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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Sambotin, R (On the Application Of) v The London Borough of Brent  EWCA Civ 1826 (31 July 2018)
Cite as:  WLR(D) 500,  EWCA Civ 1826,  PTSR 371,  HLR 5
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ON APPEAL FROM THE HIGH COURT (QUEEN'S BENCH DIVISION) (ADMIN)
Sir Wyn Williams (sitting as a High Court Judge)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE HENDERSON
LORD JUSTICE PETER JACKSON
| R (ON THE APPLICATION OF ROMEO SAMBOTIN)
|- and -
|THE LONDON BOROUGH OF BRENT
Justin Bates and Alice Richardson (instructed by Shelter Legal Team) for the Respondent
Hearing date: 26 July 2018
Crown Copyright ©
Lord Justice Peter Jackson:
"The council's decision
- We are satisfied that you are homeless as defined by section 175 of the above Act.
- We are satisfied that you are eligible for assistance as defined by section 185 of the above Act.
- We are satisfied that you fall within the category of priority need as defined by section 189 of the above Act.
- We are satisfied that you are not homeless deliberately as defined by section 191 of the above Act.
- However we are not satisfied that you have a local connection with this authority as defined by section 198 of the above Act."
"On review of the facts, we are satisfied that there has been a fundamental mistake of fact. As stated in the case of Porteous… a local authority is entitled to revisit and change an earlier decision if the earlier decision resulted from a fundamental mistake of fact. We believe that there has been a fundamental mistake of fact in that there has been an oversight on our part… It would not be correct for a local authority to stand by a decision that was incorrect in law even if it is a case of oversight as it has been in this case."
The statutory framework
"(1) If the local housing authority have reason to believe that an applicant may be homeless or threatened with homelessness, they shall make such enquiries as are necessary to satisfy themselves –
(a) whether he is eligible for assistance, and
(b) if so, whether any duty, and if so what duty, is owed to him under the following provisions of this Part.
(2) They may also make enquiries whether he has a local connection with the district of another local housing authority in England, Wales or Scotland.
(3) On completing their enquiries the authority shall notify the applicant of their decision and, so far as any issue is decided against his interests, inform him of the reasons for their decision.
(4) If the authority have notified or intend to notify another local housing authority under section 198 (referral of cases), they shall at the same time notify the applicant of that decision and inform him of the reasons for it.
(5) A notice under subsection (3) or (4) shall also inform the applicant of his right to request a review of the decision and of the time within which such a request must be made (see section 202)."
"(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 applicant to another local housing authority (see section 198), they shall secure that accommodation is available for occupation by the applicant.
"(1) If the local housing authority would be subject to the duty under section 193 (accommodation for those with priority need who are not homeless intentionally) but consider that the conditions are met for referral of the case to another local housing authority, they may notify that other authority of their opinion.
(2) The conditions for referral of the case are met if –
(a) neither the applicant nor any person who might reasonably be expected to reside with him has a local connection with a district of the authority to whom his application was made,
(b) the applicant or a person who might reasonably be expected to reside with him has a local connection with the district of that other authority, and
(c) neither the applicant nor any person who might reasonably be expected to reside with him will run the risk of domestic violence in that other district.
[(2ZA), (2A) and (3) concern cases of domestic violence]
(5) The question whether the conditions for referral of a case are satisfied shall be decided by agreement between the notifying authority and the notified authority or, in default of agreement, in accordance with such arrangement as the Secretary of State may direct by order."
"(1) Where a local housing authority notify an applicant that they intend to notify or have notified another local housing authority of their opinion that the conditions are met for the referral of his case to that other authority –
(a) they cease to be subject to any duty under section 188 (interim duty to accommodate in case of apparent priority need), and
(b) they are not subject to any duty under section 193 (the main housing duty),
but they shall secure that accommodation is available for occupation by the applicant until he is notified of the decision whether the conditions for referral for his case are met."
"18.3. Notwithstanding that the conditions for a referral are apparently met, it is the responsibility of the notifying authority to determine whether s.193 applies before making a reference. Applicants can only be referred to another authority if the notifying authority is satisfied that the applicant is unintentionally homeless, eligible for assistance and has a priority need. Applicants cannot be referred while they are owed only the interim duty under s.188, or any duty other than the s.193 duty (e.g. where they are threatened with homelessness or found to be homeless intentionally)."
The equivalent passage in the 2018 Guidance is to similar effect:
"10.45 Section 198(1) enables a housing authority to refer an applicant who is owed the main housing duty but does not have a local connection to their district, to another housing authority in England, Wales or Scotland if it considers that the conditions for referral are met. Before making a referral, it is the responsibility of the notifying authority to determine that the applicant is unintentionally homeless, eligible for assistance and has a priority need; and is owed the main housing duty."
The judge's decision
"31. I am prepared to accept that the decision in the Crawley BC case provides broad support for the proposition that Ms Ferber advances, namely that a local housing authority is entitled to revisit a decision which it has communicated to an applicant for housing assistance in circumstances where either (a) it has not completed its enquiries under section 184 of the Act, or (b) it has made no final decision as to the nature of the duty it owes to an applicant. Accordingly, as it seems to me, the first issue for my decision is whether, on the facts in this case, the Defendant had completed its enquiries under section 184 of the Act and had communicated a decision to the Claimant as to the nature of the duty which it owed to him.
32. The terms of the letter of 30 January 2017 from the Defendant to the Claimant could not be clearer. The letter records, in terms, that the Defendant had satisfied itself that the Claimant was homeless, that he was eligible for assistance, that he had a priority need and that he was not homeless intentionally. In my judgment it is crystal clear that it had completed the enquiries mandated by section 184 of the Act.
36. Ms Ferber… submits that the Defendant had made no final decision as to its duty precisely because it had referred the Claimant's application to Waltham Forest. She submits that until a decision had been made on that referral there had been no final decision upon the nature of the Defendant's duty.
37. I do not accept that submission. Upon a referral by one local authority to another the authority to which the application is referred is bound to accept it if the conditions for referral are met. The 1996 Act provides a mechanism whereby disputes about the referral conditions can be determined. If a dispute arises and is resolved in favour of the referring authority the authority to whom the application is referred is bound to deal with it and it will be bound by the view which the referring authority has reached about homelessness, eligibility for assistance, priority need and intentional homelessness. Conversely, if the authority to which the referral has been made shows that the conditions for referral have not been met the referring authority will owe to the applicant the duty under section 193(2) to "secure that accommodation is available for occupation by the applicant".
38. It seems to me that this conclusion is supported by the reasoning and decision in Dagou. The facts in Dagou were very similar to the facts in the instant case. …
39. Sir Louis Blom-Cooper QC sitting as a High Court Judge quashed the later decision. One possible reading of the reasoning of the judge for reaching his decision is that he considered there to be a broad principle to the effect that once a decision was made under the relevant provisions of the legislation then in force (the Housing Act 1985) it could not be revisited unless fraud or deception was established on the part of the applicant. In Crawley, Buxton LJ, with whose judgment Chadwick LJ and Sir Richard Scott V-C agreed, expressly doubted the validity of such a broad principle – see page 645 of the report. However no authority subsequent to Dagou has questioned the actual decision made by the learned judge. Further no one has doubted his legal analysis or characterisation of what is involved when a referral from one local authority to another on the basis of local connection takes place. At page 82 of his judgment the learned judge said this:-
"In my view the section 67 notification is distinct and separate from the stages leading up to a finding of unintentional homelessness by the applicant who was a person in priority need. The referral under section 67 is an executional performance of a full housing duty brought into existence by the finding of the local authority after having completed its inquiries under section 62."
40. Notwithstanding that the judge was concerned with the Housing Act 1985 which has somewhat different wording from the successor legislation with which I am concerned I can see no basis to conclude that this analysis by the judge is incorrect. To repeat, so far as I am aware this part of his judgment has never been doubted notwithstanding the somewhat different wording with which he was dealing in the 1985 Act compared with the relevant wording of the 1996 Act. In my judgement this part of the reasoning in Dagou provides considerable support for the conclusions which I have expressed above.
41. I have reached the clear conclusion that the evidence establishes that the Defendant completed its enquiries on all matters relevant to establishing the duty, if any, which it owed to the Claimant under Part VII of the Act and, further, it had in substance made a final decision as to the duty owed. That final decision was communicated to the Claimant by the letter of 30 January 2017."
And as to reasons:
"48 … Instinctively, it seems to me that fairness demands not just that the Defendant should provide reasons to justify its second decision (which it did) but also reasons to support its view that it was entitled to make a second decision (which it did not).
49. It is true that in its response to the Claimant's pre-action protocol letter the Defendant asserted that it had made a fundamental mistake of fact but provided no clue as to what that mistake had been.
50. In short I am satisfied that the Defendant was under a duty to provide reasons to justify its view that it was entitled to make the decision communicated in the letter of 10 February 2017 and that prior to the commencement of these proceedings it failed to do so."
Conclusion on the finality of the 30 January determination
(1) The scheme of the legislation separates the questions of eligibility and local connection. The latter only arises when the former has been established: s.198(1) and the Guidance at 18.3, which also makes clear that no referral can be made on the basis of the existence of an interim housing duty. I therefore accept the submission of Mr Bates and Ms Richardson that the main housing duty crystallises under s.193(2) when the authority has satisfied itself about the four qualifying conditions under s.193(1). From that point onwards, the only question is which authority is to be responsible for discharging the duty. The only matters that are relevant to that question are the conditions relating to local connection: s.198(2), (2ZA) and (2A). If these are not met, the referring authority is responsible: s.200(3); if they are, the receiving authority is responsible: s.200(4). There is a dispute resolution mechanism under s.198(5) and the Regulations. This allows no scope for arguments about anything else, and consequently there are no further enquiries that could be made by the referring authority under s.184. The Act does not allow for the withdrawal or review of a favourable decision, only an unfavourable one via review and appeal under sections 202 and 204. These are all clear indications that the local connection referral process only begins once the eligibility assessment ends.
(2) I do not accept the implication Brent seeks to draw from the statutory language. The words 'would be' in s.198(1) ("If the local housing authority would be subject to the duty under section 193…") connote a duty that exists as a prerequisite to a local connection referral, and not a duty that has not yet arisen. Likewise, s.200(1)(b), which provides that where a local connection referral is notified the referring authority is not subject to any housing duty, is most naturally understood as suspending the operative effect of an otherwise existing duty; it does not prevent the duty from arising. As Henderson LJ noted in argument, if the duty did not exist, the provision would be superfluous.
(3) Brent's construction leads to real practical difficulties. Ms Ferber argues that the housing duty only arises once the local referral process is complete. But the completion of the referral process is a moveable feast, depending upon whether the referral is accepted or not. Why, it might be asked, should an undoubtedly eligible applicant be kept waiting to know whether and if so when his entitlement to housing has been accepted? Which authority is to make the 'final' decision? Moreover, referring authorities may be faced with requests from receiving authorities to review their decisions on wider grounds than the legislation permits and receiving authorities might refuse to agree to accept referrals because they disagree with the eligibility decision. All of this tends to undermine the legislative scheme. Uncertainty about eligibility is exactly what it aims to eliminate.
(4) I would reach this conclusion as a plain matter of statutory construction. But it is nonetheless interesting that it accords with the conclusion reached many years ago in Dagou. That decision has been disapproved by this court in Crawley to the extent that it may have sought to limit to fraud alone the circumstances in which a decision can be reconsidered. However, like the judge at paragraph 39 of his decision (see above), I would endorse the soundness of the analysis in Dagou of the statutory framework, and I agree that the changes in wording between the Housing Act 1985 and the current legislation make no difference in this respect.
(5) It is true that the receiving authority is bound by the eligibility decision of the referring authority, subject only to the local connection criteria being met, and to the decision of an appointed person in the event of disagreement. No doubt there are situations where one authority has to house an applicant on the back of an eligibility decision that it would not itself have made, but the purpose of the legislation is to achieve clarity in the division of statutory responsibilities. Nor is there a need to struggle to escape the plain intentions of the statutory scheme where there are alternative remedies in the rare cases where a problem such as the present one arises. Brent could have insisted upon its eligibility decision. Had Waltham Forest then been sufficiently concerned, it could have brought judicial review proceedings, though it is notable that there are only two reported examples of this happening: R v Slough BC Ex p. Ealing LBC  QB 801, CA and R v LB Ealing Ex p. Royal Borough of Kensington and Chelsea  EWHC (Admin) 24;  HLR 13. Still less likely, but not impossible, an authority could bring judicial review proceedings against itself to unravel a seriously incorrect decision, but the subject of the decision would then have the protections that such proceedings afford.
(6) Ms Ferber has argued that the letter of 30 January was simply a notice under s.184(4) that a local connection referral had been made, but a reading of all the other critical matters decided in the letter shows that this cannot be so.
(7) Although it cannot influence the question of statutory construction, it is noteworthy from the terms of the letters of 30 January to Mr Sambotin and to Waltham Forest that Brent itself plainly thought it was making a final decision on eligibility, and no doubt Mr Sambotin did too.
Lord Justice Henderson:
Lord Justice Longmore:
Note 1 This part of the Act has, with effect from 3 April 2018, been amended by the Homelessness Reduction Act 2018, but the amendments do not bear upon the issues arising on this appeal. [Back] Note 2 Revised guidance has been in place since 3 April 2018 (and was amended in June 2018) to take into account the changes introduced by the Homelessness Reduction Act 2017.
[Back] Note 3 R v Bassetlaw DC, ex p. Oxby  PCLR 283 (CA) [Back]
Note 1 This part of the Act has, with effect from 3 April 2018, been amended by the Homelessness Reduction Act 2018, but the amendments do not bear upon the issues arising on this appeal. [Back]
Note 2 Revised guidance has been in place since 3 April 2018 (and was amended in June 2018) to take into account the changes introduced by the Homelessness Reduction Act 2017. [Back]
Note 3 R v Bassetlaw DC, ex p. Oxby  PCLR 283 (CA) [Back]