ZR v London Borough of Haringey & Anor

The Claimant is 25 years old and originally from Sudan.   He entered the UK on 17 August 2022 and applied for asylum on arrival.  His asylum claim was accepted and he has refugee status. He issued these proceedings on the 20th of December 2023. They were subsequently amended on the 15th of January 2024. He challenges:

The Claimant submitted that the claim was best understood by reference to evidence which had been filed in another case R(MX) v SSHD (AC-2023-Lon-003352. I have considered that evidence notwithstanding the submission of the Second Defendant that it was inappropriate to seek to rely on grounds and evidence filed in other litigation.

Part VI of the 1999 Act is concerned with support for asylum seekers. Section 94(3) identifies the date on which a claim for asylum is considered to have been determined:

The period referred to in s.94(3) is itself defined in Regulation 2(2) and 2(2A) of the Asylum Support Regulations 2000 (“ASR 2000”) as follows:

Regulation 2(2A) applied to the Claimant so that the statutory 28 day period began on the date of the letter granting him asylum. At that point he was living in asylum support accommodation. In those circumstances Regulation 22 of the ASR provides:

The combined effect of these provisions, for a person in the Claimant’s position, is that he had a statutory entitlement to a notice period to leave his asylum support accommodation which was the later of:

In practice, refugees in his circumstances should receive four distinct communications in relation to the transition from asylum support:

Prior to August 2023 the practice of the Second Defendant was to commence the 28 day period from the date of the ASDL. The Claimant contends that usually the ASDL would not be sent until after the BRP had been issued and sometimes not for a significant period afterwards (although this appears to reflect variability in the handling of individual claims rather than a practice in itself). There are also a number of Home Office publications and ministerial statements which indicate that the 28 day period commences from the issue or receipt of the BRP, perhaps reflecting an assumption that the ASDL and the BRP would be issued simultaneously or within a short period of each other. This view of the practice appears to have been shared by charities and other bodies working to support refugees. A report from the Independent Chief Inspector of Borders and Immigration (“The Chief Inspector’s Report”) entitled “An inspection of asylum casework” and dated the 29th of February 2024 records:

In its context within the report this was a reference to the fact that in August 2023 the Second Defendant changed the notification practice so that the commencement of the 28 day period was taken from the date of the Grant Letter. Notice would expire at the end of this period or 7 to 9 days from the date of the NTQ if it had not been served during the 28 day period or where notice under the NTQ expired only after the 28 day period (the “August practice”). This was, in effect, a return to the statutory timetable.

There does not appear to have been any prior consultation in relation to this alteration in the prevailing practice, but some voluntary sector organisations received a note from the Home Office on 1 August entitled ‘Lines on asylum support cessations’ which identified the change prospectively. On 25 August the Home Office circulated a further document, to a limited audience, entitled ‘Discontinuation FAQ’. This document stated that “we are now taking steps to ensure that support is stopped as soon as our legal obligations end” thus confirming the effect and purpose of the August practice and adding “this is not a change in policy”.

On the 15 September 2023, as it later emerged, there was a further change so that the 28 day period was taken from the date of issue of the BRP. Notice would expire at the end of this 28 day period or 7 to 9 days from the date of the NTQ to the extent the 7/9 day NTQ period fell outside the 28 day period (“the September practice”).

The effect of the introduction of the August practice appears to have been felt immediately. On 5 September 2023, some 143 organisations working with refugees or the homeless wrote to the Second Defendant and the Secretary of State for Levelling Up (“the 5 September letter”) in relation to “the recent changes to the process for people who have been recognised as refugees and are obliged to leave asylum support accommodation.” It was asserted that because of the changes many refugees were being given just seven days' notice and were being driven into “destitution and homelessness”.

This letter, from those well versed in the application of the legislation and the practice of the Home Office, is predicated on the 28 day period, prior to the implementation of the August practice, being tied to the receipt of the BRP:

The 5 September letter also reflects the wider objectives of those who had signed it in seeking a much greater change to the approach to notice periods for refugees so as to align their treatment with the position under The Homelessness Reduction Act 2017. This requires councils in England to support those who are homeless or at risk of becoming homeless within the next 56 days. The shorter period afforded to refugees also intersects with the 35 day period between an application for Universal Credit and a payment being made. The difficulty in practice for refugees is described in other evidence (Mr Elliot’s witness statement of 15 December 2023 in the MX proceedings) as being that accommodation support could not be accessed until an NTQ had been issued. Neither the August or September practice in fact reduced the notice period for the NTQ itself which could run concurrently with 28 day period or, in effect, extend it.

The primary remedy sought in the 5 September letter for the problems described was a return to the 28 day period running from a date no earlier than receipt of the BRP so that the government was urged to:

I note that the Claim Form in the present case seeks an interim order requiring 28 days notice to be given in every case adding:

The Home Office replied to the 5 September letter by letter of 3 November from the Deputy Director of Adult and Family Asylum Accommodation:

Curiously, this letter, asserting that there would be no departure from the statutory period of 28 days from the grant of asylum (although also referring to notification of that decision), makes no mention of the September practice. It appears to be simply restating and defending the August practice although it does, later, contain an assurance that an NTQ would only be issued once a BRP had been issued. The Home office does not appear to have communicated widely the further change represented by the September practice until a voluntary sector stakeholder meeting on 5 December 2023 when it described the August practice as having been temporary and short lived.

Once an asylum seeker has been granted refugee status they become “eligible for assistance” and may make an application to be accommodated by a Local Housing Authority under Part 7 of the HA 1996 which contains powers and duties to relieve emergency homelessness.

Once an application is received the Local Housing Authority has a number of immediate duties: to prepare a personalised housing plan; to consider whether it owes the applicant the “relief duty” under section 189B to take reasonable steps to assist an applicant to secure suitable accommodation is available for them for a period of at least 6 months; to inquire as to what substantive duty, if any, it owes the applicant pursuant to section 184(1) and to secure accommodation for those applicants it has reason to believe have a “priority need” as defined in section 189(1):

The only relevant priority need provision for the purpose of this claim is section 189(1)(c). Whether an applicant is “vulnerable” is a question to be determined by the Local Housing Authority rather than a medical practitioner acting on behalf of the individual (Simms v Islington LBC [2008] EWCA Civ 1083) and involves a comparative assessment (Hotak v Southwark LBC [2015] UKSC 30).

Where an applicant does have a priority need for accommodation and is not intentionally homeless there is an interim duty under section 188 HA 1996 to make accommodation available. In the absence of a priority need the duty is limited to preparing a personal housing plan and providing assistance and advice to the applicant to enable them secure accommodation for themselves (“the relief duty”):

A decision following the inquiry required under section 184(1) may be given to the applicant or to his legal representatives and may be sent by post or e-mail (see Dharmaraj v Hounslow LBC [2011] EWCA Civ 312 [22]). The Homelessness Code of Guidance 2023 (“the Code”) published by the Department for Levelling up Housing and Communities states (my emphasis):

The latter method of notification (making the decision available at council offices) has a statutory basis, as section 184(6) of the HA 1996 provides:

All applicants have a right to challenge a decision under section 184 by requesting a review under section 202. Where such a request is made, the Local Housing Authority has a discretionary power under section 188(3) to secure that accommodation is available pending the review.

How that discretion should be exercised was considered by Latham J. in R v Camden LBC ex p Mohammed (1998) 30 HLR 315, QBD as approved in R v Brighton & Hove Council ex p Nacion (1999) 31 HLR 1095, where the Court of Appeal emphasised the high hurdle which would have to be cleared in order for the court to intervene by way of judicial review, such that it would only do so in an exceptional case. The exercise of the discretion necessarily involves a balancing exercise. The guidance in Mohammed is incorporated in the Code:

In ex p Nacion (above) Tuckey L.J said (at p. 1100):

The review decision under section 202 or where appropriate the initial decision may be challenged by way of an appeal on a point of law to the County Court under section 204 HA 1996. There is then a power to secure that accommodation is made available for an applicant pending the hearing of an appeal (see section 204(4)). The County Court has a broad range of statutory powers in connection with an appeal including the power to order that interim accommodation is made available:

Thus, the jurisdiction of the courts in relation to the provision of interim accommodation once a section 202 review decision has been made resides within the County Court rather than the High Court.

The Claimant was provided with accommodation by the Second Defendant in   accordance with s.95 of the 1999 Act, in Muswell Hill, Finchley. He had been residing there since his arrival in the UK. On 30 October 2023, the Claimant received a letter from the Second Defendant confirming that he had been granted refugee status. His BRP was issued on 8 November 2023.

A further letter from the Second Defendant (his ASDL letter), dated 14 November 2023 stated “you no longer qualify for support under section 95 of the Immigration and Asylum Act 1999”. It went on to confirm that asylum support would end on 6 December 2023 and that his eligibility for accommodation at the address at which he had been living would “cease on 6 December 2023 when you will be expected to leave”. The Claimant’s witness statement suggested that he had received both the BRP and the ASDL around 14 November, in line with the general practice described by the Second Defendant. By 17 November the Claimant was using his BRP to claim Universal Credit at his local Job Centre. On 26 November 2023, the Claimant received a further letter (his NTQ) giving notice to quit his accommodation by 6 December. The Claimant was therefore issued with his BRP prior to being sent the ASDL and NTQ. The practise of issuing the documents in this sequence rather than all together was, on the wider evidence, one which dated back until at least 2014.

Although the Claimant’s Statement of Facts and Grounds queried which practice had been applied, it is clear that his case was dealt with under the September practice, the discontinuation date being 28 days after the issue of the BRP. He was not subject to the August practice and, despite any lack of communication on the part of the Home Office as to its existence, the details of his case suggest that the September practice was being applied to those in his position. Had the pre-August practice applied, the Claimant would have had a further six days' notice because the 28-day period would have run from the date of the ADSL. He was however afforded a period calculated by reference to the issue of the BRP rather than the date of grant. Had the period been calculated from receipt of the BRP, he would have had an additional 4 to 5 days.

During his notice period the Claimant says that an officer of the First Defendant (an Arabic speaker) had visited him (sometime at the end of November 2023) to assist him with filling in a homelessness application. This would appear to have been a member of the First Defendant’s Resettlement Team who were providing non-statutory assistance. The Claimant gave him his e-mail address and phone number expressing, he says, a preference to be contacted by telephone. The device he used to check his e-mail was his mobile phone. In his witness statement of 19 December 2023) he says “The employees said they could not help me find accommodation until I was actually homeless. I was asked to contact them the day before my eviction date.” This account is borne out by the First Defendant’s internal records (the case notes of Priscilla Garbrah) which record the Claimant giving the same explanation after he had contacted the First Defendant to seek accommodation.

It is necessary in considering the issues that remain between the Claimant and the First Defendant, to look at the sequence of events which led to the instruction of solicitors and the commencement of these proceedings. The Claimant’s skeleton argument says, somewhat laconically: “that after some initial confusion he managed to instruct solicitors”.

His present solicitors made contact with him on 21 November having been referred by Harringey Migrant Support Centre. They were not formally instructed at that stage. There was further contact on 28 November, with the assistance of an Arabic interpreter, when instructions were taken which were used to draft an initial client care letter and a pre-action protocol letter (“PAPL”). By that date the claimant had received his ADSL which identified the date on which he would cease to be eligible to be accommodated as the 6th of December, which would have been apparent when his instructions were taken.

The paralegal dealing with his case drafted a PAPL and sent it to her supervisor on 28 November. The paralegal’s evidence (in her witness statement of 19 December 2023) is that she believed that her supervisor did not review the PAPL until 5 December, the same day it was sent to the First Defendant (although it was in fact addressed to the London Borough of Lambeth) and the day before the Claimant was due to lose his accommodation. It is not clear why there was gap of a week between the preparation of the PAPL and it being sent to the First Defendant. The practical remedy sought in the PAPL was identified as “interim accommodation pending the outcome of the first Defendant’s inquiries into the Claimant’s application as homeless.” This was essentially addressed to the question of whether the Claimant was in priority need so that the First Defendant would have been obliged to accommodate him. A report was attached to the PAPL which was described as a “psychiatric report”.

The Claimant presented himself as an urgent case at the First Defendant’s offices for an in-person homelessness assessment on the 5 December 2023 at 11.45am. The Claimant says there were communication difficulties at that meeting because the interpreter, who was attending by telephone, was cut off.

He accepts that, following the interview, there were a number of emails requesting further information to which he responded during the course of that day and into the afternoon of the 6th of December (see further below). The email exchanges were exhibited to the First Defendant’s evidence. The Claimant was able to answer the questions asked of him and to attach documents to his emails. It is evident that the First Defendant’s staff dealt with him as an urgent case and notwithstanding that on 5 December he was not yet homeless.

The PAPL was sent at 12.12 on 5 December by email. It indicated that the solicitors were “assisting the proposed Claimant” but did not say that legal aid was yet to be granted. There was no dispute that this was intended to be a PAPL.

Under the pre-action protocol for judicial review a Defendant’s response should normally be provided within 14 days. Paragraph 21 of the protocol provides:

In this case an immediate response was requested, by 4:00 pm on the same day. There was a reply from the First Defendant at 1:34 pm informing the Claimant’s solicitors that the Claimant was in the process of being assessed. There was a further e-mail at 3:48 pm giving an initial view that the First Defendant did not consider the Claimant met the threshold for section 188 accommodation. The Claimant’s solicitor then queried why he was not thought to be in priority need, pointing out that a “psychiatric assessment” had been provided with the PAPL. There was a response to that e-mail within about 15 minutes indicating that the First Defendant would issue a decision letter by the end of the week and confirming that it had had sight of the assessment. There was an immediate response from the Claimant’s solicitor saying that they would be proceeding to judicial review “tomorrow”.

The assessment which accompanied the PAPL was contained in a report of 18 July from Dr Wendy O’Neill following a meeting with the Claimant on 30^th May 2023, so prior to the grant decision. She had been instructed by the Islington Law Centre in connection with the Claimant’s asylum application to “conduct a psychological assessment and prepare a report for court dealing with issues of current mental health diagnoses, symptoms and causation; barriers to disclosure; treatment needs; risk of suicide/self-harm; impact of removal to Sudan; and the ability to provide oral evidence.” She is a clinical psychologist rather than a psychiatrist although it was not in dispute that as a mental health professional, she could provide an opinion on the matters referred to her.

Her opinion included that the Claimant “meets diagnostic criteria for a diagnosis of PTSD” arising from his experiences in Sudan, Libya and when making sea crossings of the Mediterranean and the Channel. In the discussion of his state of mind at the time of the examination the focus was on the pending asylum claim. She observed that his mental health was being impacted by the uncertainty around his immigration status saying:

During his interview on the 5th of December the Claimant had been assisted to complete an application form which confirmed his e-mail address and indicated that the council could communicate with him at that address. The purpose of the interview was primarily to establish whether the council had to house him or owed him the relief duty and if so the terms of his personalised housing plan.

At 4:33 pm the council officer who had interviewed him requested documents via his e-mail address, including a full set of bank statements and proof of income, which were provided by the Claimant within an hour. There followed further e-mail exchanges in which the Claimant was asked for and provided a number of further documents.

On the following day the same officer attempted to contact him by telephone but he could not be reached. She emailed at 9.25am to ask him to answer his phone. He replied by email at 09.33 saying: “Good morning. I was in class so I missed your call. Please call back” (he also added that he was attending to learn English for four days of the week).

The vulnerability assessment and personalised housing plan were completed on the same day and sent by email to the Claimant. He responded by e-mail attaching a copy of the plan with his signature on it. The vulnerability assessment was carried out over the telephone by way of a three-way call between the Claimant, the First Defendant’s officer, and an Arabic interpreter. There is a narrative section dealing with health issues which includes the following:

The overall presentation was therefore that he did not have any current significant mental or physical health problems and had limited support needs. He was assessed to be a young man of 25 years of age in good physical health.

On the 7th of December the First Defendant made its decision, pursuant to section 184(3) of the HA 1996, that the claimant was eligible for assistance and was homeless but did not have a priority need for accommodation. Thereafter the First Defendant sought to relieve the Claimant’s homelessness by referring him to organisations which might provide him with accommodation. The decision letter was emailed to the Claimant who had been asked whether the council could discuss his case with his solicitors (in an earlier e-mail on the same day). No response was received to either of the First Defendant's emails of the 7th of December. There was no indication that they had not been delivered and it was not disputed that they had been received at his account. The section 184 decision sets out and explains the decision and the relevant law in straightforward terms.

The evidence from the First Defendant’s housing needs officer included the following:

The Claimant’s evidence in relation to the emails of 7 December is that he did not remember receiving them. He added:

His evidence was not therefore that he could not receive and deal with emails but that he must have overlooked these particular communications.

He went on to explain that by this stage he was homeless and it became harder for him to manage his emails and use his phone. In relation to the request for consent to speak to his solicitors he said: “I can only think that the problems I had after I became street homeless caused me to miss it.”

The paralegal dealing with his case experienced difficulties contacting him by e-mail but that appears to be because she had the wrong e-mail address. She was nevertheless able to obtain documents from him via phone and WhatsApp messages between 8 and 13 of December. In due course she sent forms to him by e-mail, once she had the correct address, to which he responded. The Claimant was not, it appears, asked whether he had been sent a decision letter nor was any query raised with the First Defendant given that a decision had been promised within a matter of days on the 5th of December.

It is not in issue that once the notice to quit his asylum accommodation expired the Claimant had no other accommodation to go to. The Claimant was street homeless from 6 December 2023 and resorted, at times, to sleeping on a bench in a park close to the First Defendant’s Council Offices. Following the decision letter of 7 December it was open to the Claimant to seek a review and accommodation pending that review. He did not do so.

On 13 December the Claimant was granted public funding. On 19 December the Claimant served a PAPL on the Second Defendant. In that letter the claimant threatened to issue proceedings for judicial review unless it received a response by 11 am on 20 December. There was no further communication with the First Defendant.

The claim against both Defendants was issued on the 20th of December 2023 asserting that the First Defendant had failed to provide the Claimant with accommodation pending a decision under section 184 as to which housing duty, if any, was owed to the Claimant. The application for urgent consideration and interim relief was against the First Defendant alone. It recited that:

The evidence in support of the application said:

On 20 December 2023, Lang J. granted the Claimant’s application for urgent interim relief and ordered the First Defendant to provide suitable accommodation for the Claimant, in accordance with section 188(1) Housing Act 1996, no later than 4.00 pm on Thursday 21 December 2023. There were problems with placing the Claimant in accommodation that evening so he remained street homeless for a further night (in breach of Lang J’s order) but he was finally accommodated by the First Defendant and has remained so since. The Claimant relied in argument upon the fact that the judge concluded that he was in priority need. The First Defendant submitted that the judge was wrong to arrogate to herself a decision which it was the duty of the First Defendant to make but conceded that, in the circumstances, it was perhaps not surprising that she had concluded that the Claimant was vulnerable. She had been told there was no reasoned decision by the First Defendant and was entirely unaware of the basis on which it had reached a contrary view.

On 21 December the First Defendant provided the Claimant’s solicitors with a copy of its section 184 decision. They in turn requested a review under section 202 HA 1996 by e-mail on the following day, 22 December. It was implicit in that request that it was accepted that a decision had been made. The First Defendant considered whether it should provide the claimant with accommodation pursuant to section 188(3) HA 1996 pending the review but decided not to do so and sent a letter to the Claimant, with a copy to his solicitors, informing him of that decision.

On 28 December the First Defendant’s Senior Housing Needs Practitioner wrote to the Claimant’s solicitors addressing various points raised in the review request of 22 December. That response included the following:

On 27 December 2023, the First Defendant applied for Lang J’s order to be set aside on the basis that it was based upon a factual error in that a determination pursuant to section 184 of the Housing Act 1996 had been made on 7 December 2023. This factual error had a legal consequence since the First Defendant did not owe the Claimant a duty to accommodate him pursuant to the Housing Act 1996 once the decision had been made. The First Defendant contended that the Claimant knew that this was the case when applying for relief.

On 5 January 2024, the Claimant responded to the application arguing that interim relief had been properly obtained and that the decision of 6 December had not been properly served and was of no effect.

On 8 January 2024, Stacey J. ordered the Claimant to serve an amended statement of facts and grounds within 7 days; that is by 15 January 2024.  The Defendants were to file and serve any Amended Summary Grounds of Defence within 14 days thereafter. 

On 23 January 2024 the First Defendant wrote to the claimant’s solicitors to say that it would agree to accommodate the Claimant pending the section 202 review. The reasons for that decision were that the costs of opposing the claim were likely to exceed the costs of providing accommodation and that it was likely the case would not be listed until after the First Defendant had made its review decision so that the High Court would have ceased to have jurisdiction.

On 24 January 2024 the First Defendant made an open offer as to costs prior to filing its response to the amended statement of facts and grounds saying that it had taken a pragmatic and commercial decision in relation to accommodating the Claimant. Its offer was in the following terms:

The Claimant rejected that offer on 25 January 2024, disagreeing with the First Defendant’s position in relation to the section 184 decision and asserting that it had been successful in obtaining accommodation so that the proceedings were therefore justified and that the First Defendant should pay its costs.

On 1 February 2024 the Claimant asked for his claim against the Second Defendant to be listed as a matter of urgency but stayed as against the First Defendant.

By letter of the 2nd of February the First Defendant maintained its position and said that it would not pay costs but proposed an order setting aside the order of Lang J.

By an application dated the 1st of February 2024 the Claimant applied for permission to rely on a reply to the summary grounds of defence, for an order listing the application for interim relief and for a stay of the claim against the First Defendant pending the outcome of the claim against the Second Defendant.

By letter of the 2nd of February the Second Defendant objected to the Claimant’s applications, giving reasons. Objection was taken to the Claimant’s proposed reliance on the witness statement of Derek Bernardi which had been served after the Summary Grounds of Defence were filed.

On 5 February 2024 Choudhury J. ordered, amongst other things that:

It is now clear that Choudhury J did not have sight of the representations made on 2 February by the Second Defendant before making his order. The Second Defendant invites the court to set aside the order granting the Claimant permission to serve a reply and to rely on evidence in support of that reply.

On 15 February 2024 the First Defendant made its review decision concluding that the Claimant did not have a priority need for accommodation but stating that it would secure accommodation for him until he was offered accommodation by the YMCA. The referral to the YMCA was pursuant to the relief duty. On the following day, the First Defendant again invited the Claimant to agree to the discharge of the interim order made by Lang J.

On 4 March 2024, Chamberlain J. made an order, the effect of which was to require the following matters to be decided:

In fact, the First Defendant’s application is unopposed because it agreed to accommodate the claimant pending his appeal under section 204 of the Housing Act 1996. What remains is the question of costs, and the Claimant’s Article 3 claim which, it is said arises, because the First Defendant’s decision left the Claimant homeless for 15 days between 6 and 21 December 2023, including for one night after Lang J’s order had been made. Thus, there is a claim for damages which is unresolved by the agreement to accommodate.

The First Defendant’s decision of the 7th of December was communicated to the claimant by e-mail. There is nothing to suggest that this was inappropriate, unreasonable, or unjustified as the Claimant has variously argued. The Code plainly envisages that e-mail may be used and it is difficult to think of a method which would have been a better substitute in the circumstances. There was extensive e-mail correspondence with the claimant on the 5th and 6th of December to which he had responded promptly and in English. The Claimant’s solicitors themselves corresponded with him by electronic means using WhatsApp and e-mail, only encountering difficulties with the latter because of an incorrect e-mail address. It was not necessary for the First Defendant to ensure that the claimant understood the content of the decision (see Ali v Birmingham CC [2009] EWCA Civ 1279) but in the context of this case it was reasonable for the First Defendant to conclude that the Claimant would understand the purpose and effect of the decision, given his recent interviews. In any event he had the assistance of solicitors. The Claimant's own evidence suggests that he simply overlooked the emails rather than that he faced any insurmountable difficulty in dealing with them, even after he had left his accommodation.

The fact that there was no additional response to the PAPL does not, in my view, take the matter further. The Claimant’s solicitors had waited a week after the preparation of the initial draft to send the letter to the First Defendant and had asked for a response on the same day. The First Defendant's e-mail of 5 December clearly set out its position and was understood to have done so by the Claimant’s solicitors. When they received a response, they indicated immediately that they were going to proceed to judicial review on the following day. The pre-action protocol sets out the steps that should be taken before proceedings are commenced.

Although the First Defendant had asked the Claimant whether it could pass the decision of 7 December onto those representing him (and did not do so because it did not receive a reply), it would have been open to the First Defendant to notify the Claimant’s solicitors that a decision had been reached and had been given to him. They did not require his permission to do so. There is therefore force in the criticism that some notification, albeit brief, ought to have been given to the Claimant’s solicitors. However, that omission needs to be seen in the context of the conduct of the Claimant’s representatives.

There is no explanation for the delay in issuing proceedings between 6 and 20 December, a period when the Claimant was homeless. There was no attempt to contact the First Defendant during this period or to make any inquiry about an outstanding decision. The solicitors were in contact with the Second Defendant, sending a PAPL and, again, giving a highly truncated timetable for a response, suggesting that the case, as against the Second Defendant, was urgent. There was no good reason why the First Defendant could not have been notified of the Claimant's intention to apply for urgent interim relief. Had that been done the fact that a decision had been made would have become apparent. As it was, the application made to Lang J. was on the false premise that the First Defendant had not taken a decision and, implicitly, had not considered the medical evidence which had been obtained in July and which was placed before her. Neither was true.

The First Defendant had in fact made a detailed and urgent assessment of the Claimant’s case as soon as he presented himself. The conclusion that he did not have a priority need was not arguably irrational, as asserted in the Amended Grounds, both on the information before the decision maker and her interviews with the Claimant. The suggestion that there was a breach of the Tameside duty or Article 3 does not add anything to the rationality challenge. The decision involved an assessment which a specialist local authority housing officer was well placed to make, and which took into account the material available, including the earlier psychologist’s report. The Claimant was given appropriate notification of the decision. The decision of the 28 December 2023 not to provide the Claimant with interim accommodation involved the exercise of a discretion with which the court should be slow to interfere (ex p. Mohammed above). There is no arguable ground for judicial review which has a realistic prospect of success and it is a sensible use of the court's time and resources to determine that question now. I refuse permission as against the First Defendant.

The First Defendant made reasonable proposals to resolve matters in its offers of 24 January 2024 and 16 February 2024, which the Claimant rejected. Once the initial decision of 7 December 2023 was sent to the Claimant’s solicitors the appropriate course was to ask for a review, not to maintain the claim. Once the review decision of 15 February 2024 had been made it should have been appreciated that the High Court no longer had jurisdiction.

As the Administrative Court Guide makes clear, careful consideration needs to be given to applications for urgent interim relief, and in particular whether they should be made on notice to the party against whom they are directed or whether a without notice application can be justified. It was not justified in this case. The Order of Lang J. should be set aside.

The Claimant submitted that because he had obtained accommodation he should be entitled to his costs, relying on M v Croydon [2012] EWCA Civ 595. While the court should approach with caution arguments that a particular course was only taken for pragmatic reasons the Claimant initially obtained accommodation as a result of the flawed application before Lang J. I consider it to be a fair conclusion that the First Defendant did in fact find itself in a position where it was expedient to continue to house the Claimant rather than waste public money in an argument which was likely to be overtaken by proceedings in the County Court. In the circumstances the Claimant should pay the First Defendant's costs.

I was asked by the First Defendant to make an order requiring the Claimant’s solicitors to show cause why a wasted costs order should not be made against them. I think it preferable for a formal application to be made if such an order is pursued. I have not entirely absolved the First Defendant in relation to its failure to inform the Claimant’s representatives that a decision had been taken on 7 December 2024 even if, as I have concluded, its significance is eclipsed by what followed.

As far as the Second Defendant is concerned it cannot be argued that the practice adopted either in August or September of 2023 is unlawful in itself (see R (on the application of A) v Secretary of State for the Home Department [2021] UKSC 37), both were within the statutory scheme. The Claimant was not subject to the August practice and to the extent that it may have been implemented without consultation the representations made to the Second Defendant resulted in a modification which had the practical effect of extending the notice period beyond that required under the legislation.

That extension was to run the 28 day period from the BRP. This was responsive to the representations which had been made in the 5 September letter and was the practice which it appears was understood to be in place previously, at least in terms of which document would precipitate the notice period (as per the Claimant’s grounds “…the previous practice of calculating the “deemed determination date” from the date of receipt of the BRP”). The difference in practice between the issue and receipt of the BRP is a matter of days. The same might be said in relation to the difference between using the BRP or the ADSL as the inception point for notice if the scheme operated in the way in which it was generally intended to. The Claimant’s case is an example in point given that he received his BRP and ADSL either at the same time or within a few days of each other (on 14 November according to his evidence). The fact that there may be individual cases, whether under the pre- or post- August/September 2023 practices, in which errors occur or the prevalent practise is departed from is not a ground for a public law challenge and may simply be due to the facts or circumstances of those cases.

The Claimant suffered no obvious prejudice as a result of the September Practice. The suggestion that the detriment to him is that he would have had a further six days to obtain legal advice and “to bring proceedings and obtain the order that was obtained” does not lie easily with the facts. He had seen solicitors who had drafted a PAPL on his behalf a week before he appeared at the First Defendant's offices seeking accommodation. By that stage he had already (some three weeks earlier) applied for Universal Credit at his local job centre using his BRP. The Claimant’s skeleton argument asserts that the NTQ is the “critical” document because many local authorities require it before they will treat someone as homeless. If, as appears to be the case, the complaint is that local housing authorities were reluctant to act until they were provided with a copy of the NTQ then it is difficult to see what difference the Second Defendant’s practice made. The NTQ had always been sent out after the BRP and ADSL and neither the August nor the September practice made any change in that respect or affected the interaction between the 28 day and the 7 day period, depending upon when the NTQ was issued. The objective of issuing all documents at the same time may well be desirable, if attainable, but there is no suggestion that it had ever been a practice or policy promulgated by the Second Defendant and then departed from. Equally there is no evidence, as the Claimant’s grounds assert, that the First Defendant would not accept “even an NTQ as triggering its responsibilities.” Further the delay in bringing proceedings and obtaining an order relates to the period after the decision of the First Defendant had been made. The Claimant’s solicitors did not issue proceedings or seek injunctive relief until 20 December.

The assertion that there was a breach of Article 3 by the Second Defendant is said in the Claimant’s grounds to arise because:

As a result, it said, the Secretary of State “..needs to understand, and confront, what happened in this case.”. This strikes me as a non-sequitur. The reason the Claimant was street homeless is because he was assessed by the First Defendant as not being in priority need, a decision which the First Defendant maintained on review. The Second Defendant’s September Practice resulted in a marginal reduction in the overall notice period that might be afforded in some cases; in others, depending on when the NTQ was issued, it will have made no difference.

There is nothing about any of the applications before me which is urgent as far as the Claimant is concerned. The First Defendant complied with its obligations towards him as a person entitled to assistance and has in fact provided him with accommodation. Any urgency in relation to his accommodation has long since passed. The Claimant’s amended grounds are dated 15 January 2024 and acknowledged that urgent relief was not necessary in respect of the claim against the Second Defendant. A little over a fortnight later in its Reply, dated 1 February, the Claimant reversed that position entirely and asserted that interim relief was urgently required because of “the number of new cases which his solicitors and others are seeing, together with the scale of harm and hardship which vulnerable people are experiencing…” The evidential basis for this statement was identified as the first witness statement of Mr Bernardi dated 1 February 2004.

Mr Bernardi’s witness statement said that he had been instructed in 10 cases, including the present case and MX. The latter were clearly extant cases before the amended grounds of 15 January. My observations as to the 8 additional cases are as follows:

In all of these cases, where details are given, the Claimant’s solicitors were not instructed until shortly before or, mostly, just after the individuals concerned had been made homeless; the event which appears to have precipitated their involvement. They have in common that they are cases where the usual sequence in which documents were issued was not followed or they involved a departure from the practice of issuing a BRP and an ADSL in close proximity to each other; further they are cases where there was either a slow or no response from the local authority (in contrast to the present case) and where a priority needs decision was not made in the Claimant’s favour. They are not, however, on any logical basis examples of the September practice (since it was not followed) causing prejudice to an applicant.

The Chief Inspector’s report gives some idea of the overall scale of asylum and accommodation claims which is the background to the contention that the September practice had caused widespread problems. At the inception of the streamlined asylum process, which was adopted in July 2023 for some claims, there were over 21,000 eligible claimants. Of these, by October 2023, some 5,208 had been granted asylum and 14,768 were still awaiting a decision. The refusal figures were very low indeed for this asylum stream so most of those processed would have been leaving asylum accommodation. These figures do not include all legacy claims which accounts for the fact that at February 2023 there was a record overall number of claimants, some 139,000, awaiting an initial decision.

By late 2023 there had been a very substantial increase in productivity in dealing with asylum claims which, as the Chief Inspector noted, required the Home Office to develop a strategy to address the end to end impact of issues with the service of decisions and concerns about the “move on” period in order to avoid a homelessness crisis among newly recognised refugees and the creation of significant pressures for local authorities. The Chief Inspector noted the difficulties which had been raised by charities and other organisations in relation to the August practice but not does not refer in terms to the subsequent September Practice.

The increase in the number of claims being processed is matched by an inevitable increase in the number of households owed a prevention duty after being required to leave accommodation provided as asylum support, as set out in the figures published by the Department for Levelling Up Housing and Communities in respect of the period from July to September 2023.

Mr Bernardi also referred to what he described as “anecdotal evidence”. This included information from the Helen Bamber Foundation in relation to 9 refugees of whom only one had been given 28 days notice from the date of his BRP being issued. This would clearly be a departure from the September practice. In addition, he had been given information about six cases dealt with by Migrants Organise but the details given are confined to the date of eviction and the dates given on the NTQ. There was a further case shared with him by an organisation for refugee women in which the refugee had not received notification of the grant of asylum nor an ASDL.

Mr Bernardi provided a further witness statement dated the 8 March 2024 in which he gave details of an additional 5 clients he and his team had taken on since 1 February each of whom were given less than 28 days notice of their eviction from asylum support accommodation over a period between November 2023 and February 2024. The Second Defendant objected to the Claimant’s application to rely on this evidence on the basis that it was transforming the proceedings into a rolling review in circumstances where a new case was introduced by means of the Reply and the Second Defendant was not given any opportunity to respond (as a consequence of the terms of Choudhury J.’s order of 5 February 2024).

The examples given by Mr Bernardi appear to demonstrate that there are some cases in which there has been a breakdown of the system for providing refuges with the required documents and notice, in the context of very large numbers of asylum claims being processed, rather than an application of the September Practice which has caused prejudice. The details given, although brief, indicate that these cases are likely to be fact sensitive.

The Second Defendant submitted in relation to Mr Bernardi’s evidence:

This seems to me to be to be a fair assessment. The Chief Inspector’s report identifies a spike in homeless refugees between August and October 2023 but attributes this to the substantial increase in the number of asylum decisions. That is hardly surprising; there would inevitably be a larger cohort who would be assessed as not meeting the priority need criteria if the overall numbers increased and more refugees were presenting themselves as homeless to local authorities.

As far as the Claimant is concerned, not only is the claim against the Second Defendant and the application for interim relief not urgent, it is also academic. He was not subject to the August practice which appeared to be the object of the challenge which was initially brought. He was caused little if any prejudice as a result of being subjected to the September practice and the fact that he became homeless was as a consequence of the decision taken by the First Defendant that he was not in priority need. The Claimant’s reply acknowledges that “there is some force” in the latter point.

The starting point for considering whether a court or tribunal should permit a party to pursue an academic point in a public law case is the statement of Lord Slynn of Hadley in R v. Secretary of State for the Home Department, ex parte Salem [1999] 1 AC 450: [457A]:

That approach was applied subsequently by Mr Justice Silber J in the case of R (Zoolife International Ltd) v. Secretary of State for Environment, Food and Rural Affairs [2007] EWHC 2995 (Admin), at [36]:

Silber J also observed at [13]:

The Claimant’s proposed approach, as explained in his skeleton argument and in submissions, would require the court to determine in the first instance whether the August practice was unlawful and then to consider whether the September practice cured the “ongoing illegality”. The Claimant was not subject to the August practice which was in place for a short period of time. As far as I can tell none of the cases or anecdotal evidence put forward by Mr Bernardi arise from the August practice. Perhaps for that reason the Claimant suggested that his case should be linked with, and heard together, with the case of MX. As I understand that case, from the submissions made before me, proceedings were initiated after MX had secured alternative accommodation under the August practice. He had not experienced any period of homelessness and was already in local authority accommodation, so that there was no urgent need for the court’s intervention. Despite the withdrawal of the August practice, MX chose not to withdraw the proceedings. Instead, a Reply was served, which the Defendant argued raised a new case, challenging the September practice, which had not been applied to MX.

The challenge to the August practice was principally articulated on the basis that it was introduced without consultation or sufficient thought being given to its impact on a group who were likely to be vulnerable. Thus it involved a breach of the Tameside duty (to carry out a sufficient inquiry prior to making a decision) and the Public Sector Equality Duty (“the PSED” - also requiring an assessment of the risk of an adverse impact – see Bracking v SSWP [2013] EWCA Civ 1345).

The September practice involved running the 28 day period from the date of the BRP as had been urged upon the Second Defendant by the wide group of charities and other informed bodies who were signatories to the 5 September letter. This in fact accorded with the way in which it had been understood the practice operated prior to August, even if that was technically incorrect. The PSED is a continuing duty, and the Second Defendant changed the practice in September in a way which improved the notice period and reverted to a timetable that would ensure that the crucial BRP had been issued before the notice period began to run. The NTQ provision had not been altered by any of the various practices. For the reasons given above the Claimant suffered little or no prejudice from the application of the September practice to his case; the facts hardly suggest that he has a sufficient interest to bring proceedings let alone to challenge the lawfulness of an earlier short term practice that was never applied to him. The reason why he became street homeless is because he was assessed not to be in priority need. The claim against the First Defendant was abortive for the reasons discussed. It would plainly be ideal if accommodation could be found for everyone in his position; his predicament in having to sleep rough cannot but engage sympathy. However, there are practical limitations on what can be done and difficult decisions that have to be made about the allocation of scarce resources.

The question I have to consider is whether the court’s resources should now be used to consider a claim against the Second Defendant, which is academic as far as the Claimant is concerned. The wider evidence which the Claimant sought to rely on may indicate, as the Chief Inspector’s report suggests, that thought requires to be given to the effect on Local Authorities of an increase in the processing of asylum cases, but it does not establish that the September practice is the cause of the difficulties. Most, if not all, of the individual cases are potentially examples of things that have gone wrong with the system for giving notice to refugees, in the context of very large numbers of decisions being reached at greater speed, not of the effect of the September practice had it been applied to them correctly. The failures identified are not the same as between the cases and do not appear to have a systemic cause which is connected to the September practice. If there is a case which shows that an individual has been prejudiced as a result of the notice period being run from the BRP then such a case may be an appropriate one in which to challenge the practice but I am not persuaded that it is this case. In the circumstances I do not conclude that there is an arguable ground for judicial review which has a realistic prospect of success or that the Claimant has a sufficient interest in the matter to which the application relates; accordingly I refuse permission.

The application for interim relief therefore falls away but clearly there is no need for any interim or urgent relief for the Claimant. I would have concluded that there is no serious issue to be tried in relation to the September practice as far as the Claimant is concerned or more widely given the conclusions I have reached as to the other evidence available. The difference between the September practice and the effect of the relief proposed, which required the Second Defendant to give 28 days’ notice, would in most cases be marginal even where it made a difference. I would not have concluded that the balance of convenience favoured the granting of interim relief.

I leave the existing orders in the case undisturbed save for setting aside the order made by Lang J. If the Claimant contends that there is a subsisting Article 3 claim then I propose to order that it be stayed pending the outcome of the County Court proceedings, however the parties may make further written submissions limited to that point in the light of this judgment.