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Cite as: [2006] EWHC 497 (Admin)

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Neutral Citation Number: [2006] EWHC 497 (Admin)
CO/818/2006

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

Royal Courts of Justice
Strand
London WC2
3rd March 2006

B e f o r e :

MR JUSTICE FORBES
____________________

THE QUEEN ON THE APPLICATION OF MS M PAUL-COKER (CLAIMANT)
-v-
LONDON BOROUGH OF SOUTHWARK (DEFENDANT)

____________________

Computer-Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)

____________________

MR ADRIAN BERRY (instructed by Anthony Gold Solicitors) appeared on behalf of the CLAIMANT
MR D BROATCH (instructed by Southwark Council, Legal Department) appeared on behalf of the DEFENDANT

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

  1. MR JUSTICE FORBES: This is a homelessness matter under Part VII of the Housing Act 1996 ("the 1996 Act"), whereby the claimant seeks judicial review of the decision of the defendant Local Authority to refuse to provide interim accommodation pending review under section 188(3) of the 1996 Act. The decision in question was contained in a letter dated 24 January 2006, to which I shall come in due course.
  2. The matter has been set down very quickly. The claim was issued on 27 January 2006. On 2 February 2006 the defendant filed its Acknowledgment of Service and Summary Grounds of Defence. On 8 February 2006 Hughes J considered the matter on paper and granted permission to apply for judicial review. The judge also made the following written observations:
  3. "There are good arguable grounds for saying that the claimant is habitually resident in the UK ...
    Although the decision to accommodate pending review is a matter of discretion, it is arguable that the defendant has failed to give proper consideration, pursuant to ex p Mohammed, to the combination of the merits of the claimant's case on habitual residence and the consequence of an adverse decision."
  4. Finally, Hughes J made an order that the substantive claim and application for a mandatory order be heard within 14 days. So it was that the matter came before me.
  5. I turn first to deal with the legal framework. The legislative scheme for the housing of homeless persons by local authorities is set out in Part VII of the 1996 Act. A person must apply to an authority for assistance in order for the local authority to be under an obligation to decide what duty, if any, it owes to the applicant: see section 183 of the 1996 Act. If a local authority has reason to believe that a person may be homeless or threatened with homelessness, it is under an obligation to make such enquiries as are necessary to satisfy itself whether the applicant is eligible for assistance, and if so whether any duty, and if so what duty, is owed to the defendant under Part VII. The definition of homelessness is actually set out in sections 175-177 of the Act. However, it is not necessary to quote those provisions since there is no issue in this case as to the fact of the claimant's homeless state.
  6. When considering what duty, if any, is owed to the applicant, a local authority needs to consider whether the applicant can bring herself within a category of priority need under section 189 of the 1996 Act, and whether or not the applicant became homeless intentionally: see section 191 of the 1996 Act. There are different types of duties that may be owed depending on the outcome of the enquiries. These can be found in sections 190, 192, 193 and 195 of the 1996 Act. Again, it is not necessary to quote these provisions for the purposes of this judgment.
  7. When a local authority has concluded its enquiries, it must notify the applicant of its decision as to what duty, if any, is owed to the applicant: see section 184(3). Such a decision can be the subject of a review under section 202, and the review itself can be challenged on a point of law under section 204 of the 1996 Act. These important and relevant statutory provisions are in the following terms:
  8. "184(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.
    ...
    (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.
    ...
    (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).
    ...
    202(1) An applicant has the right to request a review of-
    (a) any decision of a local housing authority as to his eligibility for assistance.
    ...
    (3) A request for review must be made before the end of the period of 21 days beginning with the day on which he is notified of the authority's decision or such longer period as the authority may in writing allow.
    ...
    203(1) The Secretary of State may make provision by regulations as to the procedure to be followed in connection with a review under section 202.
    Nothing in the following provisions affects the generality of this power.
    ...
    (3) The authority, or as the case may be either of the authorities, concerned shall notify the applicant of the decision on the review.
    ...
    (5) In any case they shall inform the applicant of his right to appeal to a county court on a point of law, and of the period within which such an appeal must be made (see section 204).
    ...
    204(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."
  9. By section 185(1) a person is not eligible for housing assistance under Part VII if he or she is (a) a person from abroad and (b) ineligible for housing assistance. By section 185(3) the Secretary of State may make provision by regulations for descriptions of persons from abroad who are to be treated as ineligible for housing assistance. The terms of section 185(1) and (3), which are the relevant statutory provisions to which I have just referred, are as follows:
  10. "185(1) A person is not eligible for assistance under this Part if he is a person from abroad who is ineligible for housing assistance.
    ...
    (3) The Secretary of State may make provision by regulations as to other descriptions of persons who are to be treated for the purposes of this Part as persons from abroad who are ineligible for housing assistance."
  11. The relevant Regulations made by the Secretary of State under the power granted by section 185(3) of the 1996 Act are the Homelessness (England) Regulations 2000, SI 701 (as amended). Regulation 4 of those Regulations is the relevant Regulation with which this case is concerned. It is in the following terms:
  12. "Description of persons who are to be treated as persons from abroad ineligible for housing assistance.
    4(1) The following are descriptions of persons, other than persons who are subject to immigration control, who are to be treated for the purposes of Part 7 of the 1996 Act (homelessness) as persons from abroad who are ineligible for housing assistance -
    (a) subject to paragraphs (2) and (3), a person who is not habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland;
    ...
    A person shall not be treated as habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland for the purposes of paragraph (1)(a) if he does not have a right to reside in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland."
  13. Whilst an applicant is pursuing her application as to whether she is owed a full duty, and, if so, what duty, the question of whether a local authority ought to provide interim accommodation inevitably arises. Pending a decision on the full duty owed under section 184, a local authority is under a duty under section 188(1) to provide interim accommodation where they have reason to believe that an applicant may be homeless, eligible for assistance and have a priority need.
  14. Section 188(1) and sub-section (3), so far as material, provide as follows:
  15. "(1) If the local housing authority have reason to believe that an applicant may be homeless, eligible for assistance and have a priority need, they shall secure that accommodation is available for his occupation pending a decision as to the duty (if any) owed to him under the following provisions of this Part.
    ...
    (3) The duty ceases when the authority's decision is notified to the applicant, even if the applicant requests a review of the decision (see section 202). The authority may continue to secure that accommodation is available for the applicant's occupation pending a decision on a review."
  16. It can therefore be seen that when a local authority makes a decision on the duty owed under section 184, the duty to provide interim accommodation ceases by virtue of section 188(3). However, the same sub-section provides a power to continue to provide accommodation pending review if such a review has been requested. After review and pending appeal to the county court under section 204, in a case such as the present the applicant can apply to the county court for an order that the local authority provide interim accommodation: see the terms of section 204A(1) and sub-section (4)(a), which provide as follows:
  17. "204A(1) This section applies where an applicant has the right to appeal to the county court against a local authority's decision on review.
    ...
    (4) On an appeal under this section the court-
    (a) may order the authority to secure that accommodation is available for the applicant's occupation until the determination of the appeal (or such earlier time as the court may specify)."
  18. It can therefore be seen that, under section 188(3), a local authority has a discretion as to whether or not it should exercise its power to provide accommodation pending review. It is common ground that this power is constrained by the public law requirement not to act in a manner that is Wednesbury unreasonable or otherwise so as to constitute an abuse of power.
  19. So far as concerns the court's jurisdiction to review the exercise of a local authority's exercise of an administrative discretion, such as the one with which this case is concerned, I accept that the locus classicus is the House of Lords decision in the case of R v Hillingdon LBC ex p Puhlhofer [1986] AC 484. The leading speech was delivered by Lord Brightman, with whom other members of the House agreed. At page 518 Lord Brightman said this:
  20. "... it is not, in my opinion, appropriate that the remedy of judicial review, which is a discretionary remedy, should be made use of to monitor the actions of local authorities under the Act save in the exceptional case. The ground upon which the courts will review the exercise of an administrative discretion is abuse of power - eg bad faith, a mistake in construing the limits of the power, a procedural irregularity, or unreasonableness in the Wednesbury sense - unreasonableness verging on an absurdity: see the speech of Lord Scarman in R v Secretary of State for the Environment, Ex parte Nottinghamshire County Council [1986] AC 240, 247-248. Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely."

    Understandably, on behalf of the defendants in this case, Mr Broatch stressed the importance of the limited nature of this jurisdiction.

  21. In Francis v Kensington [2003] EWCA Civ 443, the Court of Appeal considered the extent and ambit of sections 204(4) and 204A of the 1996 Act. In the course of the judgment, the court also came to consider the nature of the discretion under section 188(3). The particular case concerned the power to accommodate pending an appeal to the County Court on a point of law. Simon Brown LJ (as he then was) stated:
  22. "15. Prior to the introduction of the Housing Act 1996, homelessness complaints against housing decisions were made directly to the High Court by way of judicial review against the relevant housing officer's decision. The application, most commonly brought on intentionality or suitability grounds, was invariably accompanied by an application for an interim injunction requiring the authority to provide accommodation pending the full judicial review.
    16. The approach adopted by the High Court in considering whether to grant an interim mandatory injunction was set out by the Court of Appeal in De Falco v Crawley Borough Council [1980] QB 460: an interim mandatory injunction requiring a local authority to perform their statutory duty would not be granted unless the applicant could show at least a 'strong prima facie case': per Lord Denning MR, at p 478, and Bridge LJ, at p 481. The court expressly disapproved of the application of the American Cyanamid balance of convenience test in such cases. This was in line with the settled law that a different and higher standard is required for a mandatory than a prohibitionary injunction: see Morris v Redland Bricks Ltd [1970] AC 652.
    17. Part VII of the Housing Act 1996 introduced into the homelessness legislation a new scheme of internal reviews followed by a right to a county court appeal on a question of law arising out of that decision, and in so doing relieved the increasing volume of applications to the Crown Office. Materially it provided, by section 188(3), that the duty to provide accommodation whilst inquiries were made as to whether a full duty was owed ceased when the decision was made. Thereafter there was a mere power to secure accommodation for the applicant. Likewise, under section 204(4), there was a further power, not a duty, to accommodate after a review but pending a county court appeal.
    18. It is important to note that the de Falco test was in the event more stringent than the American Cyanamid test and that the test would become more stringent still were the applicant to be seeking to enforce the exercise of a power, as opposed to a duty."
  23. Simon Brown LJ went on to consider the case of R v Brighton and Hove Borough Council, ex p Nacion [1999] 31 HLR 1095. He quoted from that latter case and from the judgment of Tuckey LJ, who said this:
  24. "As the court in Ali made clear, and as is clear from its wording, the council have a discretion as to whether or not to house an appellant in circumstances such as those in which the applicant finds himself. Any court, invited to judicially review such a decision, will only do so on well established grounds. Helpful guidance as to what councils making such decisions should consider was given by Latham J in the case of R v Camden London Borough Council ex parte Mohammed 30 HLR 315. I need only read from the headnote of that case where the learned judge was considering the exercise of a similar discretion which the council has pending review of their decision under the provisions of section 188(3):
    'in exercising their discretion the authority 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 and that to deprive him of accommodation could result in the denial of an entitlement.
    (4) ... certain matters will always require consideration, although other matters may also be relevant:
    (a) the ones requiring consideration were 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 was one which involved a very fine balance of judgment;
    (b) whether consideration is required of new material, information or argument which could have a real effect on the decision under review;
    (c) the personal circumstances of the applicant and the consequences of an adverse decision on the exercise of the discretion.'
    ...
    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. 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, bearing in mind that they exercise it, knowing the circumstances of the applicants, the range and availability of accommodation in their area and the other matters which were identified in the passage I have cited from the case of Ali and Nairne.
    For those reasons I would dismiss this renewed application."
  25. In Francis, Simon Brown LJ also went on to consider a statement of Lord Woolf MR as he then was in Ali, which was in the following terms:
  26. "... where the authority appeared to have applied its mind to the correct considerations as set out in Mohammed, the application would be almost bound to fail."

  27. As I have already indicated, it is, in effect, common ground that the relevant principles upon which the discretion under section 188(3) is to be exercised were formulated in the well-known case of R v Camden London Borough Council ex p Mohammed [1998] 30 HLR 315: see the quotation from the headnote in that case as cited by Tuckey LJ in ex p Nacion quoted above. However, it should also be noted that the Mohammed guidelines are effectively reproduced in the relevant Code (ie The Homelessness Code of Guidance for Local Authorities, July 2002, published by the Office of the Deputy Prime Minister). Paragraph 14.12 of the Code states as follows:
  28. "In considering whether to exercise their power to accommodate pending a decision on a review
    housing authorities will need to balance, on the one hand, the objective of maintaining fairness
    between homeless persons in circumstances where they have decided that no duty is owed to them
    and, on the other, proper consideration of the possibility that the applicant might be right (and the housing authority wrong) and that to deprive the applicant of accommodation could result in the
    denial of an entitlement under Part 7. In weighing the balance, there are certain matters that the
    housing authority will always need to consider (although other matters may also be relevant):
    a) the merits of the case itself and the extent to which it could be said that the decision was either one that appears to be contrary to the merits of the case or one that required a very fine balance of
    judgement that could have gone either way;
    b) whether any new material, information or argument has been put to the housing authority, which
    could have a real effect on the decision under review; and
    c) the personal circumstances of the applicant and the consequences to him or her of a decision not
    to exercise the discretion to accommodate.
    For housing authorities where, generally, only a small proportion of requests for a review are
    successful, it may be open to the housing authority to adopt a policy of deciding to exercise the power
    to accommodate pending a review only in exceptional circumstances. However, such a policy would
    need to be applied flexibly, and each case would need to be considered on the particular facts and
    circumstances. In deciding whether there were exceptional reasons in any particular case, the housing authority would need to ensure that account was taken of all material considerations and no account taken of any that were immaterial."
  29. It is to be noted that, in the exercise of its functions relating to homelessness, a local housing authority is under a duty to have regard to the guidance set out in the Code: see the terms of section 182(1) and (2) which, so far as material, are in the following terms:
  30. "182(1) In the exercise of their functions relating to homelessness and the prevention of homelessness, the local housing authority or social services authority shall have regard to such guidance as may from time to time be given by the Secretary of State.
    (2) The Secretary of State may give guidance either generally or to specified descriptions of authorities."
  31. Given the terms of Regulation 4A of the Homeless Regulations 2000 (see above) and the factual circumstances of this case (as to which, see below), it is helpful at this stage in my judgment to summarise how the term "habitual residence" is understood in English law. For the avoidance of doubt, Mr Berry, on behalf of the claimant, stressed that no reliance was placed upon the way in which the term is sometimes understood by reference to European Community law. Mr Berry referred, first, to the case of Re J (a minor) (Abduction: Custody Rights) [1990] 2 AC 562, and the passage from the speech of Lord Brandon at page 578 F-G, at which he said this:
  32. "... the expression 'habitually resident', as used in Article 3 of the Convention, is nowhere defined. It follows, I think, that the expression is not to be treated as a term of art with a special meaning, but is rather to be understood according to the ordinary and natural meaning of the two words it contains. The second point is that the question whether a person is or is not habitually resident in a specified country is a question of fact to be decided by reference to all the circumstances of any particular case. The third point is that there is a significant difference between a person ceasing to be habitually resident in country A, and his subsequently becoming habitually resident in country B. A person may cease to be habitually resident in country A in a single day if he or she leaves it with the settled intention not to return to it but to take up long-term residence in country B instead. Such a person cannot, however, become habitually resident in country B in a single day. An appreciable period of time and a settled intention will be necessary to enable him or her to become so."
  33. In effect, it was common ground that there appear to be two basic requirements that need to be fulfilled in order for habitual residence to be established. The first such requirement is that an appreciable period of time must elapse before a person can be considered habitually resident. The second such requirement is that the claimant must have a settled intention to reside in the United Kingdom.
  34. Turning first to deal with the first of those two requirements, namely an appreciable period of time, it is plain that this is a factor which will vary from case to case. In respect of the need for an appreciable period of time to elapse, Mr Berry referred to Nessa v Chief Adjudication Officer [1998] 2 All ER 728, which is the report of the decision of the Court of Appeal, and to the same case in [1999] 4 All ER 677, which is the report of the decision of the House of Lords in the same case. For the purposes of this judgment, it is necessary only to quote from the speech of Lord Slynn in the House of Lords at pages 682 to 683 where he said this:
  35. "With the guidance of these cases it seems to me plain that as a matter of ordinary language a person is not habitually resident in any country unless he has taken up residence and lived there for a period. There may be cases where for the purposes of making particular legislation effective (as for founding jurisdiction), it is necessary that a person should be habitually or ordinarily resident in some state at any one time. In other words, there cannot be a gap. Whether that is so does not have to be decided here. It seems to me, however, that whilst of course realising that some people seeking to come here may need immediate financial assistance, it is not necessary to the working of this particular legislation that the ordinary meanings of the word should be set aside in order that there is no gap between habitual residence in one state and habitual residence in another state.
    If Parliament had intended that a person seeking to enter the United Kingdom or such a person declaring his intention to settle here is to have Income Support on arrival, it could have said so. It seems to me impossible to accept the argument at one time advanced that a person who has never been here before who says on landing, 'I intend to settle in the United Kingdom' and who is fully believed is automatically a person who is habitually resident here. Nor is it enough to say I am going to live at X or with Y. He must show residence in fact for a period which shows that the residence has become 'habitual' and, as I see it, will or is likely to continue to be habitual.
    I do not consider that when he spoke of residence for an appreciable period, Lord Brandon meant more than this. It is a question of fact to be decided on the date where the determination has to be made on the circumstances of each case whether and when that habitual residence had been established. Bringing possessions, doing everything necessary to establish residence before coming, having a right of abode, seeking to bring family, 'durable ties' with the country of residence or intended residence, and many other factors have to be taken into account.
    The requisite period is not a fixed period. It may be longer where there are doubts. It may be short (as the House accepted in In re S (A Minor) (Custody: Habitual Residence) [1998] AC 750, my speech at p 763A; and Re F (A Minor) (Child Abduction) [1994] FLR 548, 555, where Butler-Sloss LJ 'A month can be ... an appreciable period of time.')
    There may indeed be special cases where the person concerned is not coming here for the first time, but is resuming an habitual residence previously had (Lewis v Lewis [1956] 1 WLR 200: Swaddling v Adjudication Officer, (Case C-90/97) [1999] All ER (EC) 217). On such facts the Adjudication Officer may or of course may not be satisfied that the previous habitual residence has been resumed. This position is quite different from that of someone coming to the United Kingdom for the first time."
  36. It is therefore clear that what constitutes an appreciable period of time for these purposes will vary from case to case and will depend on the facts of the individual case. Thus, in CIS 4474/2003, the Commissioner, deciding that matter, noted that:
  37. "What is an appreciable period depends on the circumstances of the particular case. But I agree with the Secretary of State that in the general run of cases the period will lie between one and three months. I would certainly require cogent reasons from a tribunal to support a decision that a significantly longer period was required."
  38. I now turn to the second requirement when considering the issue of habitual residence, namely a settled intention to reside.
  39. In Shah v Barnet [1983] 1 All ER 226 at 234, Lord Scarman stated, when discussing the concept of ordinary residence, that:
  40. "... I agree with Lord Denning MR that in their natural and ordinary meaning the words mean 'that the person must be habitually and normally resident here, apart from temporary or occasional absences of short or long duration'. The significance of the adverb 'habitually' is that it recalls two necessary features mentioned by Lord Sumner in Lysaght's case, namely residence adopted voluntarily and for settled purposes."

    Lord Scarman continued at page 235 as follows:

    "Unless, therefore, it can be shown that the statutory framework or the legal context requires a different meaning, I unhesitatingly subscribe to the view that 'ordinarily resident' refers to a man's abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or long duration."
  41. Further on in page 235, at letters H-G, Lord Scarman said:
  42. "And there must be a degree of settled purpose. The purpose may be one or there may be several. It may be specific or general. All the law requires is that there is a settled purpose. That is not to say that the propositus intends to stay where he is indefinitely; indeed his purpose while settled, may be for a limited period. Education, business or profession, employment, health, family or merely love of the place spring to mind as common reasons for a choice of regular abode. And there may well be many others. All that is necessary is that the purpose of living where one does has a sufficient degree of continuity to be properly described as settled."
  43. As to whether there is a settled intention, various factors have been suggested as aids to assessment. These include a claimant's reasons for coming to the United Kingdom and where a claimant's centre of interest lies. However, I accept that there is no binding or closed list of factors that are required to be considered, and no regulation of the weight to be given to the facts marshalled behind each factor specified. The definition of Lord Scarman sets out the necessary principles that govern the decision, namely:
  44. (i) residence must be adopted voluntarily and for settled purposes;
    (ii) settled purposes must be part of the regular order of a claimant's life for the time being, whether of short or long duration;
    (iii) there is no need for an intention to reside indefinitely;
    (vi) all that is necessary is that the purpose of living where one does has a sufficient degree of continuity to be properly described as settled.
  45. Annex 22 of the Code of Guidance for Local Authorities also sets out a number of factors to be considered in assessing habitual residence. It also sets out the general principles to be applied. It is, in general terms, very helpful in that regard.
  46. Finally, on this aspect of the matter it is to be noted that both ordinary residence and habitual residence are referred to in the authorities. For all practical purposes, these appear to be interchangeable concepts, and certainly nothing of any significance turns in this case on the use of those two different expressions: see the speech of Baroness Hale in Mark v Mark [2005] UKHL 42 at paragraph 33.
  47. I now turn to deal with the facts. The claimant is a young woman aged 20. She is a British citizen, born of a British mother in Sierra Leone on 10 July 1986. It appears that she came to the United Kingdom with her parents in 1981, staying here until 2000, when she returned to Sierra Leone with her father. She then came back to the United Kingdom for three extended holidays during June to September 2003; June to September 2004; and December 2004 to January 2005. On 6 May 2005 the claimant returned to the United Kingdom and went to live with her uncle. On 8 September 2005, following the breakdown of the arrangements with her uncle, the claimant approached the defendant for assistance as homeless under Part VII of the 1996 Act.
  48. On 16 September 2005 the defendant made a decision under section 184 of the 1996 Act that the claimant was not eligible for assistance within the meaning of section 185 of the 1996 Act on the basis that she was not habitually resident. So far as material, the decision letter was in the following terms:
  49. "The Council has now reached a decision on your application for housing assistance under the above Act as follows:
    You are homeless as defined in Section 175 of the above Act.
    You are in priority need as defined in section 189(1) of the above Act.
    You are not eligible for assistance as defined in section 185 of the above Act.
    The Council has taken into consideration all the evidence and information provided at the time of your interview and the results of the Council's enquiries into your application.
    The Homelessness Act 2002 states that a person is eligible for homelessness assistance subject to their being habitually resident in the UK. This applies if they have entered the UK in the last two years. To meet this requirement, you must have been habitually resident in the UK for at least six months prior to your application for housing assistance.
    It is the view of this Authority that you are not habitually resident. In reaching this decision we have considered the following facts:
    You stated that you have been living in Sierra Leone for the past five years and returned to the UK on 6 April 2005. You also said that you are unemployed and not in receipt of any welfare benefit.
    In line with the Homelessness Code of Guidance I have to consider whether you returned to the UK to resume a former period of habitual residence. On the information provided to me I am satisfied that this is not the case. Although you are a British passport holder, you have not resided in the UK for the past ten years. Your main place of residence has been in Sierra Leone.
    I have looked at whether you came to the UK to join family or friends. I am satisfied that on the information provided to me you did not come to the UK for this reason.
    I have gone on to look at your plans to remain in the UK. You have stated that it is your intention to stay in the UK. It is clear to me that you have made very limited provisions to sort out a move to the UK prior to arriving here. Despite the fact that you are pregnant, you arrived in the UK without making any arrangements either to accommodate or finance your stay here.
    The general principles laid down in the Code of Guidance suggest a 'commonsense' approach when looking at habitual residence. I have found, for the reasons outlined above, that you are clearly not habitually resident in the UK. It is clear that you made no plans prior to your arrival here.
    Therefore, it is the view of this Authority that you are not eligible for housing assistance, as you are not habitually resident. In line with the provisions of the Housing Act, the Council has no duty to provide you with accommodation."
  50. On 4 October 2005 the claimant's previous solicitors requested a review of that decision, and interim accommodation pending review. The solicitor's letter noted that the claimant had lived in the United Kingdom for nine years, had attended Waverley School in Peckham, and has now returned to the United Kingdom to embark on a full-time college course. It also noted that she was pregnant and living with a friend in her friend's bedroom.
  51. On 25 November 2005 the defendant issued a review decision under section 202 of the 1996 Act. This decision letter is not the subject of challenge in these proceedings, however its contents are important and merit being extensively quoted as follows:
  52. "I write regarding your request for a review of the Council's decision on your homelessness application. I am the Senior Officer appointed to carry out the review on the basis of facts known to me at the date of review together with the Code of Guidance to the above legislation.
    In reaching this decision, I have also taken into account all the information on your homeless file together with written submissions from your legal representative at Hallam Peel & Co.
    Having completed by enquiries, I have concluded the following:
    - that you are not eligible for housing assistance within the terms of the above legislation.
    I must therefore uphold the Council's decision given in the section 184 decision letter of 16 September 2005 and conclude that the Council does not have a duty to house you.
    The uncontested facts of your application are that you approached the Council as homeless in September 2005. You stated that you arrived in the UK on 6 April 2005 from Sierra Leone. You stated that you have been living with your uncle at 13 Comus House, London, SE17, but were asked to leave the property due to overcrowding. On 16 September 2005 you were issued with a section 184 decision letter advising you that the Council was of the opinion that you were not habitually resident in the UK and that you were therefore not eligible for housing under the terms of the above legislation.
    Your solicitor has made the following statements in relation to this decision:
    - They state that you returned to the UK in order to embark on a college course.
    - They state that from 1991 until 2000 you lived in the UK and went to school in Peckham, and that in 2000 you returned to Sierra Leone in order to complete your formal education.
    - They state that not all of the facts surrounding your situation were taken into account when the original decision was made.
    The first issue I have looked into is whether you returned to the UK to resume a former period of habitual residence. On the evidence before me I have concluded that this is not the case. You have stated at interview that you are originally from Sierra Leone and came to live in the UK from 1991 until 2000. You stated that in 2000, your father decided that he would be returning to Sierra Leone to live on a permanent basis. He relocated there and found accommodation for you and him in the private sector. At this time, you were 14 years old and were still a child in the care of your parents. At this stage your parents made a decision to separate and it was decided that you would be living with your father. After you left with your father to go and live in Sierra Leone, your mother stayed in the UK for a short while and then relocated to Spain on a permanent basis. She has re-married and continues to live in Spain. Neither of your parents now live in the UK. Many families travel for periods of time overseas, but you made it clear that your father made a decision to relocate to Sierra Leone on a permanent basis -- he is still living there. As part of the family, you also went there on a permanent basis, attending school. You continued to live there for the rest of your childhood up until April this year. I am satisfied that your decision to return to the UK was not to resume a former period of habitual residence, but was to start a new life for yourself as a young adult."

    Pausing there, it is worth noting that Mr Berry made it absolutely clear that it was not any part of the claimant's case in these proceedings that she had returned to the United Kingdom in order to resume a former period of habitual residence. I continue with the quotation from the letter of 25 November:

    "I have gone on to establish what arrangements you made for work both prior to coming to the UK and since your arrival. You stated at interview that you made no attempts to find work for yourself in the UK whilst you were still in Sierra Leone. You have stated that you had tried to get work once you arrived in the UK -- you had one job interview lined up but you did not attend the interview as it was in Clapham, which you felt was too far away. You also acknowledged that you were aware that you were pregnant when you came to the UK and so you would have known that your chances of finding employment as your pregnancy developed would become harder for you. Since your arrival in the UK you have stated that you have applied for Job Seekers Allowance twice and for Income Support once. On all three occasions you have stated that you have been rejected for these benefits owing to the fact that you are not considered habitually resident in the UK. You have shown evidence that your last rejection for benefits was on 11 November 2005. I am satisfied that on the evidence available you have not made any realistic attempts to find work either before or since your arrival in the UK and that you have instead sought to rely on the benefit system which has, to date, not made any payments for you.
    I have looked at whether you came to the UK to join family or friends. You have stated that you have no family in the UK other than your uncle, and that he has now married and his wife has asked you to leave due to overcrowding. Your father continues to live in Sierra Leone and your mother lives in Spain with her husband. You said that you do not have any brothers and sisters. You said that your plans to stay with your uncle were only temporary until you had sorted somewhere to stay for yourself.
    I have gone on to look at your plans to remain in the UK. It is clear to me that you made very limited provisions to sort out a move to the UK prior to arriving here. Despite the fact that you are pregnant, you arrived in the UK without making any arrangement either to accommodate yourself satisfactorily, or finance your stay here. The benefits system exists as a last resort for people who are either unable to work or who are having difficulty in gaining employment. The same is true in applying to the Council as homeless either via Social Services, the Housing Department. Your actions show that you have made no real plans either prior to or since your arrival to secure accommodation or employment other than try to access state benefits and emergency housing.
    Your solicitor has stated that the reason you came to the UK was in order to attend college. At interview I asked you what college course you had enrolled for prior to your arrival in the UK. You stated that you did not sort out your college before coming to the UK. I asked you what you had done since arriving in the UK to enrol on a college course. You stated that you had not looked for a college yet, but that you hoped to do this in April next year after you had had your baby. I am not satisfied on the evidence available that it was your true intention to come to the UK to further your academic studies. As a young, single, pregnant woman with a limited support network, I am of the opinion that you would have made far more extensive plans prior to coming to the UK had it been your true intention to study whilst you were here.
    I have looked into your length of residence in Sierra Leone. You have confirmed that Sierra Leone has been your principal home for the last five years, and that it was your home from 1986 (when you were born) until you were five years old. It is clear that your family have lived abroad both in the UK and in Spain, but I am satisfied that your principal home has been with your father in Sierra Leone.
    I have looked at the issue of where you centre of interest lies. You arrived in the UK a few months ago without knowing anybody who was in a position to give you long term assistance. The arrangement with your uncle broke down after only a few months and you have been asked to leave his home. Having lived in Sierra Leone for the first five years of your life, you returned to live there aged 14 with your father. It would be reasonable to expect you to have acquaintances and a good local knowledge of the community much more so than here in the UK having spent over half your life living there. You stated that you attended schools whilst you lived there and that you had local friends in the area. All of this points to the fact that your centre of interest is clearly in Sierra Leone.
    The general principles laid down in the Code of Guidance suggest a 'commonsense' approach when looking at habitual residence. I have found, for the reasons outlined above, that you are clearly not habitually resident in the UK. It is clear that you made very limited plans prior to your arrival here. Your plans since arriving here have been to access state benefits without making any real attempts to find employment or accommodation on your own. You have limited family connections to the UK -- namely an uncle who has assisted you for a short period but has stated that he can no longer do so. Commonsense suggests that while you have a wish to reside here, these actions are not supported by any real plans of long term residence in the UK. In determining where your centre of interest is, I have looked at the two countries and your connections to them objectively, and it is clear that your interest remains in Sierra Leone.
    I am satisfied in light of the above that you are therefore not eligible for housing under the terms of the homelessness legislation. This means that the Council does not have a duty to house under the terms of the above legislation. Should you need further assistance, you should consider contacting Social Services who may be able to assist you. To this end you will need to contact your social worker for further advice as to what duties you may be owed under separate legislation."
  53. On 29 December 2005 the claimant re-presented herself at the defendant's Homeless Persons Unit. On 30 December 2005 the defendant made a fresh decision under section 184 of the 1996 Act that the claimant was not eligible for assistance within the meaning of section 185 of the 1996 Act, again on the basis that she was not habitually resident. In the letter, the defendant asserted, inter alia, that:
  54. (i) in order to be eligible "... you must have been habitually resident in the UK for at least 6 months prior to your application for housing assistance";
    (ii) the claimant's case was that she had been living in Sierra Leone for the past five years, returning on 6 April 2005, that she was unemployed and not in receipt of welfare benefit;
    (iii) it was satisfied on the evidence that the claimant was not returning to resume a period of former habitual residence;
    (iv) the claimant is a British passport holder but has not resided in the UK for the past five years;
    (v) her main place of residence has been Sierra Leone;
    (vi) it was satisfied that the claimant had not come to the UK to join family or friends;
    (vii) although the claimant had stated it was her intention to remain in the UK, she had made very limited provision to sort out a move to the UK prior to her moving here, and that notwithstanding that she was pregnant on arrival, she had not made any arrangement to accommodate or finance her stay here;
    (viii) the claimant was not eligible for assistance as she was not habitually resident."
  55. On 20 January 2006, the claimant sent the defendant a request for a review of the decision and for interim accommodation pending review. The request was sent on her behalf by the solicitors now acting for her. The solicitors' letter in question was, so far as material, in the following terms:
  56. "We have been instructed by our above-named client in connection with your negative section 184 decision dated 30 December 2005.
    We write on behalf of our client to request a review under section 202 of the Housing Act 1996 (as amended by the Homelessness Act 2002).
    We also write to request that you provide our client and his/her family with temporary accommodation pending review.
    Background
    On 29 December 2005 our client attended at the homeless persons unit. She had just given birth to her daughter, Savannah, on 24 December 2005 and had no accommodation. On that day, she was told that no-one could assist her and she should return on 3 January 2006. She returned to hospital and on 30 December 2005 again applied for assistance. On the same day, without investigation, the homeless persons unit issued to her a letter confirming that whilst she was homeless, in priority need, she was not eligible for assistance because she was not habitually resident in the UK.
    Our client was born in Sierra Leone on 10 July 1986. Her mother is English. In 1991 she came to the UK to join her mother. In the mid 1990's her father came to the UK. In 2000 our client's mother moved to Spain and her father decided to return to Sierra Leone. Our client had no choice in this matter; she was 14 and under her parent's authority.
    Our client returned to the UK for extended breaks; staying between June and September 2003, June and September 2004, and December 2004 until January 2005. On 6 May 2005 our client returned to the UK as an adult to resume permanent residence.
    Ms Paul-Coker considers that her home is the UK. She has lived here during her formative years and has made many friends, with whom she has maintained and continues to maintain contact. A number of her relatives remain in the UK.
    In May 2005 our client came to the UK on a single airfare and with all her belongings. She has no intention to return to Sierra Leone in the near future.
    Our client is currently staying at a bed and breakfast hotel at 888 old Kent Road, London SE15 1NQ provided by Social Services. This accommodation will end on 18 January 2006.
    Grounds for Review Request
    The following submissions are based on the evidence currently available to us; we anticipate that we may need to make further representations once we have had sight of our client's file.
    We consider that your decision dated 30 December 2005 is flawed for the following reasons:
    You have failed to properly investigate our client's case.
    You have based your decision on incorrect facts; namely that she came to the UK on 6 April 2005.
    You have failed to give any or any adequate reasons for the decision.
    The decision merely reiterates the earlier decision of 16 September 2005.
    You have failed to consider all relevant matters and consider irrelevant matters. In particular, the decision-maker seeks to rely on the refusal of the DWP to grant job-seekers allowance. The decision-maker fails to consider the fact that the applicant came to the UK on a single airfare and with all her belongings.
    In the light of the above, we consider that you should withdraw your decision and reach a fresh decision on our client's application. Please confirm whether you will agree to do this."
  57. On 24 January 2006 the defendant replied, refusing interim accommodation pending review. This is the decision under challenge and was expressed in the following terms:
  58. "Your client has approached this Council as a homeless person and a section 184 decision was issued on 30 December which states that Ms Paul-Coker is not habitually resident in the UK and is therefore not eligible for housing under the terms of the above legislation. Ms Paul-Coker made an application earlier in 2005, and an earlier decision also stated that Ms Paul-Coker was not habitually resident and was therefore not eligible. This decision was upheld on review on 25 November 2005.
    The Code of Guidance provides assistance to local authorities when determining whether or not they should exercise their power to accommodate pending review. It advises that Local Authorities should have regard to the merits of the case and the extent to which the decision appears to be contrary to the merits of the case, or where the decision could be made either way. The Local Authority should also consider new information which might affect the decision and also look at the personal circumstances of the applicant.
    I have looked through the information available to me on file, together with the information supplied by yourselves relating to Ms Paul-Coker's eligibility."

    I pause and interpolate it is noteworthy that, included in the information contained in the file, are the handwritten notes of the two main interviews carried out by the local authority with the claimant. The notes are very cursory in nature and, in my judgment, plainly demonstrate little more than a fairly nominal exercise in enquiring into the circumstances of the claimant.

  59. Proceeding with the letter:
  60. "Ms Paul-Coker has now resided in the UK for a little longer since the decision made on 30 December 2005. I have also noted that Ms Paul-Coker has now had her baby since the review decision of 25 November 2005. However, aside from this, there is no further evidence to show that Ms Paul-Coker is habitually resident in the UK. I also note that she has been refused access to welfare benefits, and that as a result is reliant on the assistance of Social Services. I am not satisfied that there has been any information made available to the Council either since the review decision of 25 November 2005 or since the section 184 decision on 30 December 2005 that shows that Ms Paul-Coker is likely to be found habitually resident in the UK.
    I have balanced this information (in the interests of fairness) with the situation of other homeless families where it has been decided that no duty is owed, and have concluded that the Council will not be providing Ms Paul-Coker with accommodation pending the outcome of her review. Should she be unable to secure accommodation for herself in the private sector, she may consider contacting Social Services to see if they have any ongoing duty to assist her under separate legislation."
  61. When dealing with the first ground of challenge, Mr Berry submitted that it was clear from the terms of the decision letter that there had been no properly directed consideration of the factors and criteria listed in ex p Mohammed as being the appropriate matters for consideration in cases such as the present. He maintained that, whilst the factors to be considered are set out in the letter, the reasoning in support (such as it is) simply does not address the merits of the case, nor the extent to which it could properly be said that the decision was one which appears contrary to the apparent merits, or was one which required a very fine balance of judgment that could have gone either way. Mr Berry submitted that the reasoning in the letter of 24 January 2006 simply did not address the test in an adequate and sufficient manner. Thus, he submitted, there is no specific reason given as to why a period of over seven months residence was considered insufficient at this time, and why it could not be said to amount to an appreciable period of time. He pointed out that seven months is far longer than the periods of time that are usually required for satisfaction of the appreciable period of time element of the habitual residence test. He submitted that strong and cogent reasons were needed for the apparently adverse conclusion reached and that such reasons are conspicuous by their absence.
  62. Mr Berry submitted, further, that there is no adequate reasoning given as to why the birth of the baby has made no difference to the satisfaction of the habitual residence test. He suggested, in my view with considerable force, that it is a highly material factor. A baby born in the United Kingdom to a mother who is a British citizen is automatically a British citizen: see section 1(1) of the British Nationality Act 1981. Mr Berry submitted that it is unreasonable to more of less disregard or discount the birth of a British citizen to another British citizen in Britain and to conclude, in effect, that it did not constitute powerful evidence of a settled intention to reside for habitual residence purposes. But that is what it appears that the decision-maker has done. Mr Berry submitted that strong and cogent reasons were required for the apparent adverse conclusion reached on this aspect of the matter by the decision-maker. Again, such reasons are conspicuous by their absence.
  63. Mr Berry submitted, further, that no consideration at all was given as to why the claimant's return to the United Kingdom for visits in 2003, 2004 and 205, the fact that she travelled on a single airfare, the fact that she considers the United Kingdom to be her home, the fact that she lived here in her formative years as a child and left because her parents decided to leave, the fact that she had friends and family here, and the fact that she brought all her belongings with her, made no material difference. He pointed out that all these matters had been raised in the claimant's solicitor's letter of 20 January 2006, effectively for the first time, and were therefore to all intents new material for appropriate consideration by the decision-maker. But the letter in question gives little or no indication as to what, if any, real consideration was given to any of these matters.
  64. Mr Berry submitted, correctly in my view, that all these matters were relevant to the assessment of the extent to which it could properly be said that the decision was one that was either contrary to the apparent merits or was one which involved a very fine balance and judgment.
  65. Having regard to these additional matters, Mr Berry went on to point out that the decision letter was simply wrong when it asserted that, apart from the passage of time and the birth of the baby, there was no further evidence to show that the claimant is habitually resident in the United Kingdom.
  66. Mr Berry also submitted that the section 188(3) decision of 24 January 2006 plainly follows on from the section 184 letter of 29 December 2005. He suggested, correctly in my view, that the latter letter contains an obvious misdirection in law when it states that, in order to be eligible, "You must have been habitually resident in the United Kingdom for at least six months prior to your application for housing assistance". As Mr Berry pointed out, there is no such test. Thus, the section 184 decision, upon which the reasoning in the section 188(3) decision letter of 24 January 2006 is largely based when considering the extent to which the claimant's arguments invite the conclusion that it can properly be said that the decision was one which was either contrary to the apparent merits or was one which involved a very fine balancing judgment, was itself founded on a significant error of great materiality, yet there appears to have been no consideration given to that important aspect of the matter when the decision-maker was assessing the merits.
  67. On behalf of the defendants, Mr Broatch submitted that a perusal of the letter of 24 January 2006 shows that the substance of the Mohammed guidelines had been applied. In this regard, he stressed that the Code of Guidance replicates the Mohammed guidelines as I have indicated earlier in this judgment. He submitted that not only had the guidelines been applied, but the decision-maker had given an adequate summary of all the relevant criteria. Mr Broatch suggested that the decision-maker had looked at the merits of the claimant's case on review and whether it was a decision which, on its face, appeared to be contrary to the merits, or a finely balanced decision which could have gone either way. He has also looked at the claimant's personal circumstances. Mr Broatch submitted that, in considering the merits of the review, the decision-maker looked at all the relevant material concerning the claimant's eligibility and noted that, apart from the birth of the baby, there had been no new material available to the Council since the earlier decision.
  68. Mr Broatch therefore contended that all the above factors were entirely in accordance with the Code and the Mohammed guidelines. He submitted that there had been a balancing of a basket of factors and a proper exercise of discretion which was not susceptible to any appropriate challenge on Wednesbury principles.
  69. Mr Broatch also submitted that the first ground of challenge was, in effect, a reasons challenge, and he referred to the decision of R v Brent LBC ex p Baruwa [1987] HLR 915 per Schiemann LJ at page 920, in which he stated:
  70. "where ... an authority is required to give reasons for its decision, it is required to give reasons which are proper, adequate and intelligible and enable the person affected to know why they have won or lost. That said, the law gives decision-makers a certain latitude in how they express themselves and will recognise that not all those taking decisions will find it easy to express themselves with judicial exactitude."
  71. Mr Broatch submitted that decisions are not to be faulted because not every single matter is mentioned or every reason set out. He referred to the case of Tickner v Mole Valley District Council [1980] LAG 187 in the judgment of Lord Denning MR in that case. Mr Broatch therefore submitted that the reasons given in the 2 January 2006 letter satisfied the Baruwa test in that the claimant and her advisers were given sufficient reasons to know why she had lost her application.
  72. I do not agree. As it seems to me, the letter of 24 January 2006 does little more than identify the relevant criteria, but does little or nothing to apply the relevant facts of this case to those criteria and reach a properly or adequately reasoned decision. Thus, in particular, no explanation or reasons are given as to why over seven months' residence is apparently considered insufficient to satisfy the appreciable period of time element of the habitual residence test. In my view, it is not without significance that the "six months error" that is to be found in both section 184 decisions was not expressly, or indeed implicitly, disavowed in either the review decision letter of 25 November 2005, or the decision letter under challenge of 24 January 2006. Both letters were written by the same decision-maker.
  73. Furthermore, the evidential importance of the birth of Ms Paul-Coker's baby is simply not addressed in the decision letter. Nor is the other important additional material that had been specifically brought to the attention of the local authority: that is to say the fact that the claimant lived and was educated here during her formative years; the fact that she has spent a number of extended holidays here in 2003, 2004 and 2005; the fact that she travelled to United Kingdom on a single airfare ticket, bringing all her belongings with her; and the fact that she has friends and family in the United Kingdom.
  74. In my view, the complete absence of any explanation or reasoning in the decision letter, dealing with these various important aspects of the case, demonstrates that the ex p Mohammed balancing exercise has not been fully or properly carried out by the decision-maker, despite lip service having been paid to it. The fact that the decision-maker in his earlier review decision of 25 November 2005 made a clear finding (see page 2 of the letter) that he was "satisfied that your decision to return to the UK was not to resume a former period of habitual residence, but was to start a new life for yourself as a young adult (my emphasis)", ie in effect a finding of an intention to settle on the part of the claimant, made it all the more necessary for careful consideration to be given to the material identified above, and for an adequate explanation and/or reasons to be given for such conclusions as were reached on the merits of the case in the light of that important material.
  75. For those reasons, I have therefore come to the firm conclusion that there has not been a properly directed consideration of the factors identified in ex p Mohammed. In particular, there has not been any proper consideration of 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 was one which involved a very fine balance of judgment.
  76. It follows that I am therefore satisfied that the decision contained in the letter of 24 January 2006 is one of those exceptional cases in which my conclusion is that the decision was, for the reasons indicated, Wednesbury unreasonable and/or irrational. The first ground of challenge, therefore, succeeds for that reason, and the decision in question must be quashed.
  77. As it seems to me, my conclusion on ground 1 makes it unnecessary to go on and consider the remaining grounds of challenge, which either do not add very much to the first ground or, to some extent, overlap it, or are effectively incorporated into it: see for example ground 3.
  78. For the foregoing reasons, this application for judicial review succeeds. I will hear further submissions from counsel on the appropriate terms of the order.
  79. MR BERRY: My Lord, I am grateful. If I could just take instructions for a moment. My Lord, there was an application as well for a mandatory order in this case as part of the initial claim as lodged. I am aware at the moment that the claimant is being accommodated on a without prejudice basis, effectively, by Social Services.
  80. MR JUSTICE FORBES: Yes, I will hear what Mr Broatch has to say about a mandatory order, but it seems to me at first blush that what you have is a quashing of the decision. That opens the door to you again to go back for an immediate further decision, and, in the light of my judgment, it would be surprising if the decision was the same as the one we have had so far.
  81. MR BERRY: My Lord, I am told on instructions that Social Services expect her to leave her current accommodation on Tuesday. So there may be some scope for -- maybe Mr Broatch can assist on what the local authority's plans are. I do see the force of your Lordship's point about the force of the judgment.
  82. MR JUSTICE FORBES: When I completed the judgment, of course it left me wondering, beyond quashing the decision, how much further I could go in all the circumstances. It is not unusual, of course, in cases such as this for agreement to be reached as to what should be done. I do not know, if I rise for a few moments, whether that might be productive. Is there any point in me giving you a moment?
  83. MR BROATCH: My Lord, it seems to me that we may be --
  84. MR JUSTICE FORBES: You are still a bit shell-shocked, are you, Mr Broatch?
  85. MR BROATCH: I do not think shell-shocked is the word I would have used. One knows that many judgments delivered in these buildings are not ones which are expected. But your Lordship quashes the decision, which means there is no section 188 decision, ergo the authority have a statutory duty to make a fresh decision on that point. It is also worthy of note that the review decision under section 202 has still not been made -- 56 days has not elapsed -- although the authority could make it earlier once it receives the applicant's solicitor's final representations. So a possibility which your Lordship -- I do not think I have anybody here from whom I can take instructions to get an undertaking -- the present position is, just trying to draw this strand together, is that she is being housed by Social Services under their discretionary powers either under the Children Act or under the National Assistance Act. But the Social Services have not agreed to house her until the review decision is made.
  86. MR JUSTICE FORBES: No.
  87. MR BROATCH: So if your Lordship were minded to make any form of mandatory order, your order would thus be: (1) decision of 24 January quashed; (2) that the authority was in some way ordered not to discontinue the claimant's accommodation until either it makes a fresh 188(3) decision, or it makes the section 202 decision -- whichever is the earlier. Once the section 202 decision is made, it would not be necessary to make a further 188(3) decision.
  88. MR JUSTICE FORBES: What are your instructions, Mr Berry?
  89. MR BERRY: My Lord, that is as much as we could expect under the statutory framework, because clearly until the decision is made under section 202, as my learned friend points out, the matter goes off.
  90. MR JUSTICE FORBES: Then it goes to the county court.
  91. MR BERRY: Precisely, and once there is a section 188(3) decision, if it were to be adverse, we would of course have to look at the reasons given for that.
  92. MR JUSTICE FORBES: If you are both of a mind as to how that should be dealt with, would it help if I just rise for a few moments while you work out a suitable term of order or are you without instructions?
  93. MR BROATCH: I am without instructions, and I am not consenting to that. But if that order were made, in the light of your judgment, I would not be shell-shocked.
  94. MR JUSTICE FORBES: I see. In that case, there is no point in me rising. Would you write out the form of order which reflects that, Mr Berry, and let Mr Broatch see it and then pass it up to me, and I will, of course, make it quite clear that Mr Broatch is not consenting to this, but does not raise any arguments of principle in opposition to it.
  95. MR BROATCH: My Lord, it is not worth arguing about at the moment, because it will be for a relatively short period.
  96. MR JUSTICE FORBES: And so far as costs are concerned?
  97. MR BERRY: My Lord, we seek our costs, and also for detailed assessment for public funding purposes. We were successful in the judicial review. I have no other submissions to make on that point.
  98. MR JUSTICE FORBES: Anything you want it say about that?
  99. MR BROATCH: The second point part does not concern us. As to the first part -- I have nothing further to say. If your Lordship is going to apply the normal rule, then I would have very little to say.
  100. MR JUSTICE FORBES: Is there anything else you want to say, Mr Broatch?
  101. MR BROATCH: Yes, my Lord, I would ask your Lordship to give the authority permission to appeal.
  102. MR JUSTICE FORBES: No, permission is refused. It seems to me that this is not likely to succeed and there are no other special circumstances relating to. Anything else? I will have to fill the form in when the associate gets back.
  103. MR BROATCH: When your Lordship comes to consider giving your reasons for refusing permission to appeal, one facet of your Lordship's judgment which appeared to be of -- I accept that there is the mistake about the six months -- but one facet of your Lordship's judgment which appeared to be of great weight in how your Lordship found the decision to be Wednesbury unreasonable --
  104. MR JUSTICE FORBES: Which is what?
  105. MR BROATCH: Which was the birth of the child. Your Lordship did not address the question that you indicated that you were going to refrain from addressing, but that does raise a question of considerable importance which is not juridically explored at all as to what is the status in terms of habitual residence of a child born to a non-habitually resident mother, if that is what she is, and whether that child becomes habitually resident, or whether by virtue of the birth of the habitually resident child, the non-habitually mother crystallises --
  106. MR JUSTICE FORBES: I thought I was very careful not to say anything about the actual status of the child, other than that the child is a British citizen, and the fact that his birth to a British citizen in the UK was, in my view, powerful evidence in the context of an intention to settle.
  107. MR BROATCH: And in that context, your Lordship has attached no weight to any consideration that the child might not be habitually resident.
  108. MR JUSTICE FORBES: It is not a case of attaching no weight to it; I have merely indicated that it is powerful evidence. Of course, the sort of matters you would want to raise, no doubt, if one got involved in the exercise, would have to be put into the balance. But the only point for this case is that the decision-maker simply did not even start to consider the matter. I do not want to revamp my judgment, but that is the point.
  109. MR BROATCH: But the point I am making, with not disrespect or impertinence, if those matters are neither relevant or cogent, for legal reasons then it matters not that the decision-maker did not hold them in the balance, and therefore a point of law as to the consequence of that birth, both on the status of the child and on the status of the mother if she had remained, contrary to your Lordship's prima facie view -- non-habitually resident -- are matters of considerable legal importance which are unexplored juridically, ergo there is a matter of some public importance and interest which certainly might apply to authorities.
  110. MR JUSTICE FORBES: Certainly my intention and my view of it is that I am not taking the matter any further than I indicated in the course of submissions. I did indicate that I was not proposing to get involved in an analysis as to precisely what the status of the child was.
  111. MR BROATCH: My Lord, that I accept. But the point I am making, albeit obviously badly, is that by reaching the conclusion that that birth is of itself a matter of considerable weight which the decision-maker ought to hold in the balance, your Lordship is saying that, as a matter of law, it may change the status of the mother and that the --
  112. MR JUSTICE FORBES: I certainly did not think anything I said was to that effect.
  113. MR BROATCH: My Lord, I have made my point.
  114. MR JUSTICE FORBES: I understand.
  115. MR BROATCH: If your Lordship is unimpressed with the point, so be it. But, my Lord, it does seem to me to be of some considerable importance because the authorities are sometimes -- this was not the situation of someone flying in and almost immediately giving birth -- but she was pregnant when she arrived.
  116. MR JUSTICE FORBES: I understand, Mr Broatch, but I thought I had -- it is my view that I have left the matter on the basis that I indicated I was going to in the course of submissions, namely that I regarded the birth of the child as being of significant evidential value on the question of intention to settle, but that I was not going to get involved in what the child's status was or what effect it might have on the status of the mother.
  117. MR BROATCH: My Lord, that is of itself, with respect to your Lordship, a difficult factor to be determinative in the way that your Lordship has indicated, because that there was going to be a birth was an inevitable consequence of her arriving in this country pregnant.
  118. MR JUSTICE FORBES: All of this is in support of a further submission by you that there is something here which I should consider granting leave to appeal.
  119. MR BROATCH: Yes, whether the authority takes up that grant of permission would be up to them.
  120. MR JUSTICE FORBES: I think that is how it is going to be left. I propose to say, so you know what I said, that I shall keep my reasons fairly anodyne, that is to say I do not consider that there is any reasonable prospect of success, and secondly there are no other exceptional reasons for granting permission to appeal. That is what I will put on the form. Have you got your --
  121. MR BERRY: My Lord, if I could just show it to Mr Broatch.
  122. MR JUSTICE FORBES: Thank you.
  123. MR BROATCH: My Lord, I have slightly altered my friend's draft for reasons which may be self-evident. The position is she will have to be moved because she is in Social Services accommodation. She will now be moved to Housing Department accommodation.
  124. MR JUSTICE FORBES: Is there any objection to the form of this order?
  125. MR BROATCH: If your Lordship is against me on making any form of mandatory order, then that --
  126. MR JUSTICE FORBES: I would like to make some form of mandatory order that does not usurp the local authority's duties.
  127. MR BROATCH: Your Lordship is saying that we are to house her until either the fresh decision or the 202 decision, and if the 202 decision comes, then these proceedings -- this all becomes otiose.
  128. MR JUSTICE FORBES: Very well. In that case that seems to me to be a satisfactory form of order and I make the order in those terms. Mr Berry, will you take appropriate steps to draw it up and lodge it with the court, because I have not got an associate. I will initial this order.
  129. MR BROATCH: The order should also say: defendant's application for permission to appeal refused, at some stage.
  130. MR JUSTICE FORBES: Quite right. It simply says: defendant's application for permission to appeal is refused. Thank you both very much.


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