Berhane v Lambeth

The first order was made on 3 November 2006 and it was in these terms, so far as material:

“2.

The Appeal is adjourned to 24 November 2006 for the Respondents to decide if it will (a) undertake to the Court to abide by its decision on the issue of local connection and (b) withdraw from the statutory arbitration scheme.

3.

Such decision by the Respondent is to be communicated to the Court as (a) post and or (b) fax and or (c) e mail. Any communication is to be marked for the attention of His Honour Judge Birtles.

4.

If the Respondent agrees to withdraw from the Statutory Arbitration Scheme in accordance with the paragraphs 2 and 3 of this order then the appeal is to be relisted as soon as possible, time estimate 1 day.

5.

If the Respondent does not agree to withdraw from the Statutory Arbitration Scheme then the appeal is adjourned until days after notification by the Respondent to the Court of the decision of the Arbitrator appointed under the Arbitration Scheme.

6.

Costs reserved.”

It will be observed that there are a number of typing errors in that order. None of them seem to me to be material, except for that contained in paragraph 5, where it is said that “the appeal is adjourned until days after notification.” It would thus appear that the omission of any specific period had the effect of adjourning the section 204 appeal indefinitely. Even if a period of days had been inserted into paragraph 5 of the order, the effect would have been to make the postponement entirely dependent upon the operation of the statutory arbitration scheme.

The second order was made on 28 November 2006, which had the effect of perpetuating those problems, because it was simply ordered, on that occasion, that the hearing on 12 January 2007 be vacated and the claim be adjourned generally.

Permission to appeal was granted by Royce J on 12 June 2007. This was because the decisions to adjourn had the effect of depriving the appellant of access to justice in the sense of having her appeal under section 204 actually determined.

It is necessary of course for me to consider, in a little detail, the statutory framework within which those orders were made. Before I do so, however, I should turn to the factual background and the history of prolonged delay in the course of this appellant seeking her remedies.

She is an Eritrean national, born on 15 May 1983. Her arrival in the United Kingdom was on 18 January 2005, at which stage she was seeking asylum. Some months later, on 11 June 2005, she gave birth to a daughter. Meanwhile, on 27 May 2005 the appellant had been recognised as a refugee and she was granted indefinite leave to remain in the United Kingdom.

She had been accommodated by NASS in accordance with section 98 of the Immigration and Asylum Act 1999, at an address in Thornton Heath, Surrey. Once the appellant was granted the status of a refugee, that accommodation was terminated on 14 July 2005. The appellant presented as homeless to the respondent to this appeal, namely the London Borough of Lambeth, on 12 July 2005.

Lambeth, at first, failed to provide her with temporary accommodation, in accordance with the provisions of section 188 of the Housing Act 1996, and she was therefore accommodated by the Migrant Helpline at an address in Croydon. In due course, on 31 August 2005, she was provided with temporary accommodation by Lambeth. She was moved on 21 September 2005 to another address, and again on 15 May 2006, to an address in Upper Norwood, London SE19, and, I am told, she remains there to this time.

By letter, on 10 August 2005, Lambeth referred the homeless application to the Croydon Housing Authority, having concluded that the appellant was eligible for assistance, in priority need and also unintentionally homeless. Two days later, Croydon refused to accept the referral and subsequently confirmed its refusal on various dates thereafter, namely on 26 August 2005, 7 September 2005 and 7 October 2005. In the light of that conflict between the two housing authorities, the matter has now dragged on until the last few days, that is to say, for almost two years.

There was correspondence between the two housing authorities, and Lambeth proposed, in a letter of 18 November 2005, that an arbitrator should be appointed to determine the dispute as to whether the conditions for referral by Lambeth to Croydon had been met. It was not until 10 March 2006 that Lambeth notified the appellant, purportedly in accordance with section 184 of the Housing Act 1996, of its decision to refer her application to Croydon. But it is to be noted that under section 184(4) of the Act it is required that the applicant should be notified at the same time as the other authority was notified. That was apparently not complied with.

The Lambeth letter of 10 March 2006 explained its case as being that the appellant did not have a local connection with the Lambeth Housing District. It was asserted that she had a local connection with Croydon, because she had resided in the Croydon area for some time prior to her homelessness application; that is to say, when she was being accommodated by the Sunrise Project.

It was also alleged by Lambeth that the appellant had been dispersed under section 98 of the 1999 Act and that under section 11 of the Asylum and Immigration Act 2004 she was to be regarded as having a local connection with Croydon via residence.

Shortly after receiving notification from Lambeth, the appellant’s solicitors, in accordance with section 202(1)(c) of the Housing Act, requested a review of the decision. That was on 20 March 2006. Some three months later, on 16 June 2006, Lambeth confirmed its previous decision to notify Croydon.

The next step for the appellant was to take advantage of the provisions of section 204 of the Act, to which I shall come shortly, and therefore on 10 July 2006 there was an appellant’s notice, challenging the review decision, filed in the Lambeth County Court. That was first listed for hearing on 29 September 2006 when it came before HHJ Welchman, but that was adjourned for lack of court time. Another hearing on 12 October 2006 was vacated because there was no circuit judge available. So it was that the matter came before HHJ Birtles on 3 November 2006 at the Mayor’s and City of London County Court.

The judge then adjourned the hearing and made the order, from which I have already quoted. In the light of the terms of that order, Lambeth, in a letter of 17 November 2006, confirmed that it would not be withdrawing from the arbitration proceedings. The relevant part of the letter was in these terms:

“... pursuant to the Order of the court made on November 3, 2006, as directed, we now notify the court and confirm that the Council has decided not to withdraw from the arbitration of the rejection by London Borough of Croydon of the local connection referral by the Council.

Given the Council’s decision not to withdraw from the arbitration, the Council understands that the effect of His Honour Judge Birtles order is that Ms Berhane’s [the appellant’s] section 204 appeal stands adjourned until after the conclusion of the arbitration. Accordingly, I would be grateful for confirmation that the appeal hearing fixed for 12 January 2007 will be vacated.”

As I have already recorded, that was the effect of the order of HHJ Birtles made on 28 November 2006.

In the light of those two orders, the appellant filed an appellant’s notice challenging the two orders, and that was done on 8 December 2006. That was the initiation of the process, which finally comes before me some seven months later.

Not surprisingly, being anxious to establish what progress, if any, was being made, the appellant’s solicitors wrote to both the housing authorities on 1 February 2007. Lambeth responded by letter of 2 February 2007 in these terms:

“We note your request but as far as we are concerned the arbitration process does not concern your client. It is between the two local authorities - Lambeth and Croydon Council’s. We are not bound to disclose papers relating to the arbitration. We have disclosed papers relating to the referral under s198 HA 1996 to your client in order for her to conduct her appeal. She has every thing she needs. Once the arbitration process is complete she will no doubt be informed of the outcome.”

That letter might be thought to display a certain arrogance towards the appellant and her advisers. Since her appeal, which had been adjourned, depended on the outcome of the arbitration process, she was surely entitled to be kept informed.

It would appear from that letter that there is some force in the submission of Ms Adedeji, who has ably conducted the appeal on behalf of the appellant, to the effect that Lambeth was really using the opportunity of the adjournment to bypass the section 204 process and to take a leisurely approach to resolving the claimant’s rights.

Croydon responded to the request for information in a letter of 2 February 2007, to this effect:

“I can confirm that there was some dispute regarding a s198 referral in relation to Ms Berhane [the appellant] with London Borough of Lambeth. There is correspondence on file to confirm this.

The last contact we had from London Borough of Lambeth was that they would be writing to the Arbitration Panel of the Local Government Association to appoint a referee from their panel as we could not agree on an arbitrator. This correspondence was dated 22^nd March 2006, I attach a copy of that letter for your information. We have not heard anything since and assumed that Lambeth had decided not to proceed.”

That again would appear to suggest that the adjournments and the consequent delay were being inappropriately exploited by Lambeth.

I should add that Lambeth have not attended today to make submissions in the course of this appeal, for reasons which will emerge in due course, but they were made aware of the fact that the appellant’s advisers wished to proceed, and the only comment made by Lambeth in that connection was to the effect that if she wished, she need not pursue her appeal. It was, indeed, confirmed by Ms Adedeji that the appellant did wish to proceed.

A few days later, on 5 February 2007, Croydon notified the appellant’s advisers that they had received another letter from Lambeth, which gave this information:

“You will recall that we have been corresponding with you in relation to this matter and you have refused to agree on the named arbitrator.

We have contacted the Local Government Association and they have given us the following names ...

You are wrong in your approach and analysis and Ms Berhane’s [the appellant’s] s204 appeal was adjourned in November 2006 to enable our client to pursue the arbitration process. We reiterate that your Council’s conclusion [i.e. that of Croydon] that accommodation provided under section 98 is not accommodation of choice within the meaning of section 199 of the Immigration and Asylum Act 1999 is plainly wrong.

In the light of this, we now expect to receive your Council’s agreement within the next 14 days that it agrees to the appointment of an arbitrator [from] a panel of referees appointed by the Local Government Association. In the absence of agreement from you our client will be compelled to consider the legal options available to them without any further notice to you.”

Against that unhappy history, I should now turn to the legal framework against which these matters have been progressed or delayed, according to one’s point of view. First of all, there is section 184 of the Housing Act 1996, which provides, so far as material, as follows:

“(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)

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

(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.

(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) ...”

It is also necessary to have in mind some of the provisions of section 193 of the same statute, which is entitled, “Duty to persons with priority need who are not homeless intentionally.” That is relevant to the appellant’s case and the provisions which I need to cite are subsections (1) and (2):

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

I turn next to the provisions of section 198

“(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 to another authority are met if—

(a)

neither the applicant nor any person who might reasonably be expected to reside with him has a local connection with the 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 arrangements as the Secretary of State may direct by order.”

Section 199 throws light on the notion of “local connection”. It is in these terms:

“(1)

A person has a local connection with the district of a local housing authority if he has a connection with it—

(a)

because he is, or in the past was, normally resident there, and that residence is or was of his own choice,

(b)

because he is employed there,

(c)

because of family associations, or

(d)

because of special circumstances.

(2)

A person is not employed in a district if he is serving in the regular armed forces of the Crown.

(3)

Residence in a district is not of a person’s own choice if—

(a)

he becomes resident there because he, or a person who might reasonably be expected to reside with him, is serving in the regular armed forces of the Crown, or

(b)

he, or a person who might reasonably be expected to reside with him, becomes resident there because he is detained under the authority of an Act of Parliament.

(4)

In subsections (2) and (3) ‘regular armed forces of the Crown’ means the Royal Navy, the regular forces as defined by section 225 of the Army Act 1955, the regular air force as defined by section 223 of the Air Force Act 1955.

(5)

The Secretary of State may by order specify other circumstances in which—

(a)

a person is not to be treated as employed in a district, or

(b)

residence in a district is not to be treated as of a person’s own choice.

(6)

A person has a local connection with the district of a local housing authority if he was (at any time) provided with accommodation in that district under section 95 of the Immigration and Asylum Act 1999 (Support for Asylum Seekers).

(7)

But subsection (6) does not apply -

(a)

to the provision of accommodation for a person in the district of a local housing authority if he was subsequently provided with accommodation in the district of another local housing authority under section 95 of that Act, or

(b)

to the provision of accommodation in an accommodation centre by virtue of section 22 of the Nationality Immigration and Asylum Act 2002 (Chapter 41)(Use of accommodation centres for section 95 support).”

I next turn to section 200, which is concerned with “Duties to applicant whose case is considered for referral or referred”. Its terms are as follows:

“(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 of his case are met.

(2)

When it has been decided whether the conditions for referral are met, the notifying authority shall notify the applicant of the decision and inform him of the reasons for it.

The notice 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.

(3)

If it is decided that the conditions for referral are not met, the notifying authority are subject to the duty under section 193 (the main housing duty).

(4)

If it is decided that those conditions are met, the notified authority are subject to the duty under section 193 (the main housing duty).

(5)

The duty under subsection (1) ... ceases as provided in that subsection even if the applicant requests a review of the authority’s decision (see section 202).

The authority may [secure] that accommodation is available for the applicant’s occupation pending the decision on a review.

(6)

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

I should add that the word “[secure]” in subsection (5) was substituted by the Homelessness Act 2002, section 18(1), and Schedule 1, paragraphs 2 and 15(b).

I turn next to the provisions of section 202 of the 1996 Act, “Right to request review of decision”:

“(1)

An applicant has the right to request a review of ...

... (c) any decision of a local housing authority to notify another authority under section 198(1) (referral of cases),

(d)

any decision under section 198(5) whether the conditions are met for the referral of his case,

(e)

any decision under section 200(3) or (4) (decision as to duty owed to applicant whose case is considered for referral or referred) ...”

I turn next to section 204, “Right of appeal to county court on point of law”:

“(1)

If an applicant who has requested a review under section 202—

(a)

is dissatisfied with the decision on the review, or

(b)

is not notified of the decision on the review within the time prescribed under section 203,

he may appeal to the county court on any point of law arising from the decision or, as the case may be, the original decision.

(2)

An appeal must be brought within 21 days of his being notified of the decision or, as the case may be, of the date on which he should have been notified of a decision on review.

(3)

On appeal the court may make such order confirming, quashing or varying the decision as it thinks fit.”

It will thus be apparent that Parliament has provided a regime whereby an applicant has what is described in section 204 as a right of appeal to the County Court on a point of law. Inherent in that, of course, is the policy that such a person shall have access to justice for pursuing such a right and his or her remedies in the light of the court’s determination.

There are provided, in addition, guidelines for local authorities, which are set out in the Homelessness Code of Guidance for Local Authorities dating from July 2006, and in particular at annex 18. These provisions correspond to the Secretary of State’s powers contained in section 198(5) of the Housing Act 1996. They provide, in particular, that a notified housing authority, contending that the conditions for referral are not made out, is required to give full written reasons within a specified period of 10 days of receiving the referral. Where there is no agreement as to whether the conditions for referral are met, a referee should be appointed within 21 days of notification of the referral to the notified authority. Where the two housing authorities are unable to agree on the identity of a referee, one is appointed by the Local Government Association, either through a joint request made by the disputing authorities, or through a request made by the notifying authority alone if a referee has not been appointed within six weeks of the notified authority receiving the referral. See, in particular, paragraphs 10.6, 10.7 and 10.8 of annex 18.

Once a referee is appointed, the disputing authorities are invited to submit representations within 14 working days. Each housing authority then has the opportunity to comment on the other’s representations within a further period of 10 working days. The referee can invite further representations if necessary. The disputing authorities should make copies of their representations available to the homeless applicant and the referee may invite written or oral representations also from him or her. See in particular paragraphs 13.2, 13.3 and 13.4 of annex 18.

It is also provided (see paragraph 13.5) that the decision of a referee should be reached as quickly as possible and normally within one month from receipt of both the housing authorities’ written representations. A referee’s determination should be in writing and is regarded as binding on the disputing authorities, subject to an applicant’s right to ask for a review of that decision in accordance with section 202 of the 1996 Act. There is also the possibility of a reference to the County Court on a point of law in accordance with section 204. See the paragraphs 14.2 and 15.1 of annex 18.

Again it is provided, by paragraph 17.2, that the notifying authority should inform the applicant of the decision “promptly”. If the applicant requests a review of the referee’s decision, then the disputing authorities should, within five days, appoint a different referee, who is known as “the reviewer”. If a reviewer is not appointed within this period, the notifying authority is obliged, within five days, to ask the Local Government Association to appoint a reviewer, and the Association must do so within seven days of the request. See in particular paragraph 20.2 of annex 18.

Again, the applicant should be notified of the decision on a review within 12 weeks from the date on which the request for the review was made, or such longer period as the applicant may agree in writing. See paragraph 21.5 of annex 18.

It thus emerges, even more clearly than from the primary statutory provisions themselves, that the legislature intended that these matters should be disposed of within a particular specified time frame and “as quickly as possible” and “promptly”. It is also obvious from the terms of that guidance that it is, as one would expect, contemplated by the legislature that the relevant applicant should be kept informed of what is going on, to a reasonable extent.

It is thus clear, in my judgement, as Ms Adedeji submits, that the procedure for reference by disputing local authorities should not become a black hole into which an applicant simply disappears for an unlimited period of time. It is also quite plain that those provisions, convenient though they may often be, are not intended in any way to detract from the rights of an applicant to go to the court, in particular, in accordance with the provisions of section 204 of the 1996 Act.

The learned judge in this case, in the orders under appeal, clearly had in mind, or so it would appear, two objectives. The first was to avoid delay and the duplication of cost. The second was to avoid the possibility of apparently conflicting decisions being reached through the court process on the one hand and the statutory reference procedure for disputing authorities on the other. If I may respectfully say so, one can well understand those objectives. The underlying assumption of the learned judge, however, was presumably that the local authorities would proceed, with all due dispatch, in accordance with the statutory provisions in question and the guidance to which I have referred above.

In this case, the learned judge’s intentions were, as has already emerged in the course of this judgement, effectively stultified by inactivity on the part of the relevant housing authority. In consequence, the rights of the appellant were also stultified and she has been left in a state of uncertainty and ignorance for a period of many months.

I turn therefore to the substantive submissions of Ms Adedeji on this appeal. She submits first that the appellant, having exercised her statutory right under section 202(1)(c) of the Housing Act, cited above, to request a review of Lambeth’s decision to notify Croydon, has an unfettered right of appeal to the County Court on a point of law arising from the review decision.

It is submitted, also, that the exercise of this right cannot be rendered, at any rate lawfully rendered, dependent on notification of a referee’s decision to the court. She argues that it would be contrary to the statutory provisions, which clearly provide for a right of appeal prior to the resolution of a dispute between two housing authorities.

She argues persuasively that had it been intended to give an applicant the right of appeal only after resolution of a dispute of that kind, the provisions of section 202(1)(c) would have been unnecessary, since section 202(1)(d) would have sufficed.

The decision of the learned judge in this case to adjourn the appeal pending notification of a referee’s decision, in accordance with the terms of the order itself, denies the appellant effective access to the court, where there is, or is likely to be, undue delay on the part of the relevant respondent. As I have already indicated, the learned judge was not to know of that delay; that has only emerged subsequently. He was entitled to assume that matters would be progressed with all due expedition.

But it would appear (and I cannot come to any firm conclusion about this in the absence of Lambeth this morning) that the adjournment may have been used as a delaying tactic. Certainly the terms of the letter, which I quoted above, dated 1 February, give the firm impression that Lambeth was intending to give the appellant and her advisers the “brush-off”.

That is plainly unsatisfactory and an approach of that kind undermines, if not ultimately destroys, the appellant’s right of access to the court. It goes without saying that nowadays courts are particularly concerned to protect rights of access, having regard to Article 6 of the European Convention on Human Rights and Fundamental Freedoms. But no such general consideration is necessary in this case, because section 204 itself expressly provides for a right of access to persons in the position of this appellant.

Ms Adedeji goes on to submit that since the two authorities in question, Lambeth and Croydon, were unable to agree the identity of a referee, Lambeth, as the notifying authority, should have asked the LGA to appoint one. That request should have been made within six weeks of the notified authority receiving the referral, in accordance with the annex 18 guidance. She is, in my judgment, clearly correct in that submission.

The undesirable consequence has been that Lambeth had to make a request for a referee to be appointed and that position continued to prevail until a few days ago, and that is getting on for some 18 months after Lambeth’s notification to Croydon. The outcome, therefore, has plainly flouted the intentions of Parliament.

The difficulties of the appellant were highlighted by Ms Adedeji when she pointed out that the appellant would not be a party to the statutory disputes procedure applying between the two authorities. She, therefore, would not be in a position to ensure, in her own interests, that prompt arrangements were made. The only step, open to her was to pursue her independent right of appeal against the review decision to refer her application to Croydon.

She argues that, even if that right were not independent of the arbitration process, delay on the part of the notifying authority in making the requisite arrangements should operate as a reason for hearing the appellant’s appeal. That was certainly one of the matters that appealed to Royce J when he gave permission.

Ms Adedeji argues that it is unsatisfactory for a County Court to adjourn an appeal pending a referee’s decision, especially where the court is of the view that the appellant has strong arguments that could lead the court, not to just quash the respondent’s review decision, but also to substitute its own decision for that of the respondent.

Ms Adedeji addressed the possibility (as did Royce J when giving permission to appeal) that there could be some step taken by way of judicial review, but that would involve further delay and also further public expense.

On 20 July 2007, Lambeth conceded a duty to house the appellant, and it may very well be that Lambeth concluded that in the light of that decision this appeal would be abandoned. Again, I can make no criticism of Lambeth in their absence, but there is a danger that, if this situation were allowed to be replicated, a local authority may abuse the position by asking for an adjournment from the court, delaying the reference procedure, and when an applicant applies to the court for relief under section 204, if not simply delaying matters, resisting any appeal that may be brought, only to abandon that resistance at the last minute.

What is unfortunate about that is that the impression is given to the appellant and to the public generally that local authorities are exploiting loopholes in the statutory framework to avoid compliance with their statutory obligations and their obligations under the guidance (to which I have referred) in annex 18. That is an unfortunate impression to give, and in case there has been any misunderstanding in this case, I hope that the guidance which may be derived from this judgement in the light of Ms Adedeji’s submissions will assist in the future.

The appellant has indicated that she did not wish to abandon this appeal and it is of course unusual for the court to entertain an appeal which is (or might be described as) academic in character, and is serving no useful purpose. But for the reasons I have just given, I do not believe that this appeal has, in the event, proved to be purely academic, and I hope that it will have served some purpose in the way that I have just suggested.

The appellant is awarded her costs up to 20 July 2007, to be assessed if not agreed.