Temporary Accommodation Pending The Outcome Of A Section 202 Review

Temporary Accommodation Pending The Outcome Of A Section 202 Review - -  Introduction

The people most likely to be refused temporary accommodation pending review will be single people who have been found not to be vulnerable for the purposes of being in priority need. Whilst the council may issue negative Section 184 Notices to many other applicants they are likely to go on accommodating most of them. This is because families with children will still be owed duties under Children Act 1989 and those with severe medical conditions may be entitled to assistance under the Care Act 2014.

Where a council refuse to provide temporary accommodation pending review the applicant's only way of challenging the refusal and obtaining temporary accommodation is by using Judicial Review proceedings in the Administrative Court. A refusal to accommodate pending the outcome of an appeal to the County Court pursuant to Section 204 of the Housing Act 1996 following a negative decision on review cannot be be challenged by Judicial Review proceedings. Instead it needs to be challenged by a separate appeal pursuant to Section 204AA of the Act against the refusal to provide temporary accommodation pending the outcome of the main appeal

Section 188(3) of the Housing Act 1996 provides that local authorities have a power but not a duty to provide accommodation pending the outcome of a review of a negative decision pursuant to Section 202 of the Housing Act 1996This means that the authority only has to consider whether to exercise that power in favour of the applicant. It can be very difficult for an applicant to challenge a refusal by an authority to accommodation pending the outcome of a review.

Because the Act gives the discretion to accommodate to the council the Administrative Court treats the decision as to whether to provide temporary accommodation pending review is one for the council to make rather than the Court. Judges avery reluctant to interfere with a decision by a council. They will generally only do so when it is overwhelmingly clear that the decision to refuse accommodation is unlawful. The difficulty which this presents can be seen from this article by Hardwicke Chambers from 2003.

In R v Camden LBC ex p Mohammed (1998) 30 HLR, the High Court set out principles governing the exercise of the discretion mentioned above. The local authority must consider: (i) the merits of the appeal, (ii) whether there was any new evidence which may affect the decision under review, (iii) the individual circumstances of the appellant.

In that case Latham J [at 321] held that in exercising their discretion to provide interim accommodation, authorities have to balance the objective of maintaining fairness between homeless persons in circumstances where they have decided that no duty is owed to the applicant, and proper consideration of the possibility that the applicant might be right so that to deprive her of accommodation could result in the denial of an entitlement.

In carrying out this balancing exercise, certain matters will always require consideration:

(a) The merits of the case and the extent to which it can properly be said that the decision was one which was either contrary to the apparent merits or which involved a fine balance of judgment;

(b Whether consideration of new material, information or argument which could have a real effect on the decision under review; and,

(c) The personal circumstances of the applicant and the consequences to him of a decision not to exercise the discretion.

Steps Which Have To be Taken Before A Challenge of A Refusal To Provide Temporary Accommodation Will Be Likely To Have Any Chance of Succeeding

The first step will be to request a review of the negative decision set out in the Section 184 Notice. It is not enough just to ask for a review. Detailed representations will also have to be made as to why the negative decision is unlawful and should be withdrawn. This is important because it will enable the person making the decision as to whether to provide temporary accommodation to consider the merits of the case in accordance with the first of the three Mohammed Criteria.

The second steps is to make a formal request in accordance with the Mohammed criteria for the council to exercise its discretion to provide  temporary accommodation. I would recommend writing one letter setting out the request for a review and the representations in support of that request and a second letter requesting temporary accommodation. The second letter should refer to the first letter as setting out the merits of the review request and then go on to spell out for the purposes of the second of the Mohammed criteria what new information and argument has been put forward since the Section 184 decision was made and lastly to spell out what the impact of the non provision of temporary accommodation  will be on the applicant for the purposes of the third of the criteria

The third step is to send the council a third letter in accordance with the pre action protocol for Judicial Review proceedings setting out details of the case and setting a deadline by which the council are expected to agree to provide temporary accommodation after which Judicial Review proceedings will be issued.

[Sample Letters To Follow]

Arguments Which An Applicant Will Need To Make When Applying For a Judicial Review of a Refusal To Provide Temporary Accommodation Pending Review.

The applicant will need to avoid simply asserting that they have a strong argument  that the original decision in the Section 184 Notice is unlawful. Instead they should focus on attacking the decision not to exercise the discretion to provide temporary accommodation pending review. In doing so they will need to demonstrate that the Mohammed criteria have been so inadequately applied that the decision is unlawful and this is an exceptional case where the court should intervene.  They were therefore need to show that the temporary accommodation decision maker has failed to properly consider the (a) merits of the case and whether the original decision is likely to be overturned on review (b) whether the review request and/or temporary accommodation request have put forward new information or argument which could have a real effect on the outcome of the review (c) the impact on the applicant of the refusal of temporary accommodation such as whether they will become street homeless and what the effect for them would be.

The strength the challenge of the council's decision is important as the balancing exercise required by Mohammed is one which involves consideration of the real possibility that the applicant is right. Thus, in R v Newham LBC, ex p Lumley (1999) 33 HLR 124 it was said that where it appears that the decision under review was unlawful “justice demanded that [the authority] should continue to provide [the applicant] with temporary accommodation”.

It is an established principle of homelessness law that where there is ambiguity over a matter, that ambiguity should be resolved in favour of the applicant (R v Gravesham BC, ex p Winchester (1986) 18 HLR 208, QBD; R. v. North Devon DC Ex p. Lewis [1981] 1 W.L.R. 328, QBD), which principle suggests that where there is ambiguity over the basis for the original decision, that ambiguity has to be assumed in favour of the applicant and therefore in favour of awarding accommodation pending review.

In Lumley Brooke LJ at [54] Brooke LJ restated the Mohammed principle and it’s application:
“…in his use of the expression “the merits of the case” Latham J must be taken to have meant “the merits of the applicant’s case that the council’s original decision was flawed”, and I recommend that in any restatement of his guidelines this amendment should be made. In Mrs Mohammed’s case he was satisfied that the council’s original decision was flawed because it did not comply with its duty, as explained by Simon Brown J in ex p Winchester, to give her an opportunity to explain matters which it was minded to regard as weighing substantially against her.  In Mr Lumley’s case the council’s original decision was even more seriously flawed because it did not pursue proactively any inquiries of its own into his medical condition after being told by Mr Lumley’s GP that he suffered from a severe depressive reaction, and did not give him the opportunity of responding to such adverse medical evidence as it did obtain, in the form of Dr Sohail’s tick on the tick-box form.”

In R (Paul-Coker) v Southwark LBC [2006] EWHC 497 (Admin), Forbes J. held that: an authority are required to apply the Mohammed criteria to the facts of the case and reach a properly or adequately reasoned decision, rather than pay lip service to the criteria; and, the absence of any explanation or reasoning for the authority’s decision not to accommodate the applicant demonstrated that the authority had failed to carry out the balancing exercise required by Mohammed. An applicant will therefor be in a stronger position to challenge a refusal to provide temporary accommodation pending review if he can show that the in applying the Mohammed criteria before refusing to provide temporary accommodation the council have only paid lip service to the criteria and not actually applied them.

Arguments Which Councils Can Be Expected To Make When Defending an Application for  Judicial Review Where They Have Refused To Provide Accommodation Pending Review.

The arguments set out below are based on those set out in a Skeleton Argument produced by a local authority in support of the their defence to a claim for Judicial Review and an interim Order which I had asked for. I am pleased to say that they were unsuccessful and the Court made an Order requiring the council to continue to accommodate the application. The council's position was well argued and it was not clear that they would lose until judgment was given. The arguments I set out should therefore be taken seriously.

1. If a local authority has considered the relevant Mohammed factors then it is not for the Court to intervene. The argument here is that as long as the council has considered the request for temporary accommodation the Court cannot interfere with their decision however harsh it may be.  The logic of this approach is that there is no such thing as administrative law in this area because Parliament intended local authorities as the specialists responsible for housing the homeless to be able to make decisions for themselves. This is of course nonsense and ignores the fact that Parliament always intended that local authorities should discharge their duties in a lawful manner. Nevertheless as with the wider argument that the courts should not intefere with local authority decision making at all based on the Pulhoffer case, it is very common for councils to argue that as long as they can show that they have considered and responded to a request for temporary accommodation pending review, the cannot intervene.

In running this argument council's rely on a number of cases starting with   R v Brighton and Hove Council, ex parte Nacion (1999) 31 HLR 1095 where Tuckey LJ stated:

“As I have made clear in the course of this judgment, the provision of temporary accommodation pending appeal (and the same applies pending review) is entirely in the discretion of the council. Where a council, as in this case, has obviously considered the material factors which Latham J identified in his judgment, 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”

and where Lord Woolf Mr said

“If an authority refuses even to consider exercising its discretion under s.204(4)[1] 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” Lord Wolf MR page 5

A further case relied on is  R (on the application of Gebremarium) v Westminster City Council [2009] EWHC 2254 (Admin) in which the High Court Held that: The upshot of the authorities following Mohammed is that this court will only intervene in the exercise of a local authority's housing discretion under a statutory provision like section 200(5) in an exceptional case.”

The case of Francis v Royal Borough of Kensignton and Chelsea [2003] EWCA Civ 443 is relied on as setting out  a number of important principles:

The judgement echoed previous authority about the limited basis that a court should interfere with the discretionary housing power:

“In the present case, however, the interim relief decision is given to the local authority and not to the court. There is a right of appeal to the county court under s 204A, but that court is to apply the principles applied on an application for judicial review. In other words, the court is not to consider even the merits of interim relief, let alone the ultimate merits of the s 204(4) appeal, but only to judge the process by which the interim relief decision was arrived at” Rix LJ [31].

Councils are likely to argue that every application for an injunction is one of the futile exercises referred to in Nacion which should be dismissed because the council has clearly, on any reading of the decision, considered the relevant criteria and so it is plainly unarguable that the decision can be challenged in this court.

Following Francis councils are likely to argue that  the majority of the majority of the applicant's grounds and argument is directed towards the underlying merits of the original Section 184 decision and hat the Court of Appeal has expressly forbidden such an exercise in Francis. The council will argue that it is not possible to argue the merits of the Section 184 decision in this application or claim as that is a matter for the Reviewing Officer carrying out the Section 202 review County court under s.204 if an appeal under that section is later issued. This puts the applicant in a difficult position. The applicant has to make reference to the original decision because that is relevant to the first of the Mohammed criteria. The more detail they give though the more the council will argue that they are trying to engage in the forbidden exercise of challenging the original decision. The less detail they give though the more the council will argue that there is nothing to suggest that the council has not met the first of the Mohammed criteria.

2.  Councils are likely to argue that even if the Court does have the power to interfere with the decision not to provide temporary accommodation  the test for whether the Court should make an Order requiring the council to accommodate the application is harsher in this type of case than usual.

The test for whether a Court should make an injunction order requiring someone to do something for forbidding them from doing something is determined by what is known as the The American Cyanamid guidelines. These can be summarised as being that the balance of convenience should be maintained by making an Order if it can be shown that there is a serious issue to be tried and no special factors apply which mean that an Order should not be made.

Councils argue that following cases such as De Falo v Crawley BC [1980] 1 QB 460 and Redland Bricks Ltd v Morris[1970] AC 652, the American Cyanamid guidelines should not apply in this context and an Order should only be made if the applicant could show a strong prima facie case. Councils are therefore trying to set the applicant the very difficult task of showing that he has not merely an arguable case for saying that his case is sufficiently exceptional for the Court to interfere with the council's decision but he must show that he has a strong case. Against this background councils will argue that provided the council can show that it has engaged the Mohammed criteria and reached a decision the court has no role at all to play so the applicant can have no grounds at all for asking for an Order let along a strong prima facie case.

3. Councils will argue that they should not be expected to give very much detail in the Mohammed letter as if they were writing a High Court judgment and that what detail they do give should not be subject to detailed scrutiny by the Court. Instead the Court should accept a decision letter as simply giving a rough account of how the council have exercised the discretionary power that Parliament has allocated to them and not to the Court.

Councils are likely to quote  Lewis v Havering LBC [2006] EWCA Civ 1793 in arguing that the decision letter does not have to be detailed. In that case the Court Lord Neuberger held:

“Consideration of "merits of the case" and "the decision" (in the passage I have quoted from headnote in the Mohammed case) does not require a housing authority or their officer to carry out anything like the sort of meticulous exercise that a judge would carry out when considering each ground of appeal. It would, in my opinion, be unhelpful, indeed positively dangerous, for this court to try to set out any general applicable guidance as to the correct approach to be adopted. However, it would often be enough, in a case where the housing authority has been served with a Notice of Appeal (and skeleton argument) in a main appeal, to make reference to having considered the document (or documents) either specifically or in some compendious way.

 In many cases, it would be unnecessary to refer to the grounds in the Notice of Appeal any further. In other cases there may, as it was discussed in argument, be a very important and striking ground which does require a reasonable housing authority or officer to make specific comments or specific explanations as to why it is not seem to be significant or decisive. In other cases there may be ten or more different grounds of appeal, and the contention that, in any but the most utterly exceptional case, it would be appropriate for each of those grounds to be expressly considered and discussed separately, only has to be stated, in my view, to be rejected. Housing authorities and housing officers have to be accorded a measurement of toleration as to the approach they adopt; the sort of consideration which has to be given to the Notice of Appeal (or skeleton argument) must depend on the particular case, but it certainly would rarely if ever involve the sort of detailed, meticulous approach which is feared by Havering in the present case.”

The case relied on in arguing that the decision letter should not be subjected to scrutiny is Holmes-Moorhouse (FC) v The London Borough of Richmond on Thames [2007] EWHC Civ 970 which is a favourite of local authorities and will usually be one of the first cases referred to in any Skeleton Argument prepared for a local authority in a homelessness case.

In that case Lord Neuberger stated: “a Judge should not adopt an unfair or unrealistic approach when considering or interpreting such review decisions. Although they may often be checked by people with legal experience or qualifications before they are sent out, review decisions are prepared by housing officers, who occupy a post of considerable responsibility and who have substantial experience in the housing field, but they are not lawyers. It is not therefore appropriate to subject their decisions to the same sort of analysis as may be applied to a contract drafted by solicitors, to an Act of Parliament, or to a court's judgment.

In putting forward these arguments councils try to set hurdles for the applicant which are impossible to surmount and which will leave a Judge with no choice but to refuse the application for an Order however much he or she disagrees with the decision being challenged. These hurdles are:-

  • The Court should not expect the decision letter to be detailed. (Lewis)
  • The Court should not look closely or critically at what details are set out in the decision letter. (Holmes Moorehouse)
  • Even if the Court does look at the decision in detail and has concerns about it those concerns are not a matter for the court as long as the council have gone through the process of reaching a decision. (Nacion and Francis)
  • The applicant is only entitled to an injunction order at the start of the case if the Court can be satisfied at the start that he has a strong case such that it is likely that at a later hearing of his case the Court will find treat his circumstances as so exceptional that it will look at the decision in detail and overturn it. (De Falco)

These hurdles mean that many applicants will have lost their application before consideration of the actual details of their case has even started. The council will try and keep those details out of consideration and argue that the Court should not even entertain consideration of them. This line of argument can be very attractive to a busy High Court Judge who may have more sympathy for council staff than for homeless persons and who may be irritated at having to deal with the case at short notice and wish to dispose of it quickly. Applicants will therefore need to be ready to counter these arguments.

The Counter Arguments Which An Applicant Can Rely On

In order to overcome the above local authority arguments the applicant will need to show that theirs is an exceptional case. To do this they will have to be able to point to a significant breach of one or more of the Mohammed Criteria.  The above standard arguments raised by councils can be countered as follows:

  • The function of administrative law and hence of the Administrative Court is to ensure that councils discharge their functions lawfully. Council's cannot rely on the cases of Puhlhofer, Nacion and Francis as providing them with immunity from judicial control. They cannot argue that as long as they have produced something which from a distance looks like a decision letter the Court can not look at the detail of the letter.
  • The applicant and the court have to subject both the original Section 184 decision letter and the refusal of accommodation decision letter to an appropriate degree of scrutiny in order to be able to consider the contents and the issues before the Court.
  • If the court does consider the content of the accommodation letter it can be seen that the applicant has a strong prima facie case for arguing not just that the council have acted unlawfully but also that the decision is so flawed that this an exceptional case in which the justice demands that the Court should intervene.

The primary authority for applicants to rely on is R v Newham LBC, ex p Lumley (1999) 33 HLR 124 which was a case in which the Administrative Court granted an order requiring the council to accommodate the applicant pending review. In doing so Brooke LJ said:-

Nothing in this judgment must be read in any way as detracting from the very persuasive authority of what the Court of Appeal said in ex p Nacion. The basic scheme of the homelessness legislation has been on the statute-book for so long now that I would hope that it is only in a very exceptional case that there is a total failure in performing the duty resting on a council in an important aspect of a case. If there is, then this court may well have to interfere, on well known principles. As Parker LJ said of the applicant in R v Kensington RLBC ex p Hammell [1989] 1 QB 518 at p 536:
"She is entitled to protection with regard to her public law right to have the necessary inquiries made and the decision properly made ... the injustice to the applicant, if she is not housed but is right, is clearly immense ... This is no more than interim protection for as long as it takes to decide the substantive matter ..."

This is an important judgment in countering the arguments that councils are likely to raise in cases of this kind because it involves findings that :-

  • A "total failure" on the part of the council to perform its duty such that the judicial interference is justified can arise where a very bad decision has been made and it is not limited as councils suggest to cases where council has refused to even consider the request of a decision.
  • The failure to make proper inquiries into an applicant's circumstances could amount to a total failure which is a much lower threshold than the kind of failure which councils ask the courts to apply.
  • The role of the Courts is not to interfere as such but to protect the public law rights of applicants.

A second important case to rely on is R (Paul-Coker) v Southwark LBC [2006] EWHC 497 (see above) where the court recognised that a council should not be allowed to simply go through the motions of considering a request for interim accommodation before rejecting it. It was not enough for the council to recite the Mohammed criteria. They had to show that they had applied them as well.


Where a local authority have given careful consideration to a request for temporary accommodation before review before issuing a decision refusing to provide it the applicant will have great difficulty in challenging it and obtaining an Order requiring the council to house him through Judicial Review proceedings. This is because the Administrative Court is likely to allow the council to go a long way before intervening.

However applicants with strong cases for challenging a negative decision set out in a Section 184 Notice and who are likely to be made street homeless as a result of the decision should not be put off challenging the decision refusing them accommodation. It is arguable that if they have a strong case and will suffer harm if homeless no reasonable council having properly considered their request could have refused to accommodate them. There is therefore at least a strong possibility that in reaching the decision to refuse accommodation the council have failed in their duties (such as to make inquiries or consider evidence) to a degree which a court might consider to be a "total failure" of duty justifying the making of an Order requiring the council to provide accommoation.

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