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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> ZLL, R (On the Application Of) v Secretary of State for Housing, Communities and Local Government  EWHC 85 (Admin) (18 January 2022)
Cite as:  EWHC 85 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| The Queen (on the application of ZLL)
|- and -
|SECRETARY OF STATE FOR HOUSING, COMMUNITIES AND LOCAL GOVERNMENT
|(1) CAMDEN LONDON BOROUGH COUNCIL
Jack Anderson (instructed by Government Legal Department) for the Defendant
The Interested Parties did not appear and were not represented
Crown Copyright ©
MR JUSTICE FORDHAM:
At an early stage of the pandemic, there was rolled out the "Everyone In" scheme which was an initiative to get rough sleepers off the streets during the pandemic due to their vulnerability and the need to prevent others from being infected… On 23 March 2020, the first national lockdown was announced in response to the pandemic. On 26 March 2020, as part of the national measures adopted by the Government to counter the pandemic, Luke Hall MP, Minister for Local Government and Homelessness, wrote to all local authorities stating that "it is now imperative that rough sleepers and other vulnerable homeless are supported into appropriate accommodation by the end of the week". He referred to the need to "bring in those on the streets to protect their health and stop wider transmission". This marked the start of what has become known as the "Everyone In" initiative. The object of this public health initiative was to provide accommodation for rough sleepers as a matter of urgency. It recognised a heightened risk arising from homelessness.
The foreword to the Kerslake Commission on Homelessness and Rough Sleeping (final report, September 2021) said this:
Everyone In was an emergency response to a health crisis… By almost any measure, the initiative was a resounding success. Some 37,000 people were brought in off the streets according to Government estimates. An article in The Lancet calculated that at least 260 deaths have been avoided.
It is safe to use the word "initiative" for "Everyone In", as Freedman J did in Ncube (he also used the word "scheme" and, elsewhere, "policy"). In this case, "initiative" was the word used: in the judicial review claim form; in the opening line of the Claimant's skeleton argument; throughout the witness statement in support of the claim (Derek Bernardi, 1.9.21); throughout the Acknowledgment of Service ("AOS") of the Second Interested Party ("Shelter"); in public statements by or for the Defendant (see eg. §§17, 24, 27, 29 below); and in the witness statement filed on behalf of the Defendant (Catherine Bennion, 1.11.21).
Rough sleeping is the most extreme form of homelessness and many rough sleepers have high levels of complex needs. Many people who sleep rough do not have a statutory right to accommodation under the homelessness legislation, for example because they are not deemed to be in a 'priority need' category or are ineligible due to their immigration status… Rough sleepers are vulnerable to coronavirus (Covid-19); they are more likely to have underlying health conditions than the wider population and to face difficulties in following public health advice on self-isolation, social distancing and hygiene. They can also face barriers in accessing public health information and health care. Shared facilities used by rough sleepers – such as day centres, hostels and night shelters – may increase the risk of transmission of the virus.
The foreword to the Kerslake Commission final report says this:
… 'rough sleeping' … is deeply damaging to those experiencing it and to society at large. The health consequences of prolonged street homelessness are known to be severe and the costs of treatment and support escalate sharply the longer people are on the streets. For homeless young women, the risks of exploitation are high.
Some basic ideas
(1) Rough sleepers and 'non-rough sleepers'. There is a basic distinction between a rough sleeper and a 'non-rough sleeper'. There would need to be an individualised assessment by a decision-maker, to decide whether an individual is or is not a rough sleeper. The distinction between rough sleeper and non-rough sleeper is not the same as homeless and non-homeless.
(2) Persons 'at-risk' of becoming rough sleepers. A non-rough sleeper may be 'at-risk' of becoming a rough sleeper. Identifying an 'at-risk' rough sleeper will again involve an individualised assessment.
(3) 'New' rough sleepers. A rough sleeper may be a 'new' rough sleeper, who would not have been assessed to be a rough sleeper at a relevant stage in the past. A 'new' rough sleeper may have come onto the streets, or back onto the streets. They may be newly arrived in the UK. The point is that today's and tomorrow's rough sleepers are not necessarily catered for by action which dealt with yesterday's rough sleepers.
(4) 'Move-on accommodation' for previous rough-sleepers. There is a difference between providing immediate-response accommodation for a rough sleeper; and providing follow-up 'move-on accommodation' for a previous rough sleeper. The first helps them 'off the streets'. The second then helps them not to be 'back on the streets' in the future.
Some basic legal points
(1) The 'reach of powers' point. Local authorities have limited powers and cannot lawfully act beyond the scope and 'reach' of those powers. This point finds expression in Ncube at §43, where Freedman J explained that a local authority "is a statutory body and can only exercise those powers conferred on it by statute"; and that it "does not have any non-statutory or common law powers". The 'reach of powers' point was the essential backcloth for the Court's decision in Ncube (see §7(2) below).
(2) The 'no roadblock' point (Ncube). The issue in Ncube was whether the 'reach of powers' of local authorities precluded them from providing accommodation to rough sleepers who were NRPF individuals, viewed in the context of the pandemic and the Everyone In initiative. The statutory restrictions on what local authorities can do for NRPF individuals (see especially s.115 of the Immigration and Asylum Act 1999; Sch 3 to the Nationality Immigration and Asylum Act 2002; and s.185 of the Housing Act 1996) were considered in Ncube. The Court held (on 11.3.21) that there was, in principle, 'no roadblock' ("no vires block", as Mr Burton QC put it) to a local authority providing accommodation to an NRPF rough sleeper, in the context of the pandemic. The Court identified two statutory powers which a local authority could exercise. One was the power to provide temporary accommodation under s.138 of the Local Government Act 1972 (powers with respect to emergencies or disasters). That provision empowered a local authority to incur such expenditure as it considered necessary to avert, alleviate or eradicate the effects or potential effects of an emergency or imminent or reasonably apprehended emergency, involving danger to life, and likely to affect inhabitants of the local authority's area (see §§46 and 64). The Court held that those "emergency" powers could, in principle, be exercised in the context of periods of national lockdown, and probably also in periods of 'Tier 1' restriction (see §§60-61). It was for the local authority to address whether the conditions for the statutory power were satisfied and whether it was appropriate to exercise the power, which power could not be used to circumvent the restrictions and prohibitions relating to NRPF and duties owed to homeless individuals (see §64). The other power was s.2B of the National Health Service Act 2006 (steps for improving the health of people in the area). In principle: accommodation was one of the non-exhaustively described steps which a local authority could take (§74); accommodating rough sleepers "in order to save lives" was capable of falling within section 2B; so that "an initiative to remove rough sleepers from the streets during the pandemic to reduce the risk of life of the sleepers and the persons with whom they may have contact might be permitted under section 2B" (§78). It would be a "question of fact and degree" for the local authority to decide whether s.2B was applicable and what steps were appropriate, and accommodation could be provided to NRPF persons provided that there was no circumvention of the statutory restrictions in the homelessness provisions (see §79). The consequence of the 'no roadblock point' is twofold. First, it can in principle be within the 'reach of powers' of a local authority to accommodate an NRPF rough sleeper in the context of the pandemic. Secondly, that action necessarily involves evaluative judgments by the authority.
(3) The 'blanket action' point. Following on from the 'no roadblock' point, Mr Anderson accepted that the following proposition is a legally sound one: that it would, in principle, be open to a local authority in the context of the pandemic, properly exercising its statutory powers within their 'reach' – if it considered it appropriate to do so, and if it were satisfied that the statutory preconditions were met – to decide to take 'blanket' action by which it provided accommodation to all rough sleepers in the local authority's area, including all NRPF individuals who are rough sleepers. What that means is that, in principle and consistent with the 'reach of powers' point, 'Everyone In' could indeed mean "everyone".
(4) The 'duty of prescription' point. It is a recognised feature of public law that there are contexts in which it is legally necessary for public authority powers to be circumscribed by means of the issuing of prescriptive policy guidance. In HRA cases, this need for 'prescription' familiarly falls within the "prescribed by law" (and equivalent) formulations found in the Convention rights. But a similar 'duty of prescription' can arise at common law. As Lord Dyson said, in the context of statutory powers of executive immigration detention, in R (Lumba) v Secretary of State for the Home Department  UKSC 12  1 AC 245 at §34: "The rule of law calls for a transparent statement by the executive of the circumstances in which the broad statutory criteria will be exercised". As Lord Phillips said in Lumba at §302: "under principles of public law, it was necessary for the Home Secretary to have policies in relation to the exercise of her powers of detention of immigrants"; "[t]his necessity springs from the standards of administration of public law requires"; "[u]nless there were uniformly applied practices, decisions would be inconsistent and arbitrary". As Sedley LJ had said, in the context of clawback of overpaid income support benefit, in B v Secretary of State for Work and Pensions  EWCA Civ 929  1 WLR 3796: "It is axiomatic in modern government that a lawful policy is necessary if an executive discretion of the significance of the one now under consideration is to be exercised, as public law requires it to be exercised, consistently from case to case but adaptively to the facts of individual cases". As can be seen from those passages, the underpinning of the public law duty to issue prescriptive policy guidance guiding the exercise of discretionary powers is a recognition of the virtues of consistency and protection against arbitrariness.
(5) The 'duty of publication' point. A further recognised feature of public law is that prescriptive policy guidance, which has been issued, may in law need to be published. 'Prescription' and 'publication' are closely linked, as is their rationale. As has been seen above, in Lumba Lord Dyson emphasised (at §34) that what the rule of law called for was a "transparent" statement of the circumstances in which the broad statutory criteria would be exercised. He continued (at §35) that an affected individual, having "a basic public law right to have his or her case considered under whatever policy the executive sees fit to adopt provided that the adopted policy is a lawful exercise of the discretion conferred by the statute", had "a correlative right to know what the currently existing policy is, so that the individual can make relevant representations in relation to it". Lord Dyson, disagreeing with the Court of Appeal, was recognising "a general rule of law that policies must be published" (see §27). Lord Phillips (at §302) explained that "under principles of public law" it was not only "necessary for the Secretary of State to have policies in relation to the exercise of her powers of detention of immigrants" but that it was also necessary "that those policies had to be published". He explained: "Established principles of public law also required that the Secretary of State's policy should be published. Immigrants needed to be able to ascertain her policies in order to know whether or not the decisions that affected them were open to challenge". In B (at §43), Sedley LJ had said this: "If… such a policy has been formulated and is regularly used by officials, it is the antithesis of good government to keep it in a departmental drawer". He had gone on to explain that affected individuals were "entitled… to know the terms of the policy… so that they can either claim to be within it or put forward reasons for disapplying it, and so that the conformity of the policy and its application with principles of public law can be appraised". The 'duty of publication' is therefore linked, not only to the virtues of consistency and lack of arbitrariness, but also to the basic rights of affected individuals: to make representations as to how their case should be decided, and to consider and make an informed challenge to an adverse decision. The 'duty of publication' will therefore apply to any new policy or practice which curtails or discontinues a relevant policy which has previously been published, as was the position in Lumba itself.
(6) The 'externality' point. Prescriptive policy guidance, in accordance with these public law duties of prescription and publication, can – in principle – emanate 'externally': from a public authority who is not the ultimate decision-maker. So, as Lord Wilson explained in Mandalia v Secretary of State for the Home Department  UKSC 59  1 WLR 4546 at §29, there may be "guidance issued by one public body to another, for example by the Department of the Environment to local planning authorities".
(7) The 'duty of conformity' point (and its 'good reason exception'). Where there is relevant prescriptive policy guidance, public law recognises a basic duty on the decision-maker to act in conformity with (i.e. compatibly with) that policy guidance, absent good reason for departing from it. Where there is published policy guidance, there is relevant 'non-conformity' where a private policy or practice is issued, is not published, and is implemented (as happened in Lumba). The same point can be put another way. If there is a new policy which replaces the published policy guidance, the new policy must itself be published under the 'duty of publication'. The 'duty of conformity' was articulated in Lumba by Lord Dyson (at §26): "a decision-maker must follow his published policy (and not some different unpublished policy) unless there are good reasons for not doing so". Lady Hale (at §202) referred to "the duty, imposed by the common law, for the Secretary of State and his officials to comply with a published policy, unless there is good reason not to do so". Lord Phillips (at §313) described "the detention of a person in circumstances where, under the Secretary of State's published policies he should not have been detained" as being "a violation of principles of public law".
(8) The 'entitlement of conformity' point. Where there is relevant prescriptive policy guidance, public law recognises the basic 'entitlement' of an affected individual to a decision under the applicable policy guidance. This is the other side of the coin to the 'duty of conformity', because the public authority 'duty of conformity' carries a correlative 'entitlement of conformity' on the part of the affected individual. The same 'good reason exception' applies to that entitlement. This entitlement is also a key part of the rationale for the 'duty of publication', as has been seen (§7(5) above). In Lumba Lord Dyson (§35) called this the "basic public law right" of the individual "to have his or her case considered under whatever policy the executive sees fit to adopt" (provided that it is lawful). In Mandalia Lord Wilson (§29) referred to the "right" to a determination "in accordance with policy" and endorsed the view that that entitlement arose "as a requirement of good administration", distinct from the public law doctrine of 'legitimate expectation'.
(9) The 'role of the Court' point. The applicable objective standards of public law which arise in the context of the duties of 'prescription', of 'publication' and of 'conformity' involve the Court – in the exercise of its supervisory jurisdiction – identifying when those duties arise. That role on the part of the Court arises notwithstanding that the choice of the contents of any prescriptive policy guidance are for the relevant public authority, subject to the reasonableness duty. So is the choice of what new action or practice to promote. The application of prescriptive policy guidance to an individual case will be a question for the primary judgment of the decision-maker, though the interpretation (objective meaning) of the policy guidance in principle engages a hard-edged question for the judicial review Court. As to the latter (interpretation) point, relevant cases include Mandalia, where Lord Wilson (at §31) spoke of "the proper interpretation", there of a "process instruction", explaining (by reference to case-law on immigration policies) that "interpretation is a matter of law which the court must therefore decide for itself".
The sequence of key events in outline
Last week, the Government asked Dame Louise Casey to lead the Government's response to Covid-19 and rough sleeping to help make sure that we bring everyone in. It is our joint responsibility to safeguard as many homeless people as we can from Covid-19. Our strategy must be to bring in those on the streets to protect their health and stop wider transmission, particularly in hotspot areas, and those in assessment centres and shelters that are unable to comply with social distancing advice.
This approach aims to reduce the impact of Covid-19 on people facing homelessness and ultimately preventing deaths during this public health emergency. Given the nature of the emergency, the priority is to ensure that the NHS and medical services are able to cope and we have built this strategy based on NHS medical guidance and support.
The basic principles are to:
- focus on people who are, or are at risk of, sleeping rough, and those who are in accommodation where it is difficult to self-isolate, such as shelters and assessment centres;
- make sure that these people have access to the facilities that enable them to adhere to public health guidance on hygiene or isolation, ideally single room facilities;
- utilise alternative powers and funding to assist those with no recourse to public funds who require shelter and other forms of support due to the Covid-19 pandemic;
- mitigate their own risk of infection, and transmission to others, by ensuring they are able to self-isolate as appropriate in line with public health guidance
In the longer term it will of course be necessary to identify step-down arrangements for the future, including the re-opening of shelter-type accommodation.
Given the Prime Minister's announcement on Monday night that the public should be staying in their homes wherever possible, it is now imperative that rough sleepers and other vulnerable homeless are supported into appropriate accommodation by the end of the week. Dame Louise is spearheading all of our efforts to get everyone in. As she has said 'it won't be perfect but all of us together will do our best'.
We know that this requires funding. Last week, the Government announced £1.6bn for local authorities to respond to other Covid-19 pressures including for services helping the most vulnerable, including homeless people. This grant will cover all costs incurred in the first phase of the response, but we will keep future funding need under review. To support our understanding of what authorities or additional funding is likely to be required we will be working with local authorities to develop an ongoing assessment of costs …
As you know, this is a public health emergency. We are all redoubling our efforts to do what we possibly can at this stage to ensure that everybody is safe… I want to assure you that our advisers stand alongside you with support and advice so that, together as central and local government working in partnership with the sector, we can ensure that everybody can have an offer of accommodation by this weekend… We know that this is not a perfect system, and in time we can take stock and work together to consider how best to continue this support for rough sleepers, but for now the priority is to ensure that everyone, all individuals across the country, have an offer to come inside.
… commitment to support authorities with the additional cost pressures from the extra work and the specific tasks we have asked you to carry out as a result of the epidemic, in particular, in relation to… homelessness and rough sleeping…
A specialist task force has been created to lead the next phase of the government's support for rough sleepers during the pandemic. Spearheaded by Dame Louise Casey, the task force will work hand-in-hand with councils across the country and plans to ensure rough sleepers can move into long-term, safe accommodation once the immediate crisis is over – ensuring as few people as possible return to life on the streets.
The Secretary of State said this:
By working closely with councils, charities, faith groups and health providers, we have provided accommodation to over 5,400 people who were sleeping rough at the beginning of the crisis: that's over 90% of known rough sleepers.
It remains important to continue to help and support vulnerable people as the virus continues to pose a risk. As the risk reduces and we look towards easing the lockdown restrictions, we begin to enter the next phase of this endeavour and need to make plans for the future. We must continue to focus on ensuring accommodation and support arrangements can be managed safely to protect the most vulnerable, including those with complex needs. At the same time we need now to start planning the next steps for accommodating and supporting people to move on from emergency accommodation. We are doing so, and that is why we announced £433m of funding for accommodation for rough sleepers last weekend.
The Government also announced, on 2 May, the appointment of Dame Louise Casey to lead a Taskforce on the next phase of the Government's support for rough sleepers. Through the Taskforce, backed by our existing MHCLG Rough Sleeping and Homelessness Advisers, we will be working to support you during this next phase. As part of this work I am now asking that you put in place a plan of support for all rough sleepers accommodated in hotels and other forms of emergency accommodation during the response to the pandemic.
… In particular, I ask that you consider the following points closely:
- You should carry out individual assessments and take decisions on who you can provide support to, which would include providing accommodation to vulnerable people sleeping rough.
I do recognise that these are challenging times and that you may have accommodated people who would normally and otherwise be ineligible for support, making judgements based on risk to life. I wanted to take this opportunity to restate the government's position on eligibility relating to immigration status, including for those with No Recourse to Public Funds (NRPF). The law regarding that status remains in place. Local authorities must use their judgment in assessing what support they may lawfully give to each person on an individual basis, considering that person's specific circumstances and support needs. You will already be used to making such judgements on accommodating individuals who might otherwise be ineligible, during extreme weather for example, where there is a risk to life.
… to help local authorities implement a range of support interventions for people placed into emergency accommodation during the Covid-19 pandemic. This includes supporting moves into the private rented sector, helping individuals to reconnect with friends or family, and extending procuring interim accommodation.
The letter also described the temporary suspension of an EU derogation, already (since 9.19) suspended in areas with acute and concentrated numbers of EEA nationals sleeping rough, the suspension being to enable local authorities to accommodate and support a specific group of rough sleeping EEA nationals (ineligible for other types of support) for up to 12 weeks from 24 June 2020. By a press release also dated 24 June 2020 the Secretary of State announced the additional £105m to be "used to support rough sleepers and those at risk of homelessness into tenancies of their own", "to ensure the work being done to take society's most vulnerable of the streets during the pandemic has a lasting impact". The Secretary of State referred to the 15,000 vulnerable people taken off the streets "during the peak of the pandemic".
… part of the Government's 'Everyone In' initiative.
Many of you have also asked about how you should be assessing who is eligible for support now that the initial lockdown restrictions have eased, recognising that some parts of the country are subject to different, localised restrictions. Local authorities must carry out individual assessments of those who are not eligible for homelessness assistance to determine what services may be offered to them, taking into account legal duties and powers, and local resources. Local authorities should continue to offer accommodation to known rough sleepers who have refused offers or lost accommodation (if eligible), and to assess the needs and (within legal constraints) provide accommodation and/or support, to newly verified rough sleepers in their area using RSI and NSAP funded provision.
The letter also included this:
Support for individuals that are not eligible for homelessness assistance. Local authorities must ensure that any support offered to non-UK nationals who are not eligible for homelessness assistance complies with legal restrictions (for example, the restrictions contained in Schedule 3 to the Nationality, Immigration and Asylum Act 2002). Any funding provided for immigration advice is provided on the basis that this is to support individuals to determine or resolve their immigration status - not to challenge immigration decisions made by the Government. Any voluntary reconnections funded should be made if there is a reasonable prospect of an individual returning to their home country for a sustained period.
- Councils asked to make sure every rough sleeper offered somewhere safe to go, as new national restrictions start
- £15 million allocated for rough sleepers this year.
- All councils to review their current plans for housing rough sleepers
The Protect Programme was to "help areas that need additional support most during the restrictions and throughout winter". The announcement said this:
Areas with high numbers of rough sleepers will receive extra targeted support to provide accommodation for those currently sleeping rough, working with councils to prioritise those who are clinically vulnerable – this will continue throughout the winter until March 2021.
The announcement also said this of the Protect Programme:
This will run alongside the ongoing 'Everyone In' campaign, which is helping to protect thousands of lives during the pandemic – by September it had supported over 29,000 vulnerable people, with two thirds now moved into settled accommodation.
… those who are clinically vulnerable, as well as those with a history of rough sleeping. We would also expect you to carry out a rapid assessment of need for everyone that you accommodate and consider time-limited interventions for those new to rough sleeping.
The aim should be to enable the population to protect themselves against Covid-19 so they can follow Government requirements and guidelines, as well as enable them to recover and minimise the impact on ill-health in a safe environment. The approach aims to reduce the impact of Covid-19 on individuals rough sleeping and ultimately preventing deaths during this public health emergency.
The letters to the Leaders of those authorities would not be receiving additional funding also said this:
… we recognise the continuing efforts you are making alongside Government to support rough sleepers through your work on 'Everyone In', local Next Steps plans and longer term accommodation plans. By September we had successfully supported over 29,000 people, with over 10,000 still in emergency accommodation and nearly 19,000 provided with settled accommodation or move on support.
Taken together, this investment builds on the more than £700m that the Government is spending on rough sleeping and homelessness this year, with the ongoing 'Everyone In' campaign helping to protect thousands of lives during the pandemic by housing rough sleepers in safe accommodation …
Backed by an additional £10m in funding, all councils in England are being asked to redouble their efforts to help accommodate all those currently sleeping rough…
The Secretary of State said this:
At the start of this pandemic we made sure that the most vulnerable in society were protected this winter. We are continuing in this vein and redoubling our efforts to help those most in need. Our ongoing Everyone In initiative is widely regarded as one of the most successful of its kind in the world, ensuring 33,000 people are safe in accommodation.
The press release concluded with this:
Through Everyone In, by November we had supported around 33,000 people with nearly 10,000 in emergency accommodation and over 23,000 already moved on into the longer-term accommodation.
Through Everyone In, by November we had supported around 33,000 people with nearly 10,000 in emergency accommodation and over 23,000 already moved on into longer-term accommodation…
Our work to support rough sleepers never stopped and in November we asked all local authorities to update plans for rough sleepers to make sure people sleeping rough had somewhere safe to go over the winter. We provided additional funding through the Cold Weather Fund to all local authorities and targeted support through the Protect Programme to support local authorities with higher numbers of rough sleepers to meet the specific challenges they faced with the introduction of new national restrictions in November. However, given the new variant of COVID-19 that is driving infection rates, and the Prime Minister's announcement of a new national lockdown, it is clear we need to redouble our efforts to ensure that people who sleep rough, who we know are vulnerable to this disease, are kept safe and that we do everything we can to protect the NHS.
It is for this reason that I am asking you to redouble your efforts to help those currently sleeping rough to be accommodated. This means you should (subject to individual assessments) make offers of safe and appropriate accommodation to people who are rough sleeping now. This will include people who may have previously been offered accommodation but rejected it or left accommodation, and individuals new to rough sleeping who require help to move on from rough sleeping. As part of this, we also expect you to carry out a rapid assessment of need for everyone that you accommodate and consider interventions for those new to rough sleeping…
You will also need to consider the needs of those who might otherwise be ineligible for support as a result of immigration status. The law on eligibility relating to immigration status remains in place. Local authorities must use their judgement in assessing what support they may lawfully give to each person on an individual basis, considering that person's specific circumstances and support needs. You will no doubt currently be making similar judgements on accommodating otherwise ineligible individuals in the face of extreme weather.
People with No Recourse to Public Funds. We know that some individuals will have a "No Recourse to Public Funds" (NRPF) condition attached to their immigration status. The rules as to eligibility relating to immigration status, including for those with NRPF, have not changed. Local authorities must use their judgement in assessing what support they may lawfully give to each person on an individual basis, considering that person's specific circumstances and support needs. For those that might otherwise be ineligible, local authorities may also provide basic safety net support if it is established that there is a genuine care need that does not arise solely from destitution, for example, where there are community care needs, migrants with serious health problems or family cases. Anyone that is assessed as needing support based on this assessment, is covered by RSI 2021/22 funding. However, we remain clear that any support offered must comply with legal restrictions (for example, the current restrictions contained in Schedule 3 to the Nationality, Immigration and Asylum Act 2002).
More rough sleepers are set to be helped off the streets and into safe accommodation thanks to a further £203m funding… [which] will be allocated to councils across England and will support vital projects such as shelters, specialist mental health or addiction services, and targeted support to help rough sleepers of the streets for good.
The funding (which the Defendant points out was by way of a confirmation of RSI allocations) was described as "one part of an unprecedented £750m investment this year to tackle homelessness and rough sleeping" and "part of the government's drive to end rough sleeping by the end of this Parliament". Reference was made to the RSI, now in its fourth year. The announcement concluded with this:
This is alongside the government's unprecedented Everyone In initiative, launched by the Housing Secretary at the start of the pandemic to protect rough sleepers, which has so far supported 37,000 people, with more than 26,000 already moved on to longer-term accommodation.
… asking them to continue to work together to cement the achievements of Everyone In, which has supported over 37,000 vulnerable people during the pandemic.
The press release also said this:
Councils will also be asked to exhaust all options within the law to support rough sleepers not eligible for statutory homelessness assistance due to their immigration status.
… by January of this year the Government had supported over 37,000 people as part of our Everyone In initiative, with over 26,000 already moved into longer term accommodation – and hundreds of lives saved.
The Minister spoke of the need to:
… continue to work together, building on the broad range of partnerships with public health and others that were so critical to the success of 'Everyone In'.
I ask that you continue to focus relentlessly on reducing rough sleeping and make sure rough sleeping is as brief as possible and non-recurrent.
The letter went on to describe the government's commitment to ending rough sleeping and its plans to spend £750m this year alone on tackling homelessness and rough sleeping. The letter said this (emphasis in the original):
Non-UK nationals ineligible for statutory homelessness support due to immigration status. One of the key issues that has been raised with me is that of non-UK nationals ineligible for statutory homelessness support due to immigration status. Whilst this group is often referred to as those with no recourse to public funds, there are in fact several different statuses covered when this term is used generically. There are different options for individuals who may be ineligible for statutory homelessness support due to their immigration status and I want to be clear that the Government position is that you should exhaust all options within the law to provide a route off the streets for this cohort. Exhausting all options must start with a full and proper assessment of a person's status, it should include considering what discretionary powers can be used to support these individuals and fully exploring these powers in close partnership with the voluntary and community sector. I know this area can be complex which is why I have asked my officials to share further information about some of the legal powers you have to support individuals in this cohort. Exhausting all options should also include exploring how you can work with Home Office to regularise an individual's immigration status …
We remain clear that the law with regards to immigration status has not changed, and it remains for each local authority to decide what assistance can be provide[d] to people who are homeless and rough sleeping, based upon an individual assessment of a person's status, circumstances and needs.
The Everyone In initiative was part of the Government's response to the COVID-19 pandemic whereby central Government asked local authorities to support rough sleepers during an unprecedented public health crisis and made funding available for them to do so. The initiative was set out in the letter of 26 March 2020 from Minister Hall to Chief Executives. The Department did not provide designated funding for Everyone In, but has distributed grant funding to local authorities since March 2020 to cover additional spending related to COVID-19 and for move-on and ongoing support for rough sleepers. It was a matter for each local authority to deploy that funding to best effect and to consider the risks and need in their area. It should be emphasised that nothing in this initiative displaced the existing legal framework. As was made clear in communications from MHCLG to local authorities in correspondence dated 28 May 2020, the restrictions on eligibility on the grounds of immigration status continued to apply. Everyone In did not amount to a change in policy or approach in relation to eligibility for statutory assistance such as would need to be accompanied by formal guidance. Whilst it is the case that facts arising from the coronavirus epidemic may be relevant to the decision a local authority makes as to whether it does have a power or duty to provide accommodation in any particular case that will be a matter for the local authority's judgment in any individual case. The most recent published data shows that over 11,000 people continue to be supported through Everyone In in emergency accommodation. On 22 June 2021, the Housing Secretary asked Local Authorities to continue to work together to build on the achievements of Everyone In.
Some media outlets are reporting claims that we have told councils that the Everyone In scheme is ending. The work of Everyone In is ongoing. We've made huge progress to bring rough sleepers off the streets during the pandemic and this work continues. We've been clear with councils and partners that everyone helped into accommodation must be offered the tailored support they need to move forwards and that no one should find themselves back on the street without this. Tackling rough sleeping and homelessness remains an absolute priority for the Government. We are spending an unprecedented £750m over the next year, which includes further funding of £203m directly to councils to continue the work to help people off the streets. We're funding 6,000 long-term move-on homes for rough sleepers by the end of this parliament, with the majority becoming available this year. This demonstrates our commitment to end rough sleeping within this Parliament and fully implement the Homelessness Reduction Act.
Moran: With reference to the Government's commitment to end rough sleeping by 2024, whether he has plans to update the rough sleeping strategy to set out how that commitment will be met.
Hughes: Our focus in the last year has rightly been on managing the response to the pandemic and supporting tens of thousands of the most vulnerable people across our society. During the pandemic, we took unprecedented action to protect people sleeping rough or at risk of doing so. This saved lives and achieved huge reductions in the number of people sleeping rough: a 37% decrease in the latest statistics. Our ambition to end rough sleeping within this Parliament still stands. We are taking into account the lessons learned from our ongoing pandemic response, including Everyone In and the Protect Programme, to inform our long-term plans.
Moran: The Everyone In scheme has undoubtedly been a success and led to incredible stories of lives being turned around in a housing-first approach that has support from all sides of the House. However, several councils have reported that the Government have instructed them, through the terms of the [RSI] funding allocations, to end the use of emergency accommodation for those sleeping rough, so signalling the end of the Everyone In scheme. To make matters worse, the rough sleeping strategy is still in need of updating following the pandemic. Were local authorities instructed to end Everyone In? If so, have charitable and third-sector groups been made aware so that they can fill in the gaps? When can we expect to see the updated rough sleeping strategy and, indeed, the promised review of the Vagrancy Act 1824?
Hughes: As is so often the case, the Lib Dems are more focused on two things: making plans—rather than taking action—and scaremongering. It is categorically not the case that either charities or local councils have been instructed as the hon. Member suggested. Indeed, funding through the [RSI] continues to fund people in emergency accommodation. More importantly, we should note that that is a temporary form of accommodation and it is incredibly important that we get people moved on to more permanent forms of accommodation. That should be the objective of all of us.
[The Defendant] has been wholly transparent in its actions. "Everyone In" was not a permanent programme. Our client was transparent about the funding that was provided under it, and has been transparent about the fact that funding will not continue in the same way as the situation in England changes. [The Defendant] has written to local authorities making clear the still substantial additional resources that [the Defendant is] providing to local authorities in relation to the present stage of the epidemic. It remains the case – as it has always been – that it is for local authorities to decide how to exercise their statutory functions in light of local conditions and their assessment in individual cases.
Moran: On the [RSI], I would seek a point of clarification, and I think that many council officers would also be desperate for a clear answer on this. Councils received letters from the Government saying that, because of the [RSI], they should end all "Everyone In" programmes, and, in particular, the use of hotels. Meanwhile, they have heard elsewhere from Government that the "Everyone In" scheme is still ongoing. That has caused huge amounts of confusion, not least in my own area in Oxford, and other councils have also contacted me, desperate for an answer. My question is: has "Everyone In" now stopped completely, or are councils still allowed to use money to put people in hotels, or was that letter not saying the right thing?
Hughes: I would say that "Everyone In" continues; we still have people who are in emergency accommodation. However, we also need to appreciate that "Everyone In" is not a sustainable approach. It was fantastic that, during the height of a pandemic, we were able to move people into emergency accommodation, but the type of accommodation that many of those people were moved into is, by its very nature, not something we would expect people to stay in for a sustained period.
The Next Steps Accommodation Programme introduced in July 2020 is described in detailed guidance which makes no reference to Everyone In. In September 2020, the Minister described that programme as being "launched" as "part of" the "Everyone In" initiative; but that only underscores that "Everyone In" does not identify with clarity any particular policy or guidance or decision. The "Protect Programme" was described as running "alongside" "Everyone In". Thousands of people accommodated in March 2020 in response to the 26 March 2020 letter remain accommodated, and the Government has made a succession of decisions to provide additional funding for move-on accommodation to support local authorities in preventing people from returning to the streets. In that broad sense the work of "Everyone In" has continued; but it is not a term that can be fixed to a particular policy or guidance or funding decision and so there has been no decision to "end" it.
Recourse to Public Funds. In July 2021, Eddie Hughes, Minister for Rough Sleeping and Housing, sent the attached letter to Local Authority Council Leaders asking that they ensure that they are exhausting all options within the law to support those who are unable to access statutory homelessness assistance as a result of their immigration status. This letter made clear that exhausting all options should include considering what discretionary powers can be used to support individuals; exploring partnership work with the voluntary and community sector; and engaging with Home Office on complex cases, to support regularisation of status. Any funding we have provided can be used to help anyone, including those with restricted eligibility due to their immigration status, as long as LAs are acting within the law in doing so. This includes the recently announced Winter Pressures Fund, specifically focussed on enabling LAs to build on existing RSI 2021/22 interventions where it is needed. We understand that this is a complex area, particularly in the context of the pandemic and the change in status of EEA nationals. In July we also made available to local authorities the attached information on some of the existing legal powers they have to support non-UK nationals with restricted eligibility. We are clear that the law with regards to immigration status has not changed, and it remains for each local authority to decide what assistance can be provided to people who are homeless and rough sleeping, based upon an individual assessment of a person's status, circumstances and needs.
Ground one (conformity and publication): the Claimant's case
(1) A first legal truth is the 'reach of powers' point (see §7(1) above). That means that any action by local authorities in providing accommodation to rough sleepers would always need to fall within the 'reach' of their statutory powers. That would include, for example, the pre-suspension position of the EEA nationals described in the June 2020 next phase letter and announcement (24.6.20: §15 above). This truth is one which went without saying. And it therefore constitutes no distraction where it is found stated or restated. By way of an example, when the Next Steps follow-up letter (22.9.20: §18 above) spoke of assessing needs and providing accommodation "within legal constraints" and "taking into account legal duties and powers", this was a reflection of this first legal truth. Importantly, the 'reach of powers' point is consistent with local authorities providing accommodation to rough sleepers, because there is 'no roadblock' (see §7(2) above) and because 'blanket action' (see §7(3) above) which provides accommodation to all rough sleepers (so that "everyone" really is "in") is in principle open to local authorities during the pandemic and therefore open to the Defendant in lawful external prescriptive policy guidance, directed to local authorities.
(2) A second legal truth, which is a manifestation of the first, concerns NRPF individuals in particular. Theirs is a specific position covered by the general points made within the first legal truth, by reference specifically to the 'no roadblock' point (§7(2) above). Again, this truth would persist even absent statement (or restatement) by the Defendant, which statement (or restatement) involves no distraction. When, for example, in the Next Steps follow-up letter (22.9.20: §18 above), reference was made to "legal duties and powers" and to "legal constraints", and specifically to "legal restrictions", all of this was an expression of this legal truth, and entirely consistent with a published policy under whose criteria local authorities were to provide accommodation to all rough sleepers ("everyone in"). By way of further examples, the same is true of the language of the Everyone In announcement (26.3.20: §9 above) ("utilise alternative powers"); the May 2020 next phase letter (28.5.20: §14 above) ("The law regarding that status remains in place"; "lawfully"); the third national lockdown letter (8.1.21: §25 above) ("The law on eligibility relating to immigration status remains in place"; "lawfully'); the RSI Toolkit (28.1.21: §26 above) ("The rules as to eligibility… Have not changed"; "lawfully"); the information sheet (7.21: §30 above) ("the law… has not changed"); and so on.
(3) A third legal truth concerns the inherent need for an individual assessment. That is something which arises in the context of identifying rough sleepers, as distinct from 'non-rough sleepers' (§6(1) above). It is therefore another truth entirely consistent with a published policy under whose criteria local authorities were to provide accommodation to all rough sleepers ("everyone in"). It is also consistent with a policy extending to include (within "everyone") those who are 'at-risk' of becoming rough sleepers (§6(2) above). So, for example, there is no distraction in the language of the Next Steps follow-up letter (22.9.20: §18 above) which spoke of "individual assessment", that reflecting the word "verified" in the phrase "verified rough sleepers in their area"; nor in the language of the third national lockdown letter (8.1.21: §25 above) which spoke of "individual assessments" and "rapid assessment", in the context of action for 'people who sleep rough"; and so on.
(4) A fourth legal truth concerns the appropriateness of prioritisation of the most 'vulnerable' rough sleepers. Prioritisation is something which can be expected to arise in any context where any decision-maker or person implementing a policy needs to decide where to start (who is "in" first and fastest: those most "vulnerable"). It is not to be confused with where to finish ("everyone"). It is again entirely consistent with a published policy under whose criteria local authorities would provide accommodation to all rough sleepers ("everyone in"). Moreover, reference to "vulnerable" individuals in the context of rough sleepers is apt to include all rough sleepers, as it repeatedly did. To illustrate these points: when the May 2020 next phase letter (28.5.20: §14 above) spoke of a "focus" which was "to protect the most vulnerable, including those with complex needs" that was in the context of needing "a plan of support for all rough sleepers accommodated"; when the Protect Programme launch announcement (5.11.20: §20 above) spoke of work "to prioritise those who are clinically vulnerable", that was in the context of "support to provide accommodation for those currently sleeping rough", it being recognised that all of the rough sleepers who had been supported from March 2020 by the Everyone In initiative had been "vulnerable people"; when the third lockdown announcement (8.1.21: §24 above) spoke of "those most in need" and "the most vulnerable in society" that was a reference to "all those currently sleeping rough"; and so on.
(5) A fifth legal truth is that there is always the 'good reason exception' to the 'duty of conformity' (see §7(7) above), and to the correlative 'entitlement of conformity' (§7(8) above). That 'good reason exception' recognises that the duty to act in conformity with prescriptive policy guidance is subject to a local authority's ability to depart from that guidance for "good reason". One example of a "good reason" would concern local circumstances and local resources, including whether a local authority had been equipped with insufficient funding, by way of additional resources, to be able to provide accommodation for "everyone". As was explained in the global funding letter (30.4.20: §11 above), the Everyone In initiative was one of the "specific tasks" – a task in relation to "rough sleeping" – which local authorities had been asked to carry out, for which the 'non-ringfenced' global funding was available, but it remained for local authorities to decide where this was "best spent". Accordingly, for example, when the Next Steps follow-up letter (22.9.20: §18 above) spoke of local authorities determining what services may be offered, it referred to the fact that the local authority would be "taking into account… local resources". Again, all of this is consistent with a published policy under whose criteria local authorities would provide accommodation to all rough sleepers ("everyone in").
(1) First, there are the clear and published policy statements concerning "everyone", meaning "every" rough sleeper – all those currently, at any time, sleeping rough – being offered accommodation by local authorities. The Everyone In announcement (26.3.20: §9 above) had as its clearly stated objective in the "response to Covid-19 and rough sleeping", to "make sure that we bring everyone in". It was expressed "to bring in those on the streets", to focus on people who are sleeping rough, as well as those who are at-risk of sleeping rough. The identified "imperative" was that "rough sleepers" are "supported into appropriate accommodation". The Everyone In email (26.3.20: §10 above) unmistakably referred to "everybody" and "everyone". The Protect Programme launch announcement (5.11.20: §20 above) unmistakably referred to "every rough sleeper". The third lockdown tweet (4.1.21: §23 above) unmistakably referred to finding accommodation "for every rough-sleeper". The third lockdown announcement (8.1.21: §24 above) unmistakably referred to "all those currently sleeping rough".
(2) Secondly, there are the clear and published policy statements concerning the utilisation and exhaustion of "all" powers and "all" options. There was the Everyone In announcement (26.3.20: §9 above) with its reference to one of the "basic principles" as being to "utilise alternative powers and funding to assist those with no recourse to public funds"; there was the joined-up approach announcement (22.6.21: §28 above), with its reference to local authorities being "asked to exhaust all options within the law"; there was the working together letter (5.7.21), in which the deliberate emphasis (in the original text) was on the phrase "exhaust all options" in the context of providing a route off the streets even for NRPF individuals who were rough sleepers; and there is the position maintained in the PAC letter (15.11.21: §37 above) regarding local authorities ensuring that they are "exhausting all options within the law". Bearing in mind the 'no roadblock' and the 'blanket action' points (see §§7(2) and (3) above), this clearly reflects the "everyone" policy as clearly issued and published.
(3) Thirdly, there is the clear and unmistakable ongoing inclusion of accommodation for current – including 'new' (see §6(3) above) rough sleepers – alongside the ongoing steps to provide 'move-on accommodation' for previous rough sleepers currently in accommodation (see §6(4) above). There is, for example, the Next Steps follow-up letter (22.9.20: §18 above), with its clear reference to the provision of accommodation and/or support "to newly verified rough sleepers in their area"; and the Protect Programme launch letters (5.11.20: §21 above), with the reference to interventions for those "new to rough sleeping". This ongoing inclusion has been alongside the published policy guidance relating to 'move-on accommodation', reflected: in the task force announcement (2.5.20: §12 above) ("plans to ensure rough sleepers can move into long-term, safe accommodation… ensuring as few people as possible return to life on the streets"); in the supported homes announcement (24.5.20: §13 above) ("long-term, safe homes for vulnerable rough sleepers taken off the streets during the pandemic"); in the May 2020 next phase letter (28.5.20: §14 above) ("next steps for accommodating and supporting people to move on from emergency accommodation"); in the Next Steps launch (18.7.20: §16 above) ("to prevent the nearly 15,000 people accommodated during the pandemic from returning to the streets"); in the Next Steps follow-up statement (17.9.20: §17 above) (ditto); in the joined-up approach announcement (22.6.21: §28 above) ("helped to stay off the streets for good"); and so on.
(4) Fourthly, there are the clear and unmistakable published policy positions describing Everyone In as a policy which has been 'ongoing', which has been 'continuing', and which has not 'ended'. There was the homelessness and rough sleeping funding letter (21.12.20: §22 above), describing the "'Everyone In' campaign helping to protect thousands of lives during the pandemic by housing rough sleepers in safe accommodation" as being "ongoing". There was the third lockdown tweet (4.1.21: §23 above), which categorically denied a claim that the everyone in drive against rough sleeping was not being renewed, describing that claimed nonrenewal as being "not true", and which stated in terms that the "drive… to successfully find accommodation for every rough-sleeper" as seen "during the first lockdown" was "continuing". There was the third lockdown announcement (8.1.21: §24 above), which spoke of what the Defendant had "made sure" at the start of the pandemic, which described the policy as "continuing in this vein", and which expressly described the Everyone In initiative as "ongoing". There was the response blog (7.7.21: §32 above), which specifically denied reported claims that local authorities had been told that the Everyone In scheme was "ending", stating as the correct position that the "work of Everyone In is ongoing". And there was the explanation in the House of Commons debate (19.7.21: §33 above), stating that it was "categorically not the case" that local authorities had been "instructed… to end the use of emergency accommodation for those sleeping rough" and "instructed to end Everyone In".
(5) Fifthly, this can be added. Alongside the descriptions of Everyone In as ongoing, and continuing, and not having ended, have been clear descriptions of the growing numbers of rough sleepers who had been accommodated (taken 'off the streets') under the Everyone In initiative. Those references make clear that Everyone In was at no stage curtailed or restricted to the provision of 'move-on accommodation' (§6(4) above) for those rough sleepers who had previously been 'taken off the streets' and offered emergency accommodation at some past stage during the pandemic; still less those originally accommodated in the first national lockdown. Accordingly, the task force announcement (2.5.20: §12 above) was a description of the Everyone In initiative as having "provided accommodation to over 5,400 people who were sleeping rough at the beginning of the crisis"); then the June 2020 next phase letter and announcement (24.6.20: §15 above) and the next Steps launch (18.7.20: §16 above) spoke of the 15,000 vulnerable people taken off the streets during the peak of the pandemic. But then the Protect Programme launch letters (5.11.20: §21 above) made clear reference to successful support of over 29,000 people by September 2020 through local authorities' work on "Everyone In", with distinct reference being made to 'move-on accommodation' (next steps plans and longer-term accommodation plans) for those 29,000 people successfully taken off the streets, nearly 19,000 of whom had already been provided with settled accommodation or move-on support. Similarly, the third lockdown announcement (8.1.21: §24 above) made the clear and unmistakable claim that around 33,000 people had by November 2020 been supported by way of the successful operation of the "ongoing Everyone In initiative" (by being 'taken off the street'), of which a distinct sub-category of some 23,000 had already been provided with 'move-on accommodation'. Then the working together letter (5.7.21), like the next stage announcement (15.5.21: §27 above) before it, made the clear and unmistakable claim that 37,000 people had by January 2021 been supported "as part of our Everyone In initiative", of whom a sub-category of some 26,000 had already been provided with 'move-on accommodation'. These descriptions of growing numbers helped 'off the streets' reflect the fact that Everyone In continued to operate to provide accommodation to current (including 'new') rough sleepers, and not simply to secure 'move-on accommodation' for those rough sleepers previously or originally accommodated under Everyone In.
Ground one (conformity and publication): discussion
(1) The situation where the common law recognises a 'duty of prescription' is where there are broad discretionary powers needing a statement of criteria, in order to secure appropriate consistency, to protect against arbitrariness, to allow informed representations and to facilitate informed challenge (see §§7(4)(5)(7)(8) above). I accept that actions taken by local authorities in the context of rough sleepers can, in principle, be seen as falling well within that need. But such actions are already the subject of a well-established framework of legislation and guidance, together with a body of relevant case law. Mr Anderson accepted – rightly, in my judgment – that the context of local authority action in relation to rough sleepers is one in which central Government action is, in principle, "justiciable" in public law terms. This is not an area in which Government would make public statements calling for action, free of any legal accountability. If Government were to exhort action by local authorities, in the context of rough sleepers and the pandemic, calling for accommodation based on race or religion, or calling for accommodation of those with 'red hair' (to take the common law's conventional example of aberrant executive action) no doubt substantive principles of public law would doubtless be engaged. I would also accept, in principle, Mr Burton QC's submission that – even if the 'duty of prescription' does not arise (see §7(4) above) – where central Government chooses to issue prescriptive policy guidance, the 'duty of conformity' and the 'duty of publication' can be engaged in relation to action following having made that choice. The public law duties of 'conformity' and 'publication' do not follow wherever there is an "initiative" which is an aspect of Government "policy" with practical implications for individuals.
(2) As I put to Mr Burton QC, there is no general public law principle which requires of the executive in the context of all Government "policy" that which is required under the principle of legality, where Parliament is said to have legislated in a manner contrary to fundamental principles of human rights (see R v Secretary of State for the Home Department, ex p Simms  2 AC 115 at 131E-F), namely that Parliament "must squarely confront what it is doing". There may – within the realms of Government "policy" – be nuance, subtlety and fluidity. There may – within those same realms – be ambiguity, prevarication and obfuscation. Indeed, ambiguity or lack of clarity in a "policy" statement is familiarly encountered, not least because it may be precisely those characteristics that prevent any 'legitimate expectation' from arising. The "constraints" on "policy" having these characteristics are "ultimately political, not legal" (cf. Simms at 131E). Mr Burton QC submits that the "Lumba principles" produce the same outcome as the principle in Simms: requiring the policy maker to "squarely confront" what it is doing. But the public law duties of 'prescription', of 'conformity', and of 'publication' (see §§7(4)(5)(7) above) are not engaged wherever there is an "initiative" which can be described as Government "policy". They are principles which concern a species of "policy". And there is good reason why that species is in the nature of 'prescriptive policy guidance', by which decision-making criteria are needed to be introduced (or are in fact introduced), to regulate the exercise of discretionary powers.
[Q] How should we be working with people sleeping rough? [A] You should continue to provide services to people identified as sleeping rough in your area, using your existing verification process with a focus on outreach services where these are in place. People are sleeping rough should be prioritised for accommodation and support where you assess that this is required based on their vulnerability.
[Q] Who is a vulnerable rough sleeper? [A] This is for you to decide based on your assessment of their individual circumstances. It will be important for housing act assessments to be carried out to assess the needs of people sleeping rough or at risk of sleeping rough. [If pushed] There are a range of factors to consider here but three important ones are: those rough sleepers who would be particularly vulnerable if they contracted the virus; those rough sleepers who have a known history of sleeping rough, associated for health, and who need support to access services; those who you have reason to believe may have priority need.
[Q] Are you asking us to get all rough sleepers of the streets? [A] We would still want you to work with all rough sleepers in your area offering accommodation and support interventions where these are available prioritising vulnerable rough sleepers as you see appropriate.
This "script" was prepared for use alongside the (published) May 2020 next phase letter (28.5.20: §14 above), with its references to "the most vulnerable". Even focusing on the published communications, there was – as early as the "next phase" documents of May 2020 – a subtlety and nuance in the Government position. To a legal eye, in an enquiry into 'conformity' with published criteria, there is an elusiveness. But this was not a context in which decision-making criteria had been – and were being – issued, through prescriptive policy guidance, so as to engage the 'duty of conformity' on the part of local authorities (§7(7) above) and the 'entitlement of conformity' on the part of rough sleepers (§7(8) above). There was Government "policy", for which Government was accountable in the arena of public opinion and through the political and democratic process. Government's actions were subject to the general public law duty of reasonableness and subject to the duty to act compatibly with Convention rights under the HRA, neither of which is said on behalf of the Claimant to have been breached in this case. But they did not attract the specific public law 'duty of conformity' and 'duty of publication' that arise where prescriptive policy guidance has been published.
At the outset of the Government's Everyone In initiative, local authorities were encouraged to assist all rough sleepers into emergency accommodation… At the end of May 2020, however, this messaging became more ambiguous… There is evidence that from that point the support offered by local authorities to those with NRPF became increasingly divergent…
Whilst the direction at the start of the Covid-19 pandemic to get 'everyone in' was clear, as the pandemic progressed there were reports of increasingly divergent approaches being taken by local authorities. Whilst some authorities continued to take new rough sleepers into emergency accommodation regardless of eligibility, others returned to assessing people's eligibility for support.
Catherine Bennion is Deputy Director for Rough Sleeping at the Department for Levelling Up, Housing and Communities (formerly MHCLG). Her witness statement on behalf of the Defendant in these proceedings accepts the following: that "Everyone In" was a phrase which became "branding", which was "easily recognised in the sector" and was "therefore useful to use"; that "the phrase 'Everyone In' was commonly used to refer to the Government's pandemic response in relation to rough sleepers"; that the phrase "continued to be used as a shorthand for our pandemic response"; that this "shorthand" was used at times when the Ministry was "aware that not everybody was being 'brought in'"; that the Ministry "accept[s] that at some points throughout the pandemic response, there was some inconsistency in the use [of] the expression 'Everyone In'"; that "Everyone In" "continued to be described as ongoing in [the Ministry's] communications", and used "particularly" as meaning that "those who had been 'brought in' from March 2020 … continued to be supported". The Defendant's pleaded Defence64 (§36 above) says "Everyone In" did not "identify with clarity" any "particular policy or guidance or decision".
Ground two (consultation of Shelter)