Tag Archives: Homelessness

Thoughts on the case of JA & Ors, R (On the Application Of) v The London Borough of Bexley (2019)

An examination of a Judicial Review involving the refusal of support under Children Act 1989 for a family claiming destitution.

The aproximate text of the podcast is set out below. A note of the case and the link to the judgment which is referred to is here. 

This case involved a successful Judicial Review of a decision by the London Bexley to refuse housing and subsistence payments to a mother and 3 children under the Children Act 1989. This post can also be listened to as a podcast or watched on Youtube. The references to paragraph numbers in the judgement below are to the paragraphs on the Baili report. 

The factual background was  that mother had been working and supporting her family until 2015 when she had to stop due to her immirgration status as an overstayer. This status meant that she had no recourse to public funds and was not able to claim benefits or obtain housing as a homeless person under Part 7 of the Housing Act 1996. It also meant that she was not allowed  to rent a private property herself even if she had the money with which to do so. She and the children were however entitled to be provided with accommodation and subsistence payments under the Children Act if Bexley was satisfied that they were destitute. 

For just over two years Bexley accepted that the family were destitute and provided them with housing and subsistence payments. However, in September 2017 they carried out a new assessment and decided that the mother had additional income which she had not disclosed and that the family were not destitute. They carried out a fraud investigation and in June 2018 reached a decision that the family were not destitute, the children were not therefore in need and the family were not entitled to housing or support. 

Judicial Review proceedings were  issued and led to a 2 day hearing in January 2019 and a judgment from David Casement QC sitting as a Deputy High Court Judge on 1 February. He found that the council had failed to carry out a proper assessment or investigation and that their decision was Wednesbury unreasonable so that it had to be quashed. The judgement is worth reading as it shows how an unfair and hostile assessment by a council can be challenged through attention to detail. Unfortunately it has been very common for councils to make decisions of this kind and to hope that they can successfully defend Judicial Review proceedings by repeating unfounded accusations against destitute families. 

The political background to the case lies in the creation of the hostile environment for migrants openly and unashamedly encouraged by David Cameron’s government. This built on the hostility of the previous Labour governments which had denied access to mainstream housing and support for migrants through the introduction of the Nationality, Immigration and Asylum Act 2002. Treaty obligations meant that the governments were not able to deny all support to children and leave them sleeping in the street with no food which is why accommodation and financial assistance remained available to destitute children and their families under the Children Act. 

The changes since 2002 meant that hundreds of families with children who might previously have been entitled to mainstream housing and benefits now had to seek support under the Children Act. This in turn meant that Children's Services Departments were inundated by huge numbers of applications. They struggled to deal with this flood in terms of carrying out the necessary assessments let alone providing housing and support for those families whose children were found to be in need. 

Unfortunately staff in many Children's Services Departments responded to the crisis which led to destitute families seeking assistance not by speaking out about the plight of the children but by adopting an increasingly hostile approach towards the children and their parents themselves. Lewisham council, for instance which for a long time was one of the worst when it came to the mistreatment of destitute children openly adopted a policy which it called “Robust Front Door”. This soon led to applicants being routinely branded as fraudulent and to assessments being carried out with a view to justifying the decision which had been taken to refuse assistance and to keep the front door shut. Applicants would be routinely refused support because their accounts were considered to be “plainly incredible” (an expression used by for Bexley in this case - see paragraph 36) or were accused of not cooperating with the assessment process because they were trying to hide their real comfortable incomes.

The hostile approach taken by councils towards destitute children received encouragement in 2013 with the case of R (MN) v Hackney where the council had decided that they were satisfied that the children of the family were not in need for the purposes of Section 17 of the Children Act because the parents were considered to have refused to cooperate with the assessment by not answering questions. A judicial review of the decision was dismissed. Unfortunately, I understand that the case was settled and the family were housed before the decision could be appealed. The original judgment was therefore left on the books and served as a green light for councils to slam their robust front doors in the faces of applicants. All they had to do was to complete an assessment report which concluded that the applicant parent(s) had failed to cooperate and had been dishonest. If the applicants issued Judicial Review proceedings indignant barristers reciting the allegations of fraud and bad faith on the part of the applicant would attend court. If they were lucky a busy judge might dismiss a Judicial Review challenge having concluded that Parliament had intended that local authorities should assess the facts in this sort of case such that it was not for judges to question the specialist decision making of council staff and that in any event that it seemed that the applicant had not cooperated with the assessment process. Fortunately in this case the Judge adopted an approach of subjecting the council’s decision making to an appropriate level of scrutiny. 

So lets see what actually happened in this case. 

I am not going to go into the legal framework in detail here as that would take too long. I will try and to this another time. For now though please just accept that in order for the family to be entitled to housing and subsistence payments the council had to be satisfied that they were destitute after carrying out a balanced assessment and only having regard to relevant matters.

In their decision they gave twelve reasons for this which are set out at paragraph 24. These can be summarised as being:-

  1. She had failed to provide timely evidence of the destitution claimed
  2. Her bank statements showed that she had regularly spent money on non essential items which she would not have done if she was really destitute. 
  3. Despite claiming to be separated from her ex husband and divorced she maintained a good relationship with him and he was providing support for her family.
  4. She had other sources of income such as family, friends and work. 

The mother’s challenge was based on four arguments which are listed at paragraph 3. These were that 

  1. The council’s decision was based on material errors of fact. 
  2. The council had failed to make sufficient enquiries and its decision is procedurally unfair. 
  3. The council’s decision was based on a failure to take account of relevant and material considerations and based on taking account of irrelevant matters. 
  4. The council’s decision was irrational and on the facts of the case was not one which was open to the council to take. 

A good example of these errors of fact and of taking irrelevant matters into account was that that council had relied on the fact that the mother owned an iPad. They also referred to her owning computers. The mother confirmed that she did have an iPad and a computer (only one) but she stressed that she had bought these before she was destitute when she was working. She said that the council had never asked her when they were bought but had nevertheless asserted that they were bought after she became destitute. She also pointed out that the council had failed to put a number of their concerns such as this one to her so that she might have a chance to answer them. This was the point about procedural unfairness. 

She also pointed out that the council’s assertions to the effect that she was receiving financial support from her ex husband was not based on any real evidence but was mere speculation. 

The council had also suggested that the family could be given accommodation by family and friends without any evidence to suggest this. 

In response to this the council argued that the mother was lying about the income available to her. They agued that they did not have to prove that she was receiving income from any of the sources they mentioned but that they were entitled to conclude that she was not destitute because she was not considered to have been full and frank during the investigation. The council did have to concede (see paragraph 36) that the mother had not even been asked about some of the things such as the purchase of the ipad. 

Sadly this incredibly unfair approach is not unusual. The old argument about the mother’s account being “plainly incredible” was raised. The argument usually goes along the lines that the mother has been in the UK for a long time so it is plainly incredible for her to suggest  that she does not have a support network which can provide her with housing and money. In reality I tend to find that by the time they apply to the councils destitute families have run out of people to help them and apply to the council as a last resort. The council suggested (at paragraph 43) that the council’ decision should be “looked at in the round so as to see the overall picture…”. This seems to be a request not to scrutinise the decision but to look at it in an unfocused or a superficial manner way which might lead to a prejudiced and unsupported conclusion being reached. 

The Judge was not prepared to abandon property scrutiny and observed (at paragraph 44) that something more than mere suspicion or feel is required on the part of the council before drawing inferences with potentially serious consequences for the family. He went on to conclude at paragraph 48 that the council’s decision was flawed for the reasons argued by the mother and that the decision was therefore quashed. 

Conclusion

This case is very encouraging. It shows councils cannot simply accuse people of lying and fraud without proper evidence obtained through a fair and balanced assessment process in the hope that a judge will consider their accusations in the round and not subject them to scrutiny. I hope that judgments like this will lead to an improvement in the quality of assessments by council staff. 

A final word of warning here is not to think that a Claimant in Judicial Review proceedings can run arguments such as those run here about defective decision making and expect a Judge to adopt them straight away. I suspect that a very large amount of work went into this case in terms of analysing the council’s evidence and preparing counter evidence and arguments to show what the actual position was. This worked so well that it almost makes it look easy to achieve such a great outcome. Based on my experience it must have required great effort and skill on behalf of the Clamant’s legal team to scrutinise and respond to  the council’s evidence so that the Judge was obliged to find in their favour. It could easily have gone the other way if the work had not been put in and answers to the accusations were not provided. 

JA & Ors, R (On the Application Of) v The London Borough of Bexley [2019] EWHC 130 (Admin) (01 February 2019)

Summary

The Administrative Court allowed the claimant children's application for judicial review of a decision of the defendant local authority that their carer was not destitute. Given the evidence and materials before the authority at the time of the decision or which reasonably could have been available to the authority if appropriate enquiries had been made, the decision to find that the carer was not destitute and that the claimants were not children in need had been Wednesbury unreasonable. (This is from the Counsel Magazine Website)

Law Reports

Bailii

Articles About The Case

Local Government Lawyer -Claimants win challenge over decision by council that mother was not destitute

AR, R (on the application of) v London Borough of Hammersmith and Fulham [2018] EWHC 3453 (Admin) (19 December 2018)

Summary
This case concerned an unsuccessful Judicial Review of a refusal by a council to provide a single homeless man with no recourse to public funds with accommodation under the the Care Act 2014

Local government – Housing. On the claimant's application for judicial review of the defendant local authority's decision that it did not have power to provide the claimant with accommodation, the Administrative Court dismissed the application on the basis that: (i) the authority's decision not to provide accommodation under the Care Act 2014 was lawful; (ii) the authority would not be able to provide accommodation to the claimant under s 1 of the Localism Act 2011; and (iii) the claimant was excluded from such provision pursuant to Sch 3 to the Nationality Immigration and Asylum Act 2002 on the ground that such support was not necessary for the purpose of avoiding a breach of his rights under the European Convention on Human Rights or his EU rights. - This is copied from from Counsel Magazine Web Site

Law Reports

Bailii

Articles About The Case

It is mentioned on the Capsticks  - Housing case law - January 2019 update

Fedakova v Peterborough City Council (2019)

Summary

This is a County Court case in which an Appellant was granted permission to appeal out of time to the County Court under Section 204 of the Housing Act 1996

Law Reports

Apart from being mentioned in Legal Action Magazine July/August 2019 this only appears to be reported on the Case Law Digest Website

Articles About The Case

None that I am aware of.

Adesotu v Lewisham London Borough Council (2019) EWCA Civ 1405

Summary

In general terms, it is unlawful for a person who is exercising a public function to discriminate against another person by reason of his disability (Pt.3, Equality Act 2010). Claims for damages for such discrimination must be brought in the county court (ss.113, 114). That provision does not, however, prevent a person from raising such matters in a “claim for judicial review” (s.113(3); Encyclopedia, para.2-3691). A statutory review on judicial review principles is not a “claim for judicial review”: Hamnett  v Essex CC [2017] EWCA Civ 6; [2017] 1 W.L.R. 1155 (review of a traffic regulation order).Where a person applies to a local housing authority under Part 7, Housing Act 1996 and the authority are satisfied that he is homeless, eligible for assistance, has a priority need and has not become homeless intentionally then, unless the authority refer the application to another housing authority, they must secure that accommodation is available for occupation by the applicant (s.193(2), Housing Act 1996).

An authority cease to be subject to such a duty, inter alia, if, having informed the applicant of the possible consequences of refusal and of his right to request a review of the suitability of the accommodation, he refuses an offer which they are satisfied is suitable for him and they notify him that they regard the duty as discharged (s.193(5)).

The applicant has the right to request a review of any decision of a local housing authority as to what duty, if any, is owed to him under Part 7, including under s.193 (s.202). If the applicant is dissatisfied with the decision on review he may appeal to the county court on a point of law (s.204(1) Encyclopedia, para.1-3645). "Point of law" includes not only matters of legal interpretation but also the full range of issues which would otherwise be the subject of an application to the High Court for judicial review (Begum (Nipa) v. Tower Hamlets LBC [2000] 1 W.L.R. 306; (1999) 32 H.L.R. 445; Runa Begum  v Tower Hamlets LBC [2003] UKHL 5; [2003] H.L.R. 32); it therefore does not confer on the court a fact-finding jurisdiction of its own: Bubb v Wandsworth LBC [2011] EWCA Civ 1285; [2012] H.L.R. 13). In R (CN) v Lewisham LBC; R (ZH) v Newham LBC [2014] UKSC 62; [2015] H.L.R. 6, it was held that, in order to comply with Art.8, ECHR, it was necessary for s.204 to be  interpreted as empowering the county court to assess the proportionality of a proposed eviction from temporary accommodation following an adverse decision by the local authority and to resolve any relevant dispute of fact in the appeal.

In 2017, Ms Adesotu applied to Lewisham LBC for homelessness assistance. The authority concluded that she was owed the s.193(2) duty and offered her temporary accommodation pending a further offer. She did not immediately respond to that offer and, after five days, the authority notified her that they considered the offer to have been refused and that the s.193(2) duty had therefore come to an end. On review, the authority concluded that adequate time had been given for her to make up her mind and upheld the original decision.

Ms Adesotu appealed to the county court contending, inter alia, that she suffered from mental illness and that treating her as having rejected the offer amounted to disability discrimination; she should have been given more time to consider her position. The authority applied to strike out the appeal, arguing, inter alia: that allegations of unlawful discrimination could only be brought by way of a free-standing claim (ss 113, 114, Equality Act 2010) and not as part of a s.204 appeal and that the grounds of appeal raised matters which would need the county court to make findings of fact and hear oral evidence, something which was not permissible in a s.204 appeal (Bubb). The Circuit Judge accepted those submissions and struck the appeal out.

Ms Adesotu appealed to the Court of Appeal. She contended that a s.204 appeal was akin to a judicial review so that these issues could be raised in the appeal (s.113(3), 2010 Act). The Equality and Human Rights Commission intervened, arguing that, in light of R (CN) v Lewisham LBC; R (ZH) v  Newham LBC, it was possible for the county court to hear disputed factual arguments as part of a s.204 appeal.

The appeal was dismissed. Equality Act 2010 claims generally had to be brought by way of free- standing proceedings in the county court, with proper provision for disclosure, evidence and, if necessary, the appointment of an assessor. The exception for judicial review claims did not extend to a statutory review. The decision in R (CN) v Lewisham LBC; R (ZH) v Newham LBC had not referred to Bubb and could not be said to have overruled Bubb, which accordingly remained good law. R (CN)  v Lewisham LBC; R (ZH) v Newham LBC should not be extended to cover other possible factual

(This summary is from Inside Housing Bulletin 19 August 2019

Law Reports

Bailii

Articles About The Case

Nearly Legal 

Capsticks Update - September 2019

Thomas v Lambeth (2017)

Summary

This was an important case even though it was only in the County Court. The Judge allowed an appeal against a vulnerability decision where Lambeth had relied on advice from Now Medical. That advice consisted of stating that the applicant was not vulnerable because they did not suffer from conditions which the applicant had not claimed to suffer from but ignoring the conditions which the applicant did claim to suffer from.

Law Reports

Report Thomas-v-Lambeth

Articles About The Case

Nearly Legal - Vulnerability, Medical Evidence and Now Medical 

Mitre Court Buildings - Homelessness: Council’s Medical Report Relied On ‘straw Man’ Argument

Samuels v Birmingham CC [2019] Supreme Court 

Video

Summary

This appeal considered whether the respondent was entitled to treat the appellant as intentionally homeless on the basis that part of her income from subsistence benefits was available to meet the shortfall between her contractual rent and the housing benefit awarded to her, and whether sufficient reasons were given for this decision.

The Supreme Court unanimously allowed the appeal.

The Court held that the Homelessness (Suitability of Accommodation) Order 1996 requires the authority to take into account all sources of income, including all social security benefits, and there is nothing in it to require or justify the exclusion of non-housing benefits of any kind. It also requires consideration of the applicant’s “reasonable living expenses”, which necessitates an objective assessment. The Court considered that the review officer in Ms Samuel’s case asked whether there was sufficient “flexibility” to enable her to cope with the shortfall between her rent and her housing benefit, but that the question ought to have been what her reasonable living expenses were, to be determined having regard to both her needs and those of the children. The Court determined that it was difficult to see how Ms Samuels’ expenses could be regarded as unreasonable, concluding that it was hard to see on what basis the finding of intentional homelessness could be properly upheld. As such the Court hoped that on reconsideration the council will be able to accept full responsibility under Part VII of the 1996 Act for Ms Samuels and her family.

Law Reports

Supreme Court Web Site

Bailii

Articles About The Case

Nearly Legal - Affordability and intentionality – Adding It Up

Mark Prichard - Rent Shortfalls & Homelessness: David Defeats Council But Not Goliath

 

 

Lambeth v Johnston [2008] EWCA Civ 690

Summary

In carrying out the review of the decision that Mr Johnston was not homeless Lambeth firstly reached a decision to the effect that his drug problem did not give rise to vulnerability which was irrational. The reviewing officer decided that it was not necessary for him to send a minded to letter which was also unlawful.

Law Reports

Bailii

Articles About The Case

Centre for Adult Social Care Report 

Nearly Legal - Deficiency in a decision

Trown Housing Consultancy

 

 

 

Is The Public Sector Equality Duty A Paper Tiger When It Comes To Housing Law?

The simple answer to this question based on recent case law seems to be - Yes when it comes to possession proceedings but No when it comes to Homeless Appeals.

A paper tiger is something which appears to be strong but does not really have any power. The term was famously used by Mao Tse-Tung to describe American foreign policy in 1956. 

The Public Sector Equality Duty is set out at Section 149 of the the Equality Act 2010.  The Gov.UK Website page Equality Act 2010 Guidance states that it means that public bodies have to consider all individuals when carrying out their day-to-day work – in shaping policy, in delivering services and in relation to their own employees. It also requires that public bodies have due regard to the need to:

  • eliminate discrimination
  • advance equality of opportunity
  • foster good relations between different people when carrying out their activities

It would seem therefore that where it can shown that a tenant is suffering from a disability which might give rise to their public sector landlord taking possession against them the tenant might have a defence to the claim in that the landlord can hardly be eliminating discrimination if they are evicting someone in circumstances which amount to discrimination. Recent cases show that this is not however likely to be case.

The first weakness of the duty is that it is not a duty to take any action or desist from other actions. It is only a duty to have regard to the above matters. Thus the duty can be discharged if the landlord can show that they have had due regard to the duty but have gone on to take possession action anyway.

The second weakness is that even if the landlord cannot demonstrate that they had due to regard to the disability of the tenant before issuing possession proceedings or even later they can resolve this problem by having regard later on. This was what was held in the case of Powell v Dacorum (2019)

The third weakness is that a breach of the duty will not give rise to a defence if the landlord can show that even if they'd had due to regard to the disability of the tenant it would not have made any difference and that they would still have taken possession action anyway. This was what was held in the case of Steven Forward v Aldwyck Housing Group LTD (2019)

The approach taken in Powell and Forward was endorsed by the High Court on hearing the appeal in London and Quadrant Housing Trust v Patrick (2019)

Following these three cases there seems little prospect of success for a defence based on the Public Sector Equality Duty provided the landlord can demonstrate by the time of the trial that due regard has been had to the duty.

The ease with which the Public Sector Equality Duty can be discharged by landlords does make it appear to be a paper tiger when it comes to possession proceedings. It should however not be dismissed so quickly in other areas of housing law such as homelessness reviews and appeals. Local authorities were found to have made errors of law in failing to discharge the duty when dealing with disabled applicants in the cases of Lomax v Gosport (2018) and Kannan v Newham (2019).

The lack of bite for the Public Sector Equality Duty in possession should not actually be seen as as major problem for tenants. This is because the the Equality Act 2010 provides tenants with another more powerful weapon in the form of Section 15 of the Act which provides that a person discriminates against another if they treat them unfavourably as a result of something arising in consequence of their disability. This means that where a tenant is able to show that they have a disability which has given rise to possession action they will have a good prospect of being able to persuade a Judge that they have a good defence to the claim because it is based on unlawful discrimination. The landlord will then only be able to evict them if they can show that the discrimination is justified as a proportionate means of achieving a legitimate aim.

I hope to deal with Section 15 and when discrimination will be lawful another day but for now I will point out that the availability of Section 15 as a protection for disabled tenants means that it will generally only be in pretty much hopeless cases that the tenant has to rely on Section 149 and the Public Sector Equality Duty because they are unable to rely on Section 15. In order for the landlord to have persuaded the Court that the discrimination was lawful for the purposes of Section 15 they will have had to carry out an assessment which should meet the requirements of Section 149 and be able to show that they have had due regard. Where a Judge has held that discrimination is permissable for the purposes of Section 15 it is hard to see a Judge going on to find that the landlord has not had due regard to the issues set out in Section 149.

Section 15 does not arise as easily in homelessness cases where the council is not taking action against the applicant but has reached a decision based on consideration of their circumstances. The issues to be considered in Section 149 will therefore be of much greater importance.