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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> B, R (on the application of) v London Borough of Redbridge [2019] EWHC 250 (Admin) (13 February 2019) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2019/250.html Cite as: [2019] EWHC 250 (Admin), [2019] WLR(D) 93, [2019] PTSR 1525 |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
SITTING AS A DEPUTY JUDGE OF THE HIGH COURT
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THE QUEEN (on the application of B) |
Claimant |
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- and - |
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London Borough of Redbridge |
Defendant |
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Stephen Evans (instructed by Head of Legal, London Borough of Redbridge) for the Defendant
Hearing date: 6 February 2019
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Crown Copyright ©
Jeremy Johnson QC, sitting as a Deputy Judge of the High Court :
Introduction
(1) A statutory appeal to the County Court from the Defendant's decision that the accommodation is suitable;(2) An application for permission to appeal to the High Court from the County Court's decision not to admit evidence that was not before the original decision maker and, following the dismissal of that application on the papers, a renewed oral application for permission to appeal;
(3) An application for permission to appeal to the Court of Appeal against the decision of the County Court to dismiss the Claimant's statutory appeal;
(4) These judicial review proceedings whereby the Claimant seeks an order requiring the Defendant to conduct a statutory review under s202(4) of the 1996 Act.
The facts
"There are also some expenses which our client has not yet started paying: she has not yet had the first electricity bill for her property. We do not know what type of heating is provided but it appears it must be electric heating of some sort as there is apparently no gas supply to the property, only electricity. Electric heating of course tends to be more expensive than gas heating. For now we have included a figure of £20 per week for electricity costs (including the heating and hot water costs) which may well prove to be a conservative estimate."
"14. Affordability: As part of my consideration in regards to whether the accommodation is suitable, I consider whether it is affordable for your client to live in this accommodation. This is not just whether your client can afford to pay the rent, but also whether this accommodation causes your client any additional expenses that are unreasonable for her to bear…"
"…when the Department for Work and Pensions decides to apply the benefit cap it will move to a point of being extremely borderline in terms of affordability…"
Legal framework
"193. Duty to persons with priority need who are not homeless intentionally.
(1) This section applies where—
(a) the local housing authority—
(i) are satisfied that an applicant is homeless and eligible for assistance, and
(ii) are not satisfied that the applicant became homeless intentionally,
(b) the authority are also satisfied that the applicant has a priority need, and
(c) the authority's duty to the applicant under section 189B(2) has come to an end.
…
(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.
(3) The authority are subject to the duty under this section until it ceases by virtue of any of the following provisions of this section.
…
(9) A person who ceases to be owed the duty under this section may make a fresh application to the authority for accommodation or assistance in obtaining accommodation.
…"
"206 Discharge of functions by local housing authorities.
(1) A local housing authority may discharge their housing functions under this Part only in the following ways—
(a) by securing that suitable accommodation provided by them is available,
(b) by securing that he obtains suitable accommodation from some other person, or
(c) by giving him such advice and assistance as will secure that suitable accommodation is available from some other person."
"202 Right to request review of decision
(1) An applicant has the right to request a review of-
(a) any decision of a local housing authority as to his eligibility for assistance,
(b) any decision of a local housing authority as to what duty (if any) is owed to him under sections 189B to 193C and 195 (duties to persons found to be homeless or threatened with homelessness),
(ba) any decision of a local housing authority—
(i) as to the steps they are to take under subsection (2) of section 189B, or
(ii) to give notice under subsection (5) of that section bringing to an end their duty to the applicant under subsection (2) of that section,
(bb) any decision of a local housing authority to give notice to the applicant under section 193B(2) (notice given to those who deliberately and unreasonably refuse to cooperate),
(bc) any decision of a local housing authority—
(i) as to the steps they are to take under subsection (2) of section 195, or
(ii) to give notice under subsection (5) of that section bringing to an end their duty to the applicant under subsection (2) of that section,
(c) any decision of a local housing authority to notify another authority under section 198(1) (referral of cases),
(d) any decision under section 198(5) whether the conditions are met for the referral of his case,
(e) any decision under section 200(3) or (4) (decision as to duty owed to applicant whose case is considered for referral or referred),
(f) any decision of a local housing authority as to the suitability of accommodation offered to him in discharge of their duty under any of the provisions mentioned in paragraph (b) or (e) or as to the suitability of accommodation offered to him as mentioned in section 193(7),
(g) any decision of a local housing authority as to the suitability of accommodation offered to him by way of a private rented sector offer (within the meaning of section 193),
(h) any decision of a local housing authority as to the suitability of accommodation offered to the applicant by way of a final accommodation offer or a final Part 6 offer (within the meaning of section 193A or 193C).
(1A) An applicant who is offered accommodation as mentioned in section 193(5), (7) or (7AA) may under subsection (1)(f) or (as the case may be) (g) request a review of the suitability of the accommodation offered to him whether or not he has accepted the offer.
(1B) An applicant may, under subsection (1)(h), request a review of the suitability of the accommodation offered whether or not the applicant has accepted the offer.
(2) There is no right to request a review of the decision reached on an earlier review.
(3) A request for review must be made before the end of the period of 21 days beginning with the day on which he is notified of the authority's decision or such longer period as the authority may in writing allow.
(4) On a request being duly made to them, the authority or authorities concerned shall review their decision."
Submissions
Discussion
Alternative remedy
Was the Defendant required to review its decision of 11 December 2017?
58. In Demetri v Westminster City Council [2000] 1 WLR 772 the Court of Appeal was considering an appeal from the decision of the county court judge striking out the appeal made to him under s.204 of the Act. There, there had been a review followed by a request to reconsider that decision taken on that review. The housing authority agreed to reconsider but then confirmed its previous decision. The unsuccessful applicant was out of the then strict 21 day time limit for appealing against the first review decision and so sought to appeal the reconsidered decision within time. Douglas Brown J. held at p.778:—
"In my judgment this appeal must fail. There is no doubt that a council in its discretion can decide to reconsider or review a review decision formerly given under s.202(1). This was an appropriate case for this council to do so where it was being represented to it that on the original review some material argument had not been considered."
He held, however, that the appeal to the county court lay only against the original decision made on review, not against the reconsideration of that decision.
59. Whilst reminding ourselves that we have not heard full argument on these matters, we nonetheless feel able to say that we are in agreement with those judgments. It seems to us to follow that a housing authority is not bound to entertain a succession of applications for review or for extensions of time for review given that Parliament has circumscribed the applicant's right to seek them. The scheme envisages only one review, or, if the 21-day time limit has expired, one application to extend time for review. That is not to say that a local authority may not choose as a matter of their discretion to entertain such a request for a further review or a further extension of time. This may be granted for sound pragmatic policy reasons to prevent the kind of roundabout applications to which Mr Luba referred, where the disappointed applicant simply goes to the neighbouring housing authority with the result that, if successful, the matter is referred back to the first authority. The authority may choose to reconsider matters of fact or new matters of fact which would lie outside the scope of an appeal to the county court. These are, however, decisions of good housing management and this extra-statutory discretion of the local housing authority is likely to be held to be close to being absolute. An attempt judicially to review a refusal to consider such a further indulgence is likely to receive the same treatment as was meted out in Nacion where Tuckey LJ held at p1100:—
"It is only in a very exceptional case that there will really be any reasonable prospect of interesting the court by way of judicial review to interfere with the exercise of the very broad discretion which the council have, bearing in mind that they exercise it, knowing the circumstances of the applicants, the range and availability of accommodation in their area …"
Lord Woolf MR was of like mind, saying:—
"I have difficulty in envisaging cases where application for judicial review will be appropriate."
Alternative ground for relief
Risk of injustice to Claimant?
Outcome