After reading the the Nearly Legal post this week on R (Faizi) v Brent LBC I thought I would write something about how I have found Section 204A of the Housing Act 1996 to be of no use to homeless persons trying to avoid the loss of their temporary accommodation while they appealed against a decision that they were not entitled to be housed.
The interesting thing about the Faizi case as spotted by Nearly Legal was that Hadon-Cave J refused the application for Judicial Review based on consideration of the issues which Ms Fazi had raised instead of dismissing it for the more obvious reason that she had issued proceedings in the wrong Court. This would be because she was not entitled to apply for Judicial Review as she had a right of appeal to the County Court under Section 204A of the Housing Act 1996.
After looking up the old case law I remembered that the two leading cases on Section 204A appeals were infact Judicial Reviews themselves. Those are R v Camden LBC Ex p Mohammed [1997] 30 HLR 315 and R v Brighton and Hove Council Ex p Nacion (1999) 31 HLR 1095. This was because they concerned the exercise of the council's discretion to accommodate the applicant pending the outcome of a Section 202 Review where the challenge does have to be made by way of Judicial Review proceedings unlike the exercise of what is effectively the same discretion to house pending appeal which has to be challenged in the County Court under Section 204 of the Housing Act 1996.
Things started off alright back in 1997 with Mohammed where it was held that in considering whether to exercise its discretion to house the council should consider three questions:-
(1) the merits of the substantive case,
(2) whether there was new material on review that could effect the decision,
(3) the personal circumstances of the applicant.
After considering the facts of the the case the Court held that the decision not to accommodate pending review was unlawful. That seems fair enough.
Things took a severe turn for the worse two years later in Nacion where the Court of Appeal held that as long as the council had addressed the three questions set above as identified in Mohammed any challenge of the refusal to accommodate pending review would be almost certain to fail.
Tuckey LJ said: “Where a council, as in this case, has obviously considered the material factors... identified in [R v Camden LBC Ex p Mohammed], it is an entirely futile exercise to seek to say that in some way that discretion was wrongly exercised by coming to the High Court for judicial review and saying, as this applicant does, ‘We have an arguable case on the appeal to the County Court’. Applications for judicial review on this basis should be strongly discouraged. It is only in a very exceptional case that there will really be any reasonable prospect of interesting the court by way of judicial review to interfere with the exercise of the very broad discretion which the council have ...”
In the same case, Lord Woolf MR said: “If an authority refuses even to consider exercising its discretion… then I can understand that judicial review may be an appropriate remedy. Apart from that situation, I have difficulty in envisaging cases where application for judicial review will be appropriate.”
My reading of this is that where the council can show that they have ticked the box marked "thought about it" and have not made some gross error in doing so the Courts will not interfere with their decision. This is because the court will only consider whether the three questions have been answered and not how the council answered them.
In 2003 the Court of Appeal held in Francis v Kensington & Chelsea LBC [2003] 2 All ER 1052 that the principles set out in Nacion in relation to accommodation pending review should be applied by the County Court when considering an appeal under Section 204A and that was that. Since then I have not heard of Section 204A being of any use to anybody. Presumably some people have won appeals which I have not heard about but you would have to be a very brave barrister to advise that a case had a good prospect of success of passing Tuckley LJ's almost impossible test. Further details of the obstacles that these cases put in the way of homeless persons can be found on this article on the Hardwicke Chambers web site from 2003. I am not aware of any cases since then which have improved the situation.
The ruling in Nacion and Tuckey LJ's and Woolf MR's comments reflect extremely badly on the judiciary. Where Parliament has created rights of review and appeal for homeless persons against decisions to deny them assistance which they are entitled to it should not be an "entirely futile" exercise and persons should not be "strongly discouraged" from asking a Judge to require a council to give effect to those rights. It is a great injustice if applicants have to become street homeless whilst waiting for a review or appeal decision to overturn an unlawful refusal to house them.
The good news is that where homeless applicants face the loss of their temporary accommodation pending review or appeal they may still get some protection from street homelessness from the Courts if they have children or if they are vulnerable on medical grounds and the council refuses them temporary accommodation. The secondary duties/powers which councils have to assist such persons under the Children Act 1989 and more gently the Children Act 2004 and Care Act 2014 are open to enforcement through Judicial Review and do not face the same restrictions as apply to Section 204A.