and the reasons for it were communicated the Court should not adopt an unrealistic approach, as such letters are prepared by housing officers, and not by lawyers. In support of that submission she relies upon the statements made by Lord Neuberger at paragraphs 47 and 50 in Holmes-Moorhouse v. Richmond LBC [2009] 1 W.L.R. 413. That case was concerned with the approach to be taken on an appeal to the County Court under section 204 of the 1996 Act from a review decision. In my judgment it is not appropriate to subject a local authority’s decision not to accept an application under Part VII of the 1996 Act to the same sort of analysis as may be applied to a contract drafted by solicitors, to an Act of Parliament, or to a court’s judgment. It is also important that the letter or letters by which such decisions are communicated should be considered as a whole.

In the 25^th April 2016 letter the Defendant states that they have decided not to accept the application “… as you have based it on the same fact as the previous one made” and that “Your second application has not revealed anything (sic) new information to the Council….”.

There is, in my judgment, nothing in the 25^th April 2016 letter to indicate that the Defendant has applied the wrong test.

The statement in the 26^th April 2016 letter (at the top of the second page) that the Council do not accept there is an intervening change in circumstances has to be seen in context. The letter is giving reasons for the decision set out in the letter dated 25^th April 2016. The sentence at the top of the second page of the letter follows from a statement that the Claimant has not submitted a different reason for homelessness, and can be seen to explain the Defendant’s conclusion that the breakdown in the Claimant’s marriage did not, in their view, constitute a relevant change in circumstances. Read in that context, the reference to the lack of an intervening change of circumstances does not indicate that the Defendant applied a test of whether there had been a material change of circumstances.

The reference, on the second page of the 26^th April 2016 letter, to the fact that accommodation provided to the Claimant by the Council’s social services department did not “break the clause of her homelessness” has to be read in context. That statement was provided in response to the Claimant’s reliance on R (May) v. Birmingham City Council [2012] EWHC 1399 (Admin). That statement was made to support the Defendant’s case that the facts could be distinguished from May. The reference to breaking the cause of homelessness does not, in my judgment, indicate that the Defendant applied the test of whether there had been a material change of circumstances.

On the second page of the 26^th April 2016 letter the Defendant refers to the guidance derived from Rikha Begum and states “The facts of your client’s case are exactly the same as they were when she made a joint application with her husband in 2013. The reason for homelessness remains the same”.

The Defendant states that the facts of the Claimant’s case are the same (the 25^th April 2016 letter) or exactly the same (26^th April 2016 letter) as when she made her previous (joint) application. Those two statements indicate that the Defendant applied the correct test. The references to causation and lack of intervening changes of circumstances do not indicate that the Defendant applied any different test to that which is apparent from the wording of the letters. In my judgment reading the 25^th April 2016 and 26^th April 2016 letters together and as a whole, it cannot be said that the Defendant applied the wrong test.

I reject this ground of claim.

Mr Shepherd submits that the Defendant’s decision that the facts of the Claimant’s 2016 application are exactly the same as the application decided in February 2014 is irrational. He submits that the following facts were plainly different:

Mr Shepherd acknowledges that only two of those three points were identified in the application letter dated 25^th April 2016, namely points (i) and (ii). He submits that point (iii) was known to the Defendant as they had provided the temporary accommodation.

Mr Shepherd submits:

Mr Shepherd relies on the judgment in R (on the application of May) v. Birmingham City Council [2012] 1399 (Admin) and submits that facts of the Claimant’s case are comparable.

In May at the time of disposal of the first application the Claimant and her two children were living with her grandmother on the basis that they could do so for an indefinite period, whereas at the time of the second application there had been a breakdown in relations between the Claimant and her grandmother and the Claimant could no longer live with her grandmother for an indefinite period. Those two scenarios were held to be different and Singh J held that no rational authority could have come to the conclusion that they were exactly the same (paragraphs 6, and 39-42).

Mr Shepherd submitted that when considering whether there has been a relevant change of circumstances, it is necessary to consider whether the facts concerned are relevant to the application itself.

Ms Smith’s submission is that it is not sufficient purely for new facts to be put forward, they have to be facts relevant to an application under Part VII of the 1996 Act.

Ms Smith places particular emphasis on the reference, by Lord Browne-Wilkinson at page 1402 in Fahia, to there being no relevant change of circumstances, and to paragraph 91 in Pill LJ’s judgment in Rikha Begum where he said “I would maintain some entitlement to inquire into the contents of the form with a view to deciding whether a relevant new matter can realistically be asserted to be present”. Ms Smith submits that the new circumstances must be relevant to the application and in particular to the requirements contained in section 184(1) of the 1996 Act, namely whether the applicant is homeless, or threatened with homelessness, eligible for assistance, in priority need and not intentionally homeless.

Ms Smith submits that:

Ms Smith also submits that the question of whether the 2016 application was based on exactly the same facts was one for the local authority to determine and that if, as in this case, the local authority looks at the facts in general terms (in particular the issue of homelessness) that is a matter for them.

The issue to be determined is whether, in deciding that the 2016 application was based on exactly the same facts as the 2013 application the Defendant acted irrationally.

In Fahia the House of Lords rejected the argument that there was a ‘threshold test’ which a second application must satisfy if it is to be treated as an application under the relevant Act. The only circumstance in which the duty to inquire does not arise is when it can be said that there is no application before the authority as the later application is based upon exactly the same facts as the earlier application. As Lord Browne-Wilkinson observed, those are very special cases (Fahia at page 1402D).

Lord Browne-Wilkinson expressed sympathy with the local authority’s case (page 1402B) but held that the statutory language must be observed. I acknowledge that it would be undesirable if local authorities were obliged to make inquiries pursuant to section 184 of the 1996 Act in response to repeated applications based upon exactly the same facts; however based on the principles established in Fahia and Rikha Begum they are not obliged to do so. When on receiving an application a local authority judge that it is based upon exactly the same facts as a previous application they are entitled to go no further. In those circumstances they are not obliged to make inquiries pursuant to section 184, and not obliged to provide accommodation pursuant to section 188 of the 1996 Act pending their decision.

It is clear from the guidance given by Neuberger LJ in Rikha Begum (at paragraphs 59-61) that it is for an applicant making a subsequent application to identify the new facts. If an application purports to reveal new facts, but the local authority, without further investigation, concludes that the facts are not new, or are fanciful or trivial, they can reject the application. Whether facts are fanciful or trivial depends on the facts of the case.

The fact that the Claimant and her children had moved out of bed and breakfast accommodation was not relied upon as a new fact in the application made to the Defendant in April 2016.

In this case the Claimant, in her application, identified two new facts, that her husband had left her, and 3 of her 9 children were no longer residing with her. In my judgment those facts can properly be said to be new and to be relevant. When the October 2013 application was made the Claimant was living with her husband and she and her husband were joint applicants. The reduction in the total number of people requiring housing, and in particular the number of dependent children, was a new fact which was relevant to an application for assistance under sections 183 and 184 of the Housing Act 1996.

It was for the Defendant to determine whether those facts were fanciful or trivial. In the letters dated 25^th April 2016 and 26^th April 2016 the Defendant did not conclude that the changes relied upon were, on the facts of the case, fanciful or trivial.

In my judgment it was irrational for the Defendant to conclude that the April 2016 application was based upon exactly the same facts as the October 2013 application. The facts were clearly different. In particular the identity of the applicant changed from a joint application from the Claimant and her husband to the Claimant alone, and the number of people seeking assistance had changed, in that assistance was no longer sought by the Claimant’s husband and three of the Claimant’s nine children. Both those facts are relevant to an application made under section 183 of the 1996 Act.

For those reasons Ground 2 succeeds.

For the reasons I have given, the application for judicial review is allowed, and the Defendant’s decision to decline to treat the Claimant’s April 2016 application as an application made under sections 183 and 184 of the 1996 Act is quashed.