Sambotin, R (on the application of) v London Borough of Brent

The Claimant is a national of Romania. In October 2013 he came to the United Kingdom in order to work. Between October 2013 and February 2014 the Claimant worked on a pig farm near Hull. Between April 2014 and July 2014 he worked, as arranged by an employment agency, in and about that same area of the North East of England.

On 31 July 2014 the Claimant moved south; he became the tenant of a room at 226 Barnabas Road, Ilford, IG1 7DR. On 12 August 2014 the Claimant began working, in a self-employed capacity, as a delivery van driver.

On 27 September 2015, whilst he was on holiday in Romania, the Claimant was involved in a road traffic accident. He sustained very serious injuries in consequence of which he is now wheel-chair bound.

In February 2016 the Claimant returned to the United Kingdom together with his mother. He was unable to resume his tenancy of the room at 226 Barnabas Road and he and his mother stayed with friends at 34 Stowe Crescent, E17 5EG.

On 12 August 2016 the Claimant made a homelessness application to the London Borough of Waltham Forest (hereinafter referred to as “Waltham Forest”). The application was made pursuant to the provisions contained within Part VII Housing Act 1996 (hereinafter referred to as “the Act” or “the 1996 Act”). By letter dated 15 September 2016 Waltham Forest informed the Claimant that he was not eligible for housing assistance pursuant to section 185 of the Act. Detailed reasons for the decision were set out in the letter.

In November 2016 the Claimant and his mother left 34 Stowe Crescent and took up residence at 17 Springfield Gardens, NW9 0RT. Those premises, as I understand it, are within the borough of the Defendant.

On 5 December 2016 the Claimant made an application under the 1996 Act to the Defendant. In his unchallenged witness statement the Claimant asserts that at the time he made the application to the Defendant, he provided “various documents about [his] financial situation and employment history”. Further, he maintains that he was asked by an officer of the Defendant whether he had applied to any other local authority for housing assistance and, in response, he said that he had and he provided to the Defendant’s officer a copy of the decision letter which had been issued to him by Waltham Forest.

By letter dated 30 January 2017 Mr Colin Nicol, on behalf of the Defendant, notified the Claimant that the Defendant had made a decision upon the Claimant’s application. Mr Nicol wrote and I quote:-

“The council’s decision

•

We are satisfied that you are homeless as defined by section 175 of the above Act.

•

We are satisfied that you are eligible for assistance as defined by section 185 of the above Act.

•

We are satisfied that you fall within the category of priority need as defined by section 189 of the above Act.

•

We are satisfied that you are not homeless deliberately as defined by section 191 of the above Act.

•

However we are not satisfied that you have a local connection with this authority as defined by section 198 of the above Act.”

Mr Nicol went on to inform the Claimant that the Defendant had taken account of “all the information on file” and information which the Claimant had provided at an oral interview which had taken place on 5 December 2016.

The letter also informed the Claimant that the Defendant had “sent a section 198 referral to Waltham Forest”.

That referral was made by the Defendant on the same date, i.e. 30 January 2017. The Defendant informed Waltham Forest that it had concluded that the Claimant was homeless, eligible for assistance, in priority need and not intentionally homeless. It went on to maintain that the Claimant had no local connection with the Defendant but that such a local connection existed between the Claimant and Waltham Forest and accordingly a reference under section 198 of the Act was being made.

On or about 8 February 2017 Waltham Forest made representations to the Defendant which were to the effect that the Claimant was not eligible for housing assistance. On that date Mr Nicol advised the Claimant by telephone that Waltham Forest had refused the referral on the basis that the Claimant was not eligible for assistance. On the same date, Mr Nicol sent an email to the Claimant’s legal advisor confirming that the Defendant had “withdrawn the s198 referral”. On 10 February 2017, the Defendant wrote to the Claimant a long and detailed letter. It suffices to say at this stage that it informed the Claimant that the Defendant was satisfied that he was not eligible for housing assistance. A detailed analysis followed as to why the Defendant had reached that conclusion. The letter ended with the Defendant notifying the Claimant that he had a statutory right to seek a review of this decision.

On 15 February 2017 the Claimant exercised that right. On that date his legal representatives wrote a long and detailed letter to the Defendant seeking a review of the decision of 10 February 2017 and explaining why, in the opinion of those advisers, the decision was incorrect. The Claimant’s advisors also requested the Defendant to provide accommodation to the Claimant pending the review. The Defendant has not yet responded, substantively, to the Claimant’s request for a review of the decision made on 10 February 2017. By letter dated 20 February 2017 it refused the Claimant’s request for accommodation pending the decision on review.

Two days prior to 13 February 2017, the Claimant’s advisers had written a pre-action protocol letter to the Defendant threatening these proceedings for judicial review. They made the point, with some force, that the Defendant had no power to re-open the decision which it had reached on 30 January 2017. An answer to the letter before claim was demanded by close of business that day. With commendable speed and efficiency the Defendant replied on 13 February 2017. It asserted that it was permissible for a local housing authority to “revisit and change” an earlier decision in certain circumstances one of which was that the earlier decision had “resulted from a fundamental mistake of fact” on the part of the authority. The Defendant suggested that such a mistake had occurred prior to the decision of 30 January 2017 but it did not specify the mistake alleged.

The Claimant issued a claim form on 22 February 2017. The primary relief claimed was and remains a quashing order in respect of the Defendant’s decision communicated by letter of 10 February 2017. Interim relief was sought; the court was asked to direct the Defendant to provide suitable accommodation to the Claimant pursuant to section 200(1) of the 1996 Act.

On 24 February 2017 the Claimant’s application for interim relief was considered, on the papers, by Langstaff J. The learned judge declined to grant interim relief but directed that there should be an oral “rolled up” hearing of the claim for judicial review on an expedited basis.

The Defendant maintains that I should refuse permission to apply for judicial review on a discrete basis namely that the Claimant has the right to a statutory review of the decision of 10 February 2017 and he has exercised that right. Further, in the event of a decision adverse to the Claimant upon review the Claimant has a right of appeal against that decision to the County Court. In the face of these alternative remedies, argues Ms Ferber, judicial review should be refused.

In support of this submission Ms Ferber relies, particularly, upon the decision of Moses J, as he then was, in R v Brent LBC ex parte Sadiq (2001) 33 HLR 47. While I accept that Moses J makes it clear that the existence of alternative remedies may result in permission to apply for judicial review being refused and/or relief being refused in cases of this type he makes it clear, too, that this court retains a residual discretion to entertain a claim for judicial review notwithstanding the existence of alternative remedies.

As will become apparent the instant case raises a discrete point of law which both Claimant and Defendant have addressed in detailed skeleton arguments. Counsel for Claimant and Defendant attended the hearing before me thoroughly prepared to debate the point which is at issue in these proceedings.

In my judgment the likelihood is that there would be a significant waste of substantial sums of public money should I refuse permission to apply for judicial review on the ground that the Claimant should pursue alternative remedies. All the costs so far incurred in these proceedings would be wasted. In the event that the review decision made by the Defendant was adverse to the Claimant (which must be at least a real possibility in the light of its letters of 13 February and 20 February) there would likely follow an appeal to the County Court with further significant legal costs thereby generated.

In my judgment the interests of justice in this case and the need for efficient disposal of legal disputes whenever possible point strongly to the conclusion that I should determine the merits of this claim. It my judgment once a rolled-up hearing was directed in these proceedings it became inevitable that the most cost effective and efficient way of dealing with the issues between the parties was by full and proper argument followed by judgment in these proceedings. That was the stance adopted on behalf of the Claimant by Ms Richardson: I accede to her submission. Accordingly the remainder of this judgment considers the merits of the various issues raised by the parties in these proceedings.

As I have said the primary relief sought by the Claimant is a quashing order in relation to the Defendant’s decision communicated by letter of 10 February 2017. The Claimant advances two grounds upon which he contends that such an order should be made. First, it is said that the Defendant had no power to make the decision which was communicated by the letter of 10 February 2017. In substance, argues Ms Richardson, the decision of 10 February 2017 was a revocation of the decision which the Defendant had made on 30 January 2017. She submits that in the circumstances pertaining in this case the Defendant had no power to look again at its decision of 30 January 2017 and, having done so to revoke it. Additionally, the Claimant submits that the decision of 10 February 2017 should be quashed since the Defendant failed to provide any adequate reasons for the revocation of the decision of 30 January 2017 either in the letter of 10 February itself or in the response to the pre-action protocol letter of 13 February.

At the oral hearing the focus of Ms Richardson’s submissions was ground 1. I will consider this ground in some detail. It will be possible to consider ground 2 more concisely. Before discussing the grounds, however, it is necessary to set out some of the relevant statutory provisions with which I am concerned.

Section 184 of the 1996 Act imposes a duty upon a local housing authority to make appropriate enquiries when it receives an application for housing which alleges that the applicant is homeless or threatened with homelessness. Once those inquires are completed further duties may arise. So far as material to this case section 184 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 enquiries 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)

They may also make enquiries whether he has a local connection with the district of another local housing authority in England, Wales or Scotland.

(3)

On completing their enquiries 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.

(4)

If the authority have notified or intend to notify another local housing authority under section 198 (referral of cases), they shall at the same time notify the applicant of that decision and inform him of the reasons for it.

(5)

A notice under subsection (3) or (4) 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 (see section 202).”

By section 188(1), once a local housing authority has reason to believe that a person may be homeless, eligible for assistance and have a priority need it shall secure that accommodation is available for that person pending the decision as to the duty owed by the authority. The duty to secure accommodation pursuant to section 188(1) arises “irrespective of any possibility of the referral of the applicant’s case to another local housing authority” – see section 188(2).

Section 193 of the Act provides:-

“(1)

This section applies where the local housing authority are satisfied that an applicant is homeless, eligible for assistance and has a priority need, and are not satisfied that he became homeless intentionally.

(2)

Unless the authority refer the applicant to another local housing authority (see section 198), they shall secure that accommodation is available for occupation by the applicant.”

The material parts of section 198 provide:-

“(1)

If the local housing authority would be subject to the duty under section 193 (accommodation for those with priority need who are not homeless intentionally) but consider that the conditions are met for referral of the case to another local housing authority, they may notify that other authority of their opinion.

…

(2)

The conditions for referral of the case are met if –

(a)

neither the applicant nor any person who might reasonably be expected to reside with him has a local connection with a district of the authority to whom his application was made,

(b)

the applicant or a person who might reasonably be expected to reside with him has a local connection with the district of that other authority, and

(c)

neither the applicant nor any person who might reasonably be expected to reside with him will run the risk of domestic violence in that other district.

(5)

The question whether the conditions for referral of a case are satisfied shall be decided by agreement between the notifying authority and the notified authority or, in default of agreement, in accordance with such arrangement as the Secretary of State may direct by order.”

Section 199 defines the circumstances in which an applicant for housing is to be regarded as having a local connection with a local housing authority. Section 200 provides :-

“(1)

Where a local housing authority notify an applicant that they intend to notify or have notified another local housing authority of their opinion that the conditions are met for the referral of his case to that other authority –

(a)

they cease to be subject to any duty under section 188 (interim duty to accommodate in case of apparent priority need), and

(b)

they are not subject to any duty under section 193 (the main housing duty),

but they shall secure that accommodation is available for occupation by the applicant until he is notified of the decision whether the conditions for referral for his case are met.”

Finally, I should mention sections 202 and 204 of the Act. Section 202 confers upon an applicant for housing assistance the right to request a review of decisions taken by a local housing authority which are adverse to his interest such as, for example, what duty, is owed to him or a decision to refer his case to another local authority. By virtue of section 204 an applicant who is dissatisfied with a decision upon review is entitled to appeal to the County Court on a point of law.

Ms Ferber accepts that the Defendant had no power to make the decision set out in the letter of 10 February 2017 if the Defendant had completed its enquiries under section 184 of the Act and made “final decisions” under section 193 prior to making its decision on 30 January 2017 except in very limited circumstances to which I will return. She submits, however, that the Defendant had not made all the relevant “final decisions” necessary under section 193 by that date. It had not reached a final conclusion about the duty owed to the Claimant under section 193 because it had referred the Claimant’s application for accommodation to Waltham Forest. She submits that this analysis is supported by the decision of the Court of Appeal in Crawley BC v B (2000) 32 HLR 636.

In that case the relevant facts were these. In January 1998 B’s three children were taken into care. Some months later, in July 1998 a court ordered that steps should be taken to reunite the children with B and her partner. At about this time B was due to be evicted from accommodation let to her by a housing association because of rent arrears. She applied to Crawley BC (hereinafter referred to as “Crawley”) for assistance as a homeless person. On 17 August 1998 Crawley decided that B was eligible for assistance and homeless but that she was not in priority need because she did not have dependant children actually residing with her. The local authority did not address the issue of whether or not B was homeless intentionally. In due course, Crawley adhered to its decision following a review pursuant to section 202 of the Act. As was her right, B appealed to the County Court. Before the hearing at the County Court, Crawley voluntarily undertook a review of its decision of 17 August 1998. It accepted that this decision was unreasonable and should be quashed as it related to B’s priority need, but the authority went on to conclude that B was intentionally homeless. B’s appeal in the County Court was allowed. The judge found that Crawley had to be treated as if it had decided the issue of whether B was intentionally homeless as at 17 August 1998 and that in the absence of fraud or deception Crawley was not entitled to revisit that decision. In reaching these conclusions the judge relied upon the decision of this court in R v Southwark LBC ex parte Dagou (1995) 28 HLR 72. The judge went on to direct that Crawley was required to secure accommodation for B under section 193(2) of the Housing Act 1996.

The Court of Appeal took a different view to the County Court judge. It concluded that the requirements of section 193(1) of the Act had not been made out as of the date of the hearing before the County Court judge and, accordingly, the duty under section 193(2) had not arisen. That point was addressed at length in the judgment of Buxton LJ (with whom Chadwick LJ and Sir Richard Scott V-C agreed). As I see it, however, the reasoning which underpins the judgment of the court is encapsulated in the following passage from the judgment of Chadwick LJ at pages 650 and 651.

“In my view the judge was wrong to accept the premise that section 184(1) of the Act required a local housing authority, in every case, to reach a view on the question of whether the applicant became homeless intentionally. A more careful examination of the provisions in sections 190, 192 and 193 leads to the conclusion that, if the local housing authority are satisfied that the applicant has no priority need, then it is not necessary for the authority to consider, also, the question whether the applicant became homeless intentionally. That is because, in those cases where there is no priority need, the duty owed to the applicant is the same whether or not the applicant became homeless intentionally. If the applicant has no priority need the only duty that can be owed to him is a duty to provide advice and such assistance as the authority shall consider appropriate in the circumstances in any attempts he may make to secure that accommodation becomes available for his occupation. That is the duty imposed, by section 190(3), in cases where the authority is satisfied that the applicant became homeless intentionally but is not satisfied that he has a priority need. That is also the duty imposed, by section 192(2), in cases where the authority is not satisfied that the applicant became homeless intentionally and is not satisfied that he has a priority need. Sections 190(3) and 192(2) are in identical terms.

It follows that the obligation imposed on a local housing authority by section 184(1) of the Act – to make such enquiries as are necessary to satisfy themselves whether any duty, and if so what duty, is owed to an applicant under Part VII – does not require the authority, in every case, to make enquiries in order to satisfy themselves whether or not the applicant became homeless intentionally. The obligation is to make such enquiries as are necessary for the purpose described. If the authority, acting rationally, can satisfy themselves as to the duty owed to an applicant without making enquiries about intentionality, then such enquiries are not necessary to the decision which they have to make; and there is no obligation to make them. There is no obligation to make the enquiries because there is no need to decide whether or not the applicant became homeless intentionally; and it would be improper to decide that issue unless the enquiries have been made. So, in a case where the local housing authority can satisfy themselves as to the duty owed to the applicant without making enquiries as to intentionality, there is no basis for an assumption in law that the authority has reached any decision on that issue.”

I am prepared to accept that the decision in the Crawley BC case provides broad support for the proposition that Ms Ferber advances namely that a local housing authority is entitled to revisit a decision which it has communicated to an applicant for housing assistance in circumstances where either (a) it has not completed its enquiries under section 184 of the Act, or (b) it has made no final decision as to the nature of the duty it owes to an applicant. Accordingly, as it seems to me, the first issue for my decision is whether, on the facts in this case, the Defendant had completed its enquiries under section 184 of the Act and had communicated a decision to the Claimant as to the nature of the duty which it owed to him.

The terms of the letter of 30 January 2017 from the Defendant to the Claimant could not be clearer. The letter records, in terms, that the Defendant had satisfied itself that the Claimant was homeless, that he was eligible for assistance, that he had a priority need and that he was not homeless intentionally. In my judgment it is crystal clear that it had completed the enquiries mandated by section 184 of the Act.

The letter of 30 January goes on to notify the applicant that he had no local connection with the Defendant. It notified him too that he had a local connection with Waltham Forest. For that reason the Claimant was told that the Defendant had referred the Claimant’s application to that authority pursuant to section 198 of the Act. Thereafter under the heading “The Council’s Duty” the Defendant informed the Claimant that its decision meant that it was satisfied that the Claimant did not have a local connection with the Defendant and that “we are, therefore, unable to provide you with accommodation”.

It seems equally clear to me that as of 30 January 2017 the Defendant had made a decision about its duty under the Act. The letter of 30 January constitutes a clear communication to the Claimant that the Defendant owed him no duty to provide accommodation.

On the basis of the clear wording of the letter of 30 January 2017 I would be disposed to conclude, as a matter of fact, that the Defendant had completed all appropriate enquiries under section 184 of the Act and had made a final decision as to the nature of its duty under section 193 in that it had determined that the Claimant’s application should be referred to Waltham Forest.

Ms Ferber seeks to dissuade me from this view. She submits that the Defendant had made no final decision as to its duty precisely because it had referred the Claimant’s application to Waltham Forest. She submits that until a decision had been made on that referral there had been no final decision upon the nature of the Defendant’s duty.

I do not accept that submission. Upon a referral by one local authority to another the authority to which the application is referred is bound to accept it if the conditions for referral are met. The 1996 Act provides a mechanism whereby disputes about the referral conditions can be determined. If a dispute arises and is resolved in favour of the referring authority the authority to whom the application is referred is bound to deal with it and it will be bound by the view which the referring authority has reached about homelessness, eligibility for assistance, priority need and intentional homelessness. Conversely, if the authority to which the referral has been made shows that the conditions for referral have not been met the referring authority will owe to the applicant the duty under section 193(2) to “secure that accommodation is available for occupation by the applicant”.

It seems to me that this conclusion is supported by the reasoning and decision in Dagou. The facts in Dagou were very similar to the facts in the instant case. The Applicant Ms Dagou applied for assistance to the London Borough of Southwark. That housing authority found that she was homeless, in priority need and not intentionally homeless but it also found that she had no local connection with its area. Accordingly it referred her application to the London Borough of Newham. In due course an officer from Newham wrote to Southwark setting out reasons why it should conclude that the applicant had been intentionally homeless. As a consequence of those representations Southwark reconsidered its decision and in due course decided that the applicant had indeed been intentionally homeless.

Sir Louis Blom-Cooper QC sitting as a High Court Judge quashed the later decision. One possible reading of the reasoning of the judge for reaching his decision is that he considered there to be a broad principle to the effect that once a decision was made under the relevant provisions of the legislation then in force (the Housing Act 1985) it could not be revisited unless fraud or deception was established on the part of the applicant. In Crawley, Buxton LJ, with whose judgment Chadwick LJ and Sir Richard Scott V-C agreed, expressly doubted the validity of such a broad principle – see page 645 of the report. However no authority subsequent to Dagou has questioned the actual decision made by the learned judge. Further no one has doubted his legal analysis or characterisation of what is involved when a referral from one local authority to another on the basis of local connection takes place. At page 82 of his judgment the learned judge said this:-

“In my view the section 67 notification is distinct and separate from the stages leading up to a finding of unintentional homelessness by the applicant who was a person in priority need. The referral under section 67 is an executional performance of a full housing duty brought into existence by the finding of the local authority after having completed its inquiries under section 62.”

Notwithstanding that the judge was concerned with the Housing Act 1985 which has somewhat different wording from the successor legislation with which I am concerned I can see no basis to conclude that this analysis by the judge is incorrect. To repeat, so far as I am aware this part of his judgment has never been doubted notwithstanding the somewhat different wording with which he was dealing in the 1985 Act compared with the relevant wording of the 1996 Act. In my judgement this part of the reasoning in Dagou provides considerable support for the conclusions which I have expressed above.

I have reached the clear conclusion that the evidence establishes that the Defendant completed its enquiries on all matters relevant to establishing the duty, if any, which it owed to the Claimant under Part VII of the Act and, further, it had in substance made a final decision as to the duty owed. That final decision was communicated to the Claimant by the letter of 30 January 2017.

That does not mean that the Claimant necessarily succeeds in this claim. On the basis that my conclusions thus far are correct (contrary to the submissions of Ms Ferber), it is common ground between Ms Ferber and Ms Richardson that the Defendant did have power to revisit its decision of 30 January 2017 in very limited circumstances. It could revisit the decision in the event of fraud or deception on the part of the Claimant which it had induced the decision; it could also revisit its decision if, in making it, it had proceeded “from a fundamental mistake of fact” – see Porteous v West Dorest DC (2004) HLR 30.

There is no suggestion of fraud or deception on the part of the Claimant. However, Ms Ferber is disposed to argue that the decision of 30 January 2017 was brought about by a fundamental mistake of fact on the part of the Defendant.

As I have said that assertion was made in the letter which was sent to the Claimant’s legal advisers in response to the pre-action protocol letter of 13 February 2017. It is noteworthy, however, that there was no attempt made in that letter to identify the fundamental mistake of fact which had brought about the decision of 30 January 2017.

In her skeleton argument, Ms Ferber seeks to put flesh upon this contention. At paragraph 28 she asserts that the Defendant “purported to accept the Claimant as eligible but that was not borne out by the facts described by Waltham Forest when they rejected the Claimant’s eligibility”. At paragraph 29 she continues:-

“The fundamental nature of the Defendant’s mistake is amply demonstrated by the section 184 decision letter issued by the Defendant on 10 February 2017 which gives full and clear reasons why the Claimant is not eligible (contrary to the decision made on 30 January) based on facts that the Defendant had previously been mistaken about.”

In my judgment this is not a correct characterisation of what has occurred in this case. On the evidence before me all material facts were provided to the Defendant prior to its decision of 30 January 2017. In particular, the unchallenged evidence of the Claimant is that the Defendant was provided with a copy of the decision made by Waltham Forest to refuse assistance. The reality of this case, in my judgment, is that if any mistake was made by the Defendant it was a mistake which occurred by reason of a failure on its part to properly apply the eligibility criteria for assistance to the facts disclosed by the Claimant. That becomes clear, in my judgment, from the Defendant’s letter of 20 February 2017. It is to be noted that Ms Ferber does not suggest that a mistake characterised in this way would permit the Defendant to re-visit its decision of 30 January 2017. She accepts, to repeat, that the Defendant must establish a fundamental mistake of fact which results in the decision in question. In my judgment the evidence in this case does not establish any fundamental mistake of fact on the part of the Defendant which led it to its decision of 30 January 2017.

In my judgment, ground 1 is made out in this case. On that basis I propose to make a quashing order in respect of the decision made by the Defendant and communicated by its letter of 10 February 2017. That means that the Defendant’s decision of 30 January 2017 subsists.

I can deal with ground 2 in a few short sentences. In its letter of 10 February 2017 the Defendant sets out its reasoning for reaching the conclusion that the Claimant was “not eligible for assistance”. The reasoning may or may not be correct – I am not called upon to adjudicate upon it. There can be no doubt, however, that reasons for the decision are provided. That said the letter contains no reasons as to why the Defendant was justified in making this second decision so soon after a decision completely to the contrary. Instinctively, it seems to me that fairness demands not just that the Defendant should provide reasons to justify its second decision (which it did) but also reasons to support its view that it was entitled to make a second decision (which it did not).

It is true that in its response to the Claimant’s pre-action protocol letter the Defendant asserted that it had made a fundamental mistake of fact but provided no clue as to what that mistake had been.

In short I am satisfied that the Defendant was under a duty to provide reasons to justify its view that it was entitled to make the decision communicated in the letter of 10 February 2017 and that prior to the commencement of these proceedings it failed to do so.

That leaves the complaint made by the Claimant that the Defendant is in breach of section 200(1) of the Act in that it has failed to secure that accommodation is available for occupation by the Claimant “until he is notified of the decision whether the conditions for referral of his case are met”. On Ms Ferber’s analysis that duty existed only until the decision communicated by the letter of 10 February. That position cannot be maintained in the light of my conclusions above. In the light of those conclusions it seems to me that the Defendant has owed the duty under section 200 of the Act from 30 January 2017 and will continue to owe it until the issue of the referral is resolved.