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||Neutral Citation Number:  EWHC 1245 (Admin)
||Case No: CO/173/2014
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
MRS JUSTICE CHEEMA-GRUBB
|| The Queen (On the Application of Mr Roger Plant)
||- and -
||Somerset County Council
- and -
Taunton Deane Borough Council
Mr Alex Offer (instructed by Community Law Partnership) for the Claimant
Mr Andrew Byass (instructed by Somerset County Council) for the First Defendant
Miss Emily Orme (instructed by Taunton Dean Borough Council) for the Second Defendant
Hearing dates: 21st April 2016
HTML VERSION OF JUDGMENT
Crown Copyright ©
MRS JUSTICE CHEEMA-GRUBB:
- The Claimant (C) seeks permanent accommodation from a housing authority. He has exacting demands and wants to live a hermit-like existence.
- He presently occupies a large sound-proofed motor home and a collection of other vehicles which he has placed on land called Otterford B, owned by Somerset County Council. C is and has always been a trespasser and the Council wishes to sell the land. C made a homelessness application to Taunton Deane Borough Council. That Council accepted a housing duty towards him. Somerset County Council, herein known as SCC, is the First Defendant in this claim for judicial review because C wishes to prevent it obtaining an order for possession until Taunton Deane Borough Council provides him with housing which suits his needs. Taunton Deane Borough Council is thus the Second Defendant, hereafter known as TDBC, and C sought a mandatory order requiring it to discharge its housing duty. Such an order was made by Mr Justice Hayden on 4th March 2015 and TDBC has made C a formal offer of accommodation it considers to be suitable for his needs. Despite this, C remains living on SCC's land.
- The case was listed for a final hearing. There were two principal matters to resolve.
1. Whether TDBC should be given permission to contest this claim out of time and to seek revocation of the mandatory order made against it in March 2015.
2. C's challenge to SCC's continuing decision to seek an order for possession in the Taunton County Court of the land upon which he lives. Those proceedings having been stayed pending a decision on this claim. SCC seeks final resolution of the claim despite C's outstanding challenge to the purported discharge of TDBC's statutory duty.
- C is a single man now aged 72 years with a constellation of special medical and social needs. He is registered disabled; he suffers from arthritis and is in receipt of disability living allowance. He has mobility problems; he has glaucoma, chronic fatigue syndrome, multiple food allergies and heightened sensitivity to smells. His medical problems also include hearing loss, tinnitus and hyperacusis (sensitivity to sound). C has Asperger's syndrome resulting in "a triad of impairment": impairment of social function, social interaction, and flexibility of thought. He has restricted interests. He has a very high functioning intellect and has skills acquired during a history of service in the RAF.
- He experiences sensory overload if exposed to too much noise or too much smell, or both, and his Asperger's syndrome means that he has a very high dependency on his dogs for social and emotional support as well as a need for intellectual stimulation from a mobile engineering workshop he has set up alongside his motor-home.
- C says that he needs a quiet and undisturbed home environment where he can keep his dogs and engineering workshop. His medical problems are becoming more severe over time. For some years he has expressed profound frustration at his inability to find accommodation which will allow him an acceptable quality of life and meet his medical needs. Psychiatric and other professionals recognise a serious risk of suicide if C is not accommodated suitably. Dr Christie in a recent psychiatric report puts the possibility that C will carry out his expressed intention to kill himself as 'more likely than not'. C is serious, his threat is not due to mental health issues and is not susceptible to treatment.
- C has been searching for a suitably remote site which will meet his needs and for which he could seek planning permission, since 1992. Planning permission at one site he had obtained, an isolated farm in Somerset, was refused. At one point, the date not being clear, South Somerset District Council determined a homeless application he made and offered him a property which he considered to be unsuitable. In December 2012 C moved to the land owned by SCC.
- The more recent history is set out below:
a) 16th January 2013 SCC issued a notice to vacate to C requiring him to leave its land by noon on 21st January 2013.
b) 18th January 2013 C made an application to join TBDC's Housing waiting list in which he included the following statement describing his health issues
"I have severe tinnitus and damaged hearing caused by my time in the RAF this causes me severe stress if I am near ANY other source of noise. I am under the care of the Asperger's specialist service CTN Kay Griffin
. I have poor mobility and get full rate DLA. I am not able to tolerate noises and odours from natural domestic sources as they cause me severe stress.
I have to find somewhere away from "normal" domestic noises and odours including radios TV's yappy dogs children playing lawnmowers air fresheners smells bonfires etc. These all cause me severe stress by overloading my senses. I have been trying since 1991 to find such a suitable living situation. All of my efforts have been overridden by LA- housing and planning officials".
c) 7th July 2013 Proceedings for trespass were issued by SCC in Taunton County Court. The claim for possession was adjourned on a number of occasions by agreement (see below) and remains stayed pending the conclusion of these proceedings against SCC.
d) 2nd August 2013 C went to TDBC's Housing Options Department and stated that he was about to become homeless because SCC had issued repossession proceedings. He was offered interim accommodation pursuant to s.188 (1) Housing Act 1996 while his housing application was being investigated but he preferred to stay where he was.
e) 23rd August 2013 was to be the initial hearing of the claim for possession in Taunton County Court but C was unwell and the hearing was adjourned by agreement to 24th October 2013.
f) 3nd October 2013 TDBC issued a decision on C's homelessness application and accepted that he was unintentionally homeless, eligible for assistance and in priority need. As a consequence the Taunton County Court proceedings were adjourned to be listed on 13th December 2013.
g) 10th December 2013 A Pre-Action protocol letter was sent to SCC, which responded on 12th December 2013.
h) 13th December 2013 the possession proceedings were stayed pending resolution of this claim.
i) 20th December 2013 A Pre Action Protocol letter was sent to TDBC requiring a response by 4pm Thursday 3rd January 2014. It will be apparent that the time allowed for a response was extremely short and over the holiday period. However TDBC responded by letter dated 24th December 2013 enclosing C's housing file, which had been requested.
j) 1st January 2014 C issued this claim against SCC and TDBC. It will be noted that this was no more than three months after TDBC had accepted a housing duty to C. Form N461 states that C sought the following remedies:
a. A quashing order in respect of SCC's decision to seek and obtain, and/or to continue to seek and obtain, possession of the land (at Otterford B); and
b. A declaration that it would not be lawful for SCC to seek to obtain and/or to enforce any possession order obtained in respect of the land unless and until TDBC provided C with suitable alternative accommodation in satisfaction of their duty under Part VII Housing Act 1996; and/or
c. A mandatory order requiring TDBC to provide C with suitable alternative accommodation in satisfaction of their duty under Part VII Housing Act 1996.
k) 9th January 2014 C wrote to TDBC enclosing the grounds of claim in draft form with supporting documentation to follow.
l) 26th February 2014 An order was made by an ACO lawyer pursuant to delegated powers granting an extension of time for SCC to file and serve an acknowledgment of service to 3rd March 2014. This order was made upon application from SCC.
m) 3rd March 2014 SCC served an Acknowledgment of Service and summary grounds of Defence.
n) 4th April 2014 No Acknowledgment of Service or Defence were filed by TDBC. Mr Ben Emerson QC sitting as a Deputy High Court Judge granted permission for Judicial Review observing
"The Claimant, who is statutorily homeless, has an arguable case against the first Defendant that
(a) The decision to pursue possession proceedings is flawed on the ground that in the Claimant's case, having regard to his age and state of health, and having regard to the arguable failure of the second Defendant to discharge its statutory duty to re-house the Claimant, there are exceptional circumstances justifying the submission that eviction would be disproportionate;
(b) That the decision to pursue possessions proceedings is a continuing decision such that the claim is not to be regarded as out of time and/or the court should, in its discretion, extend time; and
(c) That the present claim is properly dealt with jointly with the claim against the second Defendant since they are clearly interlinked.
The second Defendant has accepted that it is under a duty to provide the Claimant with accommodation pursuant to Part VII of the 1996 Act, but has so far failed to discharge that duty, and has filed no acknowledgment of service or summary grounds to explain its position."
By way of case management directions both Defendants were directed to file and serve detailed grounds for contesting the claim and any written evidence within 35 days of service of the order and a Defendant wishing to file and serve a skeleton argument had to do so not less than 14 days before the date of the hearing of the Judicial Review.
o) 28th April 2014 Mr Roy Pinney, Legal Services Manager of TDBC emailed C's solicitor's in the following terms
"Further to your letters dated 28th March and April I can confirm that Borough Council is not contesting your client's claim. I apologise for my delay in providing this information"
It is to be noted that this concession is entirely unconditional and is provided by a Legal Services Manager.
p) 13th May 2014 The C's solicitor wrote to TDBC in the following terms
"We write further to Mr Pinney's email of 28th April 2014. We note that the Council is not contesting our client's above claim. We therefore assume you are happy for an order to be made as outlined in our client's Judicial Review claim. We would be grateful for your clarification on this matter and would also ask for confirmation as to how the council is to discharge its duty owed to our client."
q) 30th October 2014 C's solicitor wrote again to TDBC in the following terms
note that we have not received a response. We enclose herewith copy (letter dated 13th May 2014) and look forward to hearing from you as soon as possible. Please confirm what steps have been taken to provide our client with suitable accommodation considering that the Council is not contesting our client's claim."
r) 31st December 2014 SCC wrote to Taunton County Court indicating that the claim was to be heard on 4th March 2015 and in the circumstances seeking the County Court's direction that the resolution of its possession action should be delayed until the middle of May 2015.
s) 22nd January 2015 C's solicitor wrote to TDBC enclosing a copy of C's solicitor's draft second witness statement and exhibits. The statement provided an update since the issue of proceedings in January 2014. C sought agreement that the statement be admitted.
t) 4th March 2015 Upon the basis of an agreement between C and SCC that SCC would not pursue an order of possession against C until final determination of the claim and no objection from TDBC, Mr Justice Hayden made an order in the following terms:
"UPON hearing counsel for the Claimant and counsel for the first Defendant and
UPON the second Defendant neither attending nor being represented and
UPON the first Defendant agreeing not to seek to obtain or to enforce any order for possession in respect of the land known as Otterford B in issue in this claim until this claim is finally determined or until further order and
UPON the Claimant agreeing to use reasonable endeavours to engage with the second Defendant in respect of the second Defendant's discharge of its statutory duty to him under Section 195 of the Housing Act 1996
IT IS ORDERED THAT:
1. The second Defendant shall discharge its statutory duty to the Claimant under Section 195 of the Housing Act 1996 by no later than 4pm on 15th April 2015.
2. The second Defendant shall pay the Claimant's reasonable costs to be subject to detailed assessment if not agreed.
3. The claim against the first Defendant is stayed until further order. The Claimant and the first Defendant have liberty to apply to restore the claim any such application not to be made before 4pm on 6th May 2015"
Section 195 of the Housing Act 1996 is headed 'Duties in case of threatened homelessness' and provides:
(1)This section applies where the local housing authority are satisfied that an applicant is threatened with homelessness and is eligible for assistance.
(2)If the authority
(a) are satisfied that he has a priority need, and
(b) are not satisfied that he became threatened with homelessness intentionally,
They shall take reasonable steps to secure that accommodation does not cease to be available for his occupation.
C had not sought an order under s.195 but s.193 Housing Act 1996, which is headed 'Duty to persons with priority need who are not homeless intentionally'. It provides:
(1) This section applies where the local housing authority are satisfied that an applicant is homeless, eligible for assistance and has a priority need, and are not satisfied that he became homeless intentionally.
(2)Unless the authority refer the application to another local housing authority (see section 198), they shall secure that accommodation is available for occupation by the applicant.
(5)The local housing authority shall cease to be subject to the duty under this section if the applicant, having been informed by the authority of the possible consequence of refusal
.refuses an offer of accommodation which the authority are satisfied is suitable for him and the authority notify him that they regard themselves as having discharged their duty under this section.
There is no duty to house an applicant once the housing authority has discharged its housing duty even if the applicant seeks a statutory review or an appeal to the County Court pursuant to s.204 Housing Act 1996.
C accepts that once TDBC has discharged its statutory duty to him, whether or not he is satisfied with the property, the claim against SCC will have to be withdrawn. He accepts that the legitimate purpose of the litigation is to obtain an offer of objectively suitable property from TDBC although it has been initiated because of the on-going actions of SCC which presents a continuing threat to C's possession of a home at Otterford B.
u) TDBC applied seeking an extension of the period specified in paragraph 1 of the order of Hayden J. The extension sought was until 15th June 2015. C objected to the extension but it was granted to 13th May 2015.
v) 29th April 2015 TDBC offered C accommodation under Part 6 of the Housing Act 1996. The accommodation was at 3 Ladyacre Staple, Fitzpaine in Taunton, Somerset: a one bedroom bungalow, "the Ladyacre property". TDBC notified him that it regarded itself as having satisfied its housing duty to him.
w) 15th May 2015 C refused the offer of accommodation and sought a review available to him under the Housing Act 1996. C subsequently sent further medical evidence in support of the application for a review and a psychiatrist was instructed to provide a report.
x) 24th June Dr Christie, a psychiatrist saw C and provided a report which was sent to TDBC on 17th July 2015.
y) 28th July 2015 TDBC indicated a review was being carried out.
z) 14th September 2015 the independent reviewer provided a "minded to" letter seeking further oral or written representations by 21st September. This was to alert C to the likelihood that the review would uphold TDBC's offer as that of a suitable property. This period was extended at the request of C.
aa) 12th November 2015 the Court having sought to list the claim in respect of SCC which had been stayed in March all three parties agreed a consent order seeking to delay a hearing fixed by the Court for 19th November. The Court did not approve the proposed consent order.
bb) 19th November 2015 Having heard from counsel for SCC and C (TDBC choosing yet again not to attend and to make no representations) Miss Amanda Yip QC, sitting as a Deputy High Court Judge made an order in the following terms:
4. The first Defendant's application to restore the Claimant's claim against the first Defendant is Granted;
5. The Claimant has permission to file and serve the evidence by 4pm on 10th December if so advised;
6. The first Defendant has permission to file and serve further evidence by 4pm on 7th January 2016 if so advised;
7. The Claimant shall file and serve a supplementary trial bundle by 4pm 14th January 2016;
8. The Claimant and first Defendant to file and serve skeleton arguments by 4pm on 28th January 2016;
9. The Claimant to file and serve an agreed bundle of authorities no later than three days before the trial;
10. The Claimant's claim against the first Defendant to be listed for a trial with a time estimate of one day on the first available date after 4th February 2016;
The order was predicated upon the observation that TDBC has "failed to comply with paragraph 2 of the order of Hayden J of 13th May 2015 and wishing to impress upon the second Defendant the need to so comply urgently".
cc) 23rd November 2015 The independent statutory housing review upheld the offer of the Ladyacre property and concluded that the full housing duty on TDBC has been discharged. This decision was to be the subject of a statutory appeal in the County Court which was settled by consent once it became apparent that the reviewer had failed to take into account the psychiatric report on C from Dr Christie.
dd) 16th March 2016 TDBC informed C that it had revised its approach to this judicial review and intended to seek permission to contest the claim. On the same date it informed C that a fresh review of the decision to offer him the Ladyacre property in discharge of its statutory duty would be undertaken. The current independent statutory review is due to be completed by the end of May 2016.
ee) 8th April 2016 TDBC lodged detailed grounds in opposition and witness statements.
ff) 13th April 2016 TDBC's skeleton argument was provided to the court and emailed to counsel for C.
gg) 18th April 2016 A skeleton argument in response to the applications now made by TDBC was lodged by C.
- The second Defendant did not engage in any meaningful way with the claim until more than two years after it was issued. Indeed, it expressly stated to C's solicitors that it would not be contesting the claim. It now seeks to do so over a year after a mandatory order was made against it. In the meantime TDBC has sought to satisfy that order and on one occasion sought an extension to the time-limit provided for in the order. At no time prior to March 2016 did TDBC seek to challenge, revoke, discharge, amend or appeal the order. Against that background TDBC seeks revocation of the order made by Hayden J together with permission to oppose C's application for a mandatory injunction pursuant to his application lodged in January 2014. The second Defendant recognises it faces a considerable hurdle due to its failure to contest the claim until now and its comprehensive failure to comply with the Civil Procedure Rules.
- By CPR 54.9 where an Acknowledgment of Service is not served and other directions of the court regarding filing of grounds for contesting a judicial review claim are not complied with, the party concerned may not take part in the substantive hearing. In particular CPR 54.14 provides that a party wishing to contest a claim must file and serve detailed grounds for contesting the claim and any written evidence within 35 days after the order giving permission to proceed with a judicial review. Where a party serves evidence out of time CPR 54.16 states the court has the power to grant permission to rely on evidence served out of time and frequently permission is given where the parties wish to update the court post service of their initial evidence.
Any application to obtain relief from sanctions is considered by reference to the guidance given in Denton v TH White Ltd  EWCA Civ 906  1 WLR 3926. A tri-partite test is to be applied.
a) What is the seriousness or significance of the failure to comply with the rule Practice Direction or Court Order?
b) Why did that failure occur?
c) What are all the circumstances of the case so that the application for relief can be dealt with justly?
- TDBC has served a form N462 and seeks permission to rely on it. An Application Notice N244 states that TDBC seeks revocation of Hayden J's order under CPR 3.1(7) and/or 39.3 and/or 3.9. It also seeks permission under CPR 54.17 to file evidence and make representations at the hearing of the claim. The relevant parts of these Civil Procedure Rules are:
(7) A power of the court under these Rules to make an order includes a power to vary or revoke the order.
(1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need
(a) for litigation to be conducted efficiently and at proportionate cost; and
(b) to enforce compliance with rules, practice directions and orders.
(2) An application for relief must be supported by evidence.
(1) The court may proceed with a trial in the absence of a party but
(a) if no party attends the trial, it may strike out(GL) the whole of the proceedings;
(b) if the claimant does not attend, it may strike out his claim and any defence to counterclaim; and
(c) if a defendant does not attend, it may strike out his defence or counterclaim (or both).
(2) Where the court strikes out proceedings, or any part of them, under this rule, it may subsequently restore the proceedings, or that part.
(3) Where a party does not attend and the court gives judgment or makes an order against him, the party who failed to attend may apply for the judgment or order to be set aside.
(4) An application under paragraph (2) or paragraph (3) must be supported by evidence.
(5) Where an application is made under paragraph (2) or (3) by a party who failed to attend the trial, the court may grant the application only if the applicant
(a) acted promptly when he found out that the court had exercised its power to strike out or to enter judgment or make an order against him;
(b) had a good reason for not attending the trial; and
(c) has a reasonable prospect of success at the trial.
(1) Any person may apply for permission
(a) to file evidence; or
(b) make representations at the hearing of the judicial review.
(2) An application under paragraph (1) should be made promptly.
- Miss Orme's submissions, on behalf of TDBC, can be encapsulated in this way:
a) The chronology of TDBC's involvement in the claim speaks for itself and cannot be explained away. TDBC did not expend resources contesting the claim, believing that it was principally aimed at SCC and that it was likely to be compromised. TDBC was already seeking to discharge its duty to C. More recently, having obtained external legal advice its view of the claim has changed.
b) Although TDBC is in substantial breach of the rules it seeks relief from sanction. The failure to comply with the rules and directions as to filing and serving an acknowledgment of service etc are serious and significant. Nonetheless the justice of the case requires permission for relief to be given because:
1. There is a challenge to the jurisdiction of the court to make the order made by Mr Justice Haydon on 4th March 2015. The order is ambiguous (referring to s.195 rather than s.193) and the court may have proceeded under a misapprehension of the relevant housing law.
2. The court was and is without important relevant factual information relating to the claim against TDBC. The court may have been misled when it exercised its jurisdiction to make the order it did because it was not told that TDBC had been actively seeking to discharge its homelessness duty towards the claimant and the Claimant had stated clearly his intention to remain at the site where he is rather than move. Rather the court must have proceeded on the basis that TDBC had not made any progress towards discharging its housing duty.
c) In consideration of the Denton v White principles the third stage of the test is significant in this case and justice requires the applications to be granted.
d) The order of Mr Justice Hayden should be set aside and C should be awarded no remedy because he has an alternative remedy, namely a statutory appeal pursuant to the Housing Act 1996 in the County Court, if the current independent review upholds TDBC's offer of the Ladyacre property as discharging TDBC's housing duty to C.
Decision on TDBC's applications
- The tests in Denton v White are applicable to an application for relief from sanctions and also relevant to an application to set aside a judgment or order under CPR Part 39.3. The first questions that arise, however, in dealing with an application to set aside an order under CPR Part 39.3 are the express requirements of that rule, namely whether a prompt application to set aside has been made, whether the party seeking the set aside had a good reason for failing to attend and whether he has a reasonable prospect of success in the action. Since the application is one for relief from sanctions, the Denton v White tests then come into play. The first test as to whether there was a serious or significant breach applies, this time, not to the delay after the order was made, but to the default in serving an acknowledgement or grounds of defence and agreeing not to contest the claim which gave rise to the order in the first place. The second and third tests then follow, but the question of promptness in making the application arises both in considering the requirements of CPR Part 39.3(5) (a) and in considering all the circumstances under the third Denton v White stage.
- There are competing considerations such as finality of Orders made in uncontested cases and the desirability of allowing the dilatory but possibly justifiable opposition of a public body to a claim against it to be heard. It is plain though, that TDBC cannot satisfy the predicate requirements of CPR 39.3. This was not a prompt application to set aside the order and there is no good explanation for the lateness of defence to C's claim especially when TDBC had conceded it earlier in the proceedings: a variation in legal advice cannot be enough without some culpable error on the part of the first adviser and in this case TDBC does not suggest any such thing. Furthermore the prospects of success in the claim are negligible in that TDBC concedes that it had a housing duty to C and claims it has already, or at least has tried already, to discharge that duty.
- It is also plain that the applicant TDBC cannot fully satisfy either stage 1 'significant breach' or stage 2 'good reason' of the Denton v White test. Failure to pass those tests is not fatal to an application. Accordingly, applying the guidance at paragraphs 31-45 in Denton, stage 3 of the test is critical to the outcome of these applications. I have to consider all of the circumstances of the case so as to enable the court to deal justly with the application. The underlying claim was brought by C against SCC as a response to the imminent prospect of being evicted from Otterford B and (no doubt) to put pressure on TDBC to discharge its admitted duty. TDBC's role in the case was as a potential provider of suitable accommodation and as security in the sense that C sought that SCC be prohibited from proceeding with its attempt to acquire possession of its land until C had been provided with an offer of suitable accommodation by TDBC i.e. until the second defendant had discharged its statutory duty even if C did not accept the accommodation offered. Ostensibly this remains C's position.
- In practical terms there may have been some justification for TDBC's stance towards C's claim. Of course that does not mean that the application for relief from sanctions must automatically succeed nor does the failure of the second Defendant to fully satisfy stages 1 and 2 mean that it must automatically fail. Rather this is precisely the sort of case in which the judge must consider all of the circumstances of the case so as to deal justly with the application including the need for litigation to be conducted efficiently and at a proportionate cost and the need to enforce compliance with rules practice directions and court orders.
- It has taken until about a month before this hearing was fixed to take place for TDBC to wake up to its position and express its wish to be heard. It would appear that until that time whilst TDBC made little effort to engage with the court or those representing C in respect of this claim, it engaged in correspondence and communication concerning the underlying homelessness duty and C's situation.
- It is plain that the consequences of granting the second Defendant's applications would not be minimal. It will affect the way that the Claimant has to deal with his case and it will mean that the length of the hearing may be extended as it already has been by the hearing of these preliminary matters. I have to consider whether there is arguably merit in the points that the second Defendant seeks to rely upon. If they are wholly unmeritorious then of course it would be just to refuse in these circumstances the applications that it makes.
- Was the making of a mandatory order by Hayden J out-with the jurisdiction of the court? The first argument is that because the Order refers to TDBC's housing duty pursuant to s.195 Housing Act 1996 rather than a duty under s.193 as had been anticipated by TDBC the order is bad for ambiguity or wrong in law. I reject that argument. Counsel informed the court that the Order was sought by agreement but Hayden J changed the section of the Housing Act to be included in the Order, perhaps because C was not at that point actually homeless but certainly under threat of homelessness. Once the Order was sealed and sent to the parties if it had considered there to be any ambiguity TDBC could have asked the court to clarify the order by amendment or appeal. In fact TDBC continued to take steps to discharge the housing duty it owed. TDBC and all other parties knew exactly which duty TDBC had accepted towards C.
- The second argument is that that the judge may have been misled as to the factual circumstances before he made the Order. It is clear that there was no substantive hearing, the Order was sought by consent and there was little discussion let alone argument at the hearing. SCC was content for the claim against it to be stayed as it anticipated that progress was being made towards securing an offer of suitable housing for C, as indeed it was. The proposed evidence of TDBC's witness, Rachael Brown sets out TDBC's dealings with C in greater detail than the statements served on behalf of C. Miss Orme suggested that the Order may not have been made or at least not taken a mandatory form, if the full picture had been placed before the Judge. The inevitable rejoinder is that TDBC had the opportunity to challenge the claim and the order sought in advance of the hearing and chose not to take it. Having read Miss Brown's statement in detail I am not persuaded that there is anything within it which would have materially altered the position before Hayden J in March 2015.
- The significant additional matters set out in the statement can be summarised in this way. On 2nd August 2013 C attended TDBC's Housing Options Department and stated he was about to become homeless because the SCC had issued possessions proceedings in respect of his occupation of the land at Otterford B. C stated that he wanted to live in an isolated rural property with no immediate neighbours, with his dogs and able to stay occupied with the tools and work materials he had in his trailers. He was offered interim accommodation under Section 188 (1) Housing Act 1996 while his homelessness application was being investigated. He refused indicating that he preferred to stay where he was. A decision was made on 3rd October 2013 that TDBC owed C a housing duty under s.193 Housing Act 1996 because he was threatened with homelessness, was not intentionally homeless and that he had a priority need but even before that decision Miss Brown had been in touch with C about three housing association bungalows in rural village locations which she believed might meet his needs. C rejected them and did not consider that villages were quieter than towns because (for example) churches may be nearby.
- On 11th October 2013 TDBC's Housing Options Team notified C that although he had not responded to a renewal application in his circumstances his housing application had been renewed for him. C made it clear that he preferred to stay at Otterford B rather than move anywhere else. A few days later, on 15th October Miss Brown wrote to C's solicitor concerning the work being done to locate a suitable rural property for him. The same day she contacted C directly concerning a property for rent in the private sector. This property appeared suitable to her because it consisted of an annex with land and stables also potentially available. C went to view the property within the following week but he told Miss Brown that the agent would not accept dogs although that was contrary to what the agent had told her. When she pursued this inconsistency and informed C about the efforts she was making he informed her that he wouldn't take the property because it wasn't remote enough: it was in a row of annexes, which was a different reason for rejecting the property than the one he had put forward initially. Miss Brown became concerned that C would find no property suitable unless it were Otterford B itself. C admitted to Miss Brown that no property would be ideal but the site at Otterford B was suitable for him and he would like to advocate his case with the planning department at Somerset.
- On 22nd January 2014 TDBC placed bids on two properties on behalf of C as he had failed to bid on any properties himself. The two properties in question were at Mark and Cheddar. TDBC contacted C's support worker before pursuing these properties further. Mr Webster a care co-ordinator told TDBC that there was then no support plan currently in place for C but Mr Webster did agree to attend a viewing of the properties with him. However when the landlord contacted C to discuss potential property viewing he refused the offer on the basis that the property was not sufficiently isolated.
- Between 21st February and 27th February three bids were placed for C, on another property at Gurney Slade and on properties in Carhampton and Bishops Lydeard.
- On 12th March 2014, a bid having been placed on another property managed by a housing association in Timberscombe, a message was left for C to arrange a viewing but he contacted TDBC the next day saying that the property was not suitable and refusing to attend an interview. From the file note for that conversation it can be seen that C was still telling TDBC he wanted to remain at Otterford B. He was recorded as saying "even a property as rural as Timberscombe would not be suitable." Timberscombe has a population of only 402 people and is situated in Exmoor National Park.
- On 28th April 2014, as already noted, TDBC indicated that it would not contest C's application for Judicial Review. This was, according to Miss Brown, for two reasons. First of all SCC was the main focus of the proceedings, and secondly TDBC had accepted that it had a duty to C but in view of his very specific requirements it was for the time being in difficulties in identifying a suitable property for offer in final discharge of the duty. This was an ongoing process and in recognition of the fact that no final offer had been made in order to discharge the duty TDBC decided it was appropriate not to contest the claim.
- On 31st March 2015, following the High Court order Miss Brown contacted the website Rightmove in order to try and locate a private rented sector property suitable for C. She drafted an advertisement sent to over 200 private lettings agents in the area. No property was identified through this route.
- On 15th April 2015 Miss Brown returned from maternity leave and spoke to C who told her that he no longer wanted bricks and mortar accommodation but rather land on which to keep his motor home, workshops, vehicles and other belongings. This expressed desire maybe a key to C's actual wishes. At this time C indicated that he wished to resolve his housing situation without taking any further legal action. The following day he contacted Miss Brown to say that he wished to move from Otterford B as soon as possible and made allegations against a neighbour that bricks had been thrown at his home. A week later Miss Brown placed a bid on a property at 3 Ladyacre, Staple, Fitzpaine, Taunton, Somerset. This bid was made on the basis she considered it met C's medical and other needs. He was offered the property on 27th April as a final offer of accommodation to discharge the Defendant's duty under Section 193(7) of the 1996 Act. C was contacted by the letting team manager and stated immediately (without having viewed it) that the property was not suitable. However he agreed to attend a meeting to discuss the nature of the property and explain why it was not suitable, but he later refused to attend such a meeting.
- On 6th May 2015 TDBC sent C a letter dated 27th April 2015 formally offering the property and indicating that this was considered a final offer of accommodation deemed to discharge the Section 195 duty as per the order of the High Court.
- A request for a review of the suitability of the Ladyacre property was received from C's solicitor on 18th May. The review, pursuant of Section 202 Housing Act 1996, took place by a company called Housing Reviews, independent of TDBC but paid by it to carry out the review in accordance with Article 3, Local Authorities (Contracting out of Allocation of Housing and Homelessness Functions) Order 1996/3205.
- The review upheld the offer of Ladyacre property on 23rd November 2015 and concluded that the full housing duty had been discharged. Thereafter, as already noted, C issued an appeal which had to be settled by consent so that a further review could be carried out which is currently in train. In summary a total of 12 properties have been considered for or offered to C between 6th September 2013 and 22nd April 2015.
- In all the circumstances it seems to me that justice does not require me to grant any of the applications made by TDBC. This public authority has conducted itself in a pragmatic way since the instigation of the application for judicial review against it and it continues to do so. In terms of this claim itself it failed to acknowledge service of C's claim. This was only the first of its breaches of the Civil Procedure Rules. It is plain that the underlying reason for this approach was that TDBC did not intend to contest the claim. Submissions which could have been made in favour of TDBC's position such as the short period of time between it accepting a housing duty and issuing of the claim for judicial review, all the efforts made by TDBC to assist C amidst the particular difficulties that his case posed, were not made.
- TDBC's proposed contest to C's claim is now academic. According to the pellucid terms of section 193 Housing Act 1996 TDBC has discharged its duty by making an offer of a property which it considers suitable. If on review or on appeal it is found not to have offered such a property the duty may well revive. At present TDBC have satisfied the order made by Hayden J. Relief from sanction is refused and the application to set aside the order of Hayden J is refused.
C's challenge to SCC's continuing decision to seek an order for possession in the Taunton County Court
- A preliminary point arose at the hearing although it had not been foreshadowed in written arguments: should this application be adjourned until the outcome of the statutory review? SCC argued that it should be dealt with now because C has and always has had an alternative remedy to judicial review, namely reliance on TDBC to discharge the housing duty it had accepted in 2013. The current claim is a drain on its resources and should be resolved. C argued that the stay should remain and a short further delay would make the issues clearer for the court. I decided to proceed to hear the matter. This claim is getting stale and it is in the interests of all parties for a decision to be made
Is C's claim out of time?
- The first substantive argument raised by Mr Byass, for SCC was that C's claim should be dismissed as being out of time because it was not brought promptly after SCC began its action for possession and not within the three month time-limit for commencing a judicial review claim CPR 54.5(1). He withdrew this argument when his attention was drawn, by Miss Orme, to authorities which established that, where such a decision to commence possession proceedings has been taken and there is evidence available which was not available at the time the proceedings started, as in this case, the decision to pursue those proceedings is a continuing one: Taylor v Central Bedfordshire Council  EWCA Civ 613,  1 WLR 446 para. 39.
Should the claim be dismissed because there is an alternative remedy?
- The second argument was, in summary, that the claim should be dismissed because each of the grounds for claim relied upon by C could be urged on his behalf in the County Court. On the other hand C argued that an important part of the claim was the application seeking a mandatory order against TDBC which could only have been obtained in the High Court. It is undesirable for there to be concurrent proceedings in the High Court and the County Court and so C's action is justifiable. C relies on the observation made by the Deputy Judge supporting its position. In response SCC points out that C now has his mandatory order against TDBC and he should accordingly return to the County Court. There is no exceptional reason to pursue the application. In particular there are potential evidential issues which this court is ill-equipped to deal with, although it had be observed that no such issue had been raised with any evidence relied on for this hearing. Finally, SCC relied on the concession made by C that once it is confirmed that the statutory duty upon TDBC has been discharged, even if not to the satisfaction of C, then C would withdraw his claim against SCC.
- Judicial review should be a last resort. It is axiomatic that for a judicial review to be launched alternative remedies must be considered and normally exhausted if they would be adequate to resolve the complaint. It is undesirable to have parallel proceedings. In this case the County Court proceedings have been delayed for more than two years awaiting the outcome of this claim for judicial review and it is agreed that C would be entitled to make his arguments about unlawful interference with his rights in that court. This is the reason why SCC sought to have C's claim against it reinstated in November 2015. However the jurisdiction of the High Court is not ousted by the existence of an alternative remedy. The fact that the claim was made against TDBC at the same time as SCC and C applied for a mandatory order against TDBC as a pre-requisite for the court allowing SCC to proceed with its possession action made it convenient for the same court to hear both claims and explains why C has been granted permission to bring his claim. In the circumstances of this unusual case it would be unnecessarily duplicative of court time and resources to remit this case to the County Court after this court has heard full argument. This decision should not be received as encouragement for anyone in a similar situation to take the approach C has taken.
Does pursuing a possession order in the County Court amount to a disproportionate, irrational and unlawful interference with C's rights?
- SCC is the legal owner of the land at Otterford B. C has always been and remains a trespasser on the land. SCC is a public authority within the meaning of s.6 Human Rights Act 1998 and it is unlawful for a public authority to act in a way which is incompatible with a Convention right, in this case Article 8, C's right to a private life and a home.
- Counsel for C clarified that he now seeks an order for a stay on the possession proceedings in the County Court until TDBC has discharged its housing duty (satisfactorily to C) or a declaration that the proceedings for possession should not be further pursued until TDBC has discharged its duty (satisfactorily to C). It is possible to discern arguable merits in the application while TDBC had a live housing duty to this particular C which meant that, in the round, removing him by way of a possession order, before TDBC had offered him any property, may have been unduly harsh or disproportionate due to his particular medical and other difficulties. The question arising is whether this is misconceived in the present circumstances.
- There is no dispute that C is a vulnerable individual. In the leading authority of Manchester CC v Pinnock  UKSC 45,  2 AC 104, Lord Neuberger considered the right of individuals facing possession orders to argue proportionality points and observed at paragraph 64,
"The suggestions put forward on behalf of the Equality and Human Rights Commission that proportionality is more likely to be a relevant issue "in respect of occupants who are vulnerable as a result of mental illness, physical or learning disability, poor health or frailty", and that "the issue may also require the local authority to explain why they are not securing alternative accommodation in such cases" seems to us well made."
- C's trespass interferes with the right of SCC to deal legitimately with the land at Otterford B e.g. to sell it in order for it to be used to house a number of other families, as is currently proposed. In Pinnock the Supreme Court confirmed that in the context of public authority owned land, if a residential occupier has no contractual or statutory protection, there is a very strong likelihood that an order for possession will be proportionate. Lord Neuberger expressed the test to be applied in such cases,
"The question is always whether the eviction is a proportionate means of achieving a legitimate aim."
- Article 8 ECHR affords the right to respect for private and family life and a home. I take into account all the arguments made on C's behalf and in particular recognise that his requirements are such that very few locations and situations will meet them. The essence of C's claim is that, given it is not disputed that the land at Otterford B is presently his home, seeking possession of it so it can be sold amounts to unlawful i.e. disproportionate interference with his rights. The courts have long resolved the question of whether Article 8 rights can be raised in defence to a possession order sought by a local authority in the County Court: they can be. Thurrock BC v West  EWCA Civ 1435,  HLR 5 is such a case where the relevant principles are set out. It is not necessary to refer to them in any detail because I am quite satisfied, as will become clear, that this claim cannot be sustained now that TDBC has discharged its housing duty. It is axiomatic that even where the Article 8 rights apply it cannot give C an unconditional right to remain on the land.
- C's vulnerabilities are multiple, to repeat: he is over 70 years of age, registered disabled, in receipt of disability living allowance, suffering from glaucoma, chronic fatigue syndrome, food allergies, tinnitus, hyperacusis, Asperger's Syndrome, heightened sensitivity to smells, is dependent on his dogs for company and emotional support and requires an isolated home. Furthermore, he has expressed fears of being unable to cope with a normal sensory environment so that if threatened with eviction or evicted without the offer of suitable alternative accommodation, there is a real risk that he will commit suicide. C does not have to satisfy any sort of 'exceptionality' test before a claim based on disproportionality can succeed in a possession case but in any event his case could be described as at least unusual.
- The fact that the land is to be sold may also be relevant to the proportionality argument as against SCC. The land is not needed directly for public use but SCC wants vacant possession in order to sell to TDBC which is, as it happens, currently 'using' it to satisfy their housing duty to him by providing him temporary housing. All these matters went, properly, to the claim as initially formulated. However, the situation is now entirely different. TDBC bears no duty to provide accommodation to C pending the outcome of his review and potentially, a statutory appeal. There may be a power to do so but if that power is called upon and not exercised that decision may be subject to review itself. That is not the current position. In any event the public authority that would be a defendant in that claim is TDBC, not SCC. SCC does not owe any duty to C to provide a home.
- It will be plain to all that the court's duty is to apply the law to the facts of this case putting to one side the natural sympathy that is felt for C in his individual circumstances which are set out in the papers and were cogently developed before me. I am fully aware of his stated intention to commit suicide if this decision does not go in his favour. Set against that is the fact that the support structure provided by mental health services is not presently required by him although it has not been suggested that if his situation deteriorates he will be unable to seek further support again. The court cannot be compelled to act in a particular way by reason of a threat of suicide.
- I am quite satisfied that an action to seek recovery of possession of the land occupied by C as a trespasser for over three years now is proportionate and that SCC is not in breach of its public law duties or C's convention rights by pursuing its possession order now. [That is not to say that when initially launched the proceedings against SCC in the County Court were necessarily proportionate. At that time TDBC had not accepted a housing duty towards C. Equally, at that time not all the evidence supporting C's particular medical and other issues had been provided to SCC.] During the years that this claim has been before the court the circumstances have moved on, the claim as originally formulated against SCC is academic and, as I have already stated, the effect of TDBC firstly accepting, and then discharging a housing duty towards C makes a fundamental difference to the proportionality arguments.
- In light of his disabilities C also relied on the Equality Act 2010, although these subsidiary submissions were not fully developed. Where social housing is involved, the aim of enabling a local authority to comply with its statutory housing duties might have to give way to the equality rights of a particular disabled person. Summary proceedings for possession may not be appropriate: Jonathan Akerman-Livingstone v Aster Communities Led (Formerly Flourish Homes Ltd) (2014)  UKSC 15;  AC 1399. In this case, given the discharge of its housing duty by TDBC and the proposed use of the land to provide temporary accommodation for travellers (in accordance with planning permission attached to it), I cannot see that C has an argument under the Equality Act 2010.+-
- A further submission made on behalf of C was that the actions of SCC in seeking to obtain possession are irrational. In essence the argument was that SCC had not paid proper regard to the degree of C's vulnerability especially in light of the evidence from the psychiatrist, Dr Christie. I reject these arguments. Although it is clear that the information now available to SCC is far greater in quantity and depth than when it began possession proceedings, this court is not restricted to assessing the situation at a past moment in time. This is especially so when the proceedings in the County Court have been stayed pending the resolution of this claim. There is no irrationality identifiable in the approach taken by SCC.
- Finally, C's home at Otterford B has always been precarious. His occupation has been in breach of planning laws as well as trespass. He has been aware of the action proposed against him from a few weeks into his occupation when SCC's officers challenged it. C declared that he would not leave the site voluntarily. SCC obtained information from C's doctor, his social worker, community psychiatric nurse and Somerset District Council's housing department. It is worth noting, as SCC's witness Mr Ablart points out, Somerset District Council's offer of property to C which he refused before he ever entered SCC's land, was considered by the District Council to have discharged its housing duty to C. It appears that C did not challenge that conclusion.
- In all the circumstances it cannot be said that C has acted reasonably in entering and remaining on Otterford B. He has always been aware of the risk of eviction and at present, he appears to have settled into occupation of land which is next to a travellers' community with children and animals: it is clear that even in making a home at Otterford B there are some aspects of compromise necessary on his part. He now has the benefit of an offer of housing from TDBC and may pursue a statutory route to appeal against a confirmation of the discharge of TDBC's housing duty if he still rejects the offer of accommodation. These are matters properly dealt with by the County Court which will also have before it SCC's application for possession and will be able to make appropriate orders in light of the situation then existing. This claim for judicial review is dismissed.
- I will deal with any consequential orders administratively. In particular, written submission as to costs must be served within 14 days of the handing down of this judgment.
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