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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 >> Kelly & Ors, R (on the application of) v Birmingham City Council  EWHC 3240 (Admin) (10 November 2009)
Cite as:  EWHC 3240 (Admin)
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QUEEN'S BENCH DIVISION
33 Bull Street
B e f o r e :
| THE QUEEN ON THE APPLICATION OF NEVILLE KELLY
|- and -
BIRMINGHAM CITY COUNCIL
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165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7404 1424
Official Shorthand Writers to the Court)
Miss Hodgson (instructed by appeared on behalf of the Defendant.
Crown Copyright ©
Mr Justice Hickinbottom:
"(1) A person is homeless if he has no accommodation available for his occupation, in the United Kingdom or elsewhere, which he
(a) is entitled to occupy by virtue of an interest in it or by virtue of an order of a court
(b) has an express or implied licence to occupy, or
(c) occupies as a residence by virtue of any enactment or rule of law giving him the right to remain in occupation or restricting the right of another person to recover possession.
(3) A person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for him to occupy.
(4) A person is threatened with homelessness if it is likely that he will become homeless within 28 days."
Section 176 provides:
"Accommodation shall be regarded as available for a person's occupation only if it is available for occupation for him together with
(a) any other person who normally resides with him as a member of his family, or
(b) any other person who might reasonably be expected to reside with him…"
"If the local authority have reason to believe that an applicant may be homeless, eligible for assistance and has a priority need, they shall secure that accommodation is available for his occupation pending a decision as to the duty (if any) owed to him under the following provisions of this Part."
That duty ceases when the authority's decision is notified to the applicant in writing (Section 188(3)).
"(1) The following have a priority need for accommodation
(b) a person with whom dependent children reside or might reasonably be expected to reside;
(c) a person who is vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason, or with whom such a person resides or might reasonably be expected to reside… "
The Secretary of State may by order specify further descriptions, and has done so in the Homelessness (Priority Need for Accommodation) (England) Order 2002, SI 2002 No 2051, which adds defined 16 and 17 year old children.
(i) An application under Part 7 of the 1996 Act can be in any form, and need not be in writing: R (Aweys and Others) v Birmingham City Council  EWHC 52 (Admin) ("Aweys") at  per Collins J.
(ii) Once an application has been made, the duty on an authority to make enquiries is immediate, in the sense that there is no power to defer making that enquiry: see Robinson v London Borough of Hammersmith & Fulham  EWCA Civ 1122 at  per Waller LJ; Aweys at ; and the Homelessness Code of Guidance, paragraph 6.16.
(iii) In the meantime, if an authority have reason to believe that an applicant may be homeless, eligible for assistance and have a priority need, they are under a duty to provide that applicant with temporary accommodation pending a decision as to what duty to house him (if any) that authority owe the applicant under the provisions of the 1996 Act.
(iv) It was agreed before me -- and properly so -- that the thresholds based on "reason to believe" are low. In respect of the duty to make enquiries under Section 184, that duty arises on receipt of the application "unless the purported application can be shown to be no application", e.g. if it is based on exactly the same facts as an earlier application: Rikha Begum v Tower Hamlets London Borough Council  EWCA Civ 340 at  per Neuberger LJ, and Aweys at . It was -- again, I respectfully say, properly -- common ground between the parties that the threshold for the Section 188 duty is similarly low. That is also confirmed in Rikha Begum at . In considering whether their duty under Section 188 is engaged, the authority's starting point is consequently the information provided by the applicant himself. If that gives rise to reason to believe that the applicant may be homeless, eligible for assistance and have a priority need, then the duty to provide interim accommodation arises. In addition to the phrase "reason to believe", I emphasise the word "may", which again underscores the low hurdle an applicant has to surmount to engage the Section 188 obligation.
(v) The engagement of the Section 188 is, as the Homelessness Code of Conduct says (Introduction, paragraph 15), "an important part of the safety net for people who have a priority need for accommodation and are unintentionally homeless". Any enquiries made before the Section 188 duty arises go simply to the question of whether there is reason to believe that the applicant may be homeless and a priority need for accommodation. Enquiries that go to the different question of whether the applicant is homeless and in priority need are precisely the enquiries required under Section 184, pending which Section 188 provides a right to interim accommodation. An authority cannot defeat the prompt engagement of Section 188 by introducing filters or delays, e.g. by making non-statutory enquiries, or by pursuing courses outside the statutory scheme. In Aweys, the claimants criticised Birmingham City Council for failing to satisfy their obligations under Section 188 in favour of seeking to avoid applicants becoming homeless at all, by (for example) trying to ensure that applicants remained where they were in what was called "the Home Option Scheme". For example, those aged between 16 and 25 were referred to an organisation called St Basils, which provided specialist help and support to help applicants stay in their home or find more suitable housing. Collins J held that such steps could not displace nor defer an authority's obligations under Part 7 of the 1996 Act. He said of the Home Options Scheme at :"It cannot lawfully be used to defer consideration of a homeless application. All steps to avoid homelessness are of course laudable. But any steps must be taken in parallel to the carrying out of the duty under Part 7."
(vi) Once the obligation to provide interim accommodation has arisen under Section 188, it remains on the authority until the authority have completed their enquiry under Section 184 and notified the applicant of the resultant duty to house him, if any.
Part 7 Applications: An Introduction to The Council's Procedure
"To whom it may concern.
I am letting you know Neville Kelly no longer lives at this address. I have kicked him out on 8th Sept."
He also had with him letters from doctors which clearly evidenced his medical condition and diagnoses. Miss Hodgson for the Council accepted that, on the basis of that evidence, there was reason to believe that Mr Kelly was homeless and had a priority need for accommodation because he was a person who was "vulnerable as a result of mental illness or handicap or physical disability or other special reason". That concession was readily and properly made. Paragraph 10.33 of the Homelessness Code of Guidance stresses the care with which an authority needs to consider vulnerability where the applicant is under 25 years of age. On 11 September Mr Kelly was seen by Mr Ashley Clarke. He filled in an Emergency Accommodation Request form. That form marked that Mr Kelly suffered disability as a result of learning difficulty and a medical health problem.
That same day Mr Clarke filled in a "Homeless Application Form - Progress Sheet", which was in narrative form as follows:
"App suffers with ADHD, has provided a couple of letters which are from '05/'06. States what medication he was on, and how severe they thought his condition was. They felt his behaviour was not a result of having a mental illness, and his behaviour was the result of low intelligence. Contacted Learning Difficulties Team. They advised 2066 was last involvement had with him, and confirmed he was on medication at the time. Contacted Dr Kenyon, who confirmed app has no priority need. Discussed circumstances, nothing to suggest he would be vulnerable. Have contacted app and spoke to his mum, and advised he has no priority need. Advised of direct access hostel. Discussed with Colette. TA refused."
"On 10 June 2009, you attended the Northfield Neighbourhood Office requesting emergency accommodation. We accepted interim duty and provided you with a room at the IBIS Holloway Head Hotel. As discussed with you this morning, I have spoken to your mother and I understand it would be safe for you to return to [his parents' address]. I am aware that your parents do not approve of your relationship with your girlfriend, but they are keen for you to return home. The police have not indicated that you would be at risk at your parents' address. As such, we have no reason to believe that you are faced with homelessness. The Council discharged its duty to provide accommodation under Section 188, 190, 193 and 200 of the Housing Act 1996. Your room at the IBIS Holloway Head Hotel will be cancelled as from 12 noon Friday, 12 June 2009."
"On 10 June 2009, you attended the Northfield Neighbourhood Office requesting emergency accommodation. We accepted interim duty and provided you with a room at the IBIS Holloway Head Hotel. I wrote to you on 12 June 2009 to discharge our interim duty. You will recall that I telephoned you that morning, but you terminated the conversation before your options could be discussed. The Community Law Partnership requested that we make further enquiries, which I have now had the opportunity to do. I have, again, spoken with your mother, who is extremely concerned about your welfare and is anxious for you to return home. I have also spoken with your father, who has expressed his desire for you to return home as soon as possible. Both of your parents have confirmed to me that you would be safe to return, and are certain that you know this to be the case. I understand that a family row took place at a barbeque at your parents' address on Sunday, 31 May 2009. I am informed that your girlfriend, [L], was involved with your sister, [J], and that your father tried to separate the two girls. Your parent and [L's] mother have stated there was no violence towards you. You have left [L], and during the following week you spent your time between home and your girlfriend's mother's property, before requesting emergency accommodation on 9 June 2009. As you are aware, your parents do not approve of your relationship with your girlfriend, but they have stated very clearly that you are welcome to return home, but they do not want [L] to visit. The police have not indicated that you would be at risk at your parents' address. Both your father and your sister are cooperating with Bourneville Lane Police Station. As such, we do not accept that you are faced with homelessness, as there is no reason to believe that you would not be safe at your parents' address. Since your parents do not know your whereabouts, they cannot contact you, but I have advised that you are safe an in temporary accommodation. They are very keen to hear from you, and want to make arrangements for you to return home. In the meantime, I have a referral to St Basils, who can help with family mediation and interview you, with a view to assisting you with accommodation in the future. A Homeless Interview has also been arranged for you and my colleague, who will fax the details over to you. The Council has now discharged its duty to provide accommodation under Section 188, 190, 193 and 200 of the Housing Act 1996. Your room at the IBIS Holloway Head Hotel will be cancelled as from 12 noon, Wednesday, 17 June 2009."
"… by finding that [JI] was not homeless before all the necessary investigations, including the homeless interview, had been completed. The [Council] wrongly attempted to discharge interim duty…. The [Council] accepts that it made a mistake of fact but attempted to rectify that error."
On 3 July the Council wrote to JI with a formal Section 184 notification to the effect that they did not accept he was homeless. In addition to their being satisfied that he would not be at risk of violence if he returned home, they said that both of JI's parents had indicated that they would welcome him home, and both his parents and his sister had indicated that he had left home of his own accord. JI, through solicitors, sought a review of that decision on 8 July. As I understand it, that is still pending, although JI's solicitors have lost contact with JI who has not stayed at the accommodation provided for two months.
Discussion and Conclusion
Order: Application granted.