Case No. CO 1276‑97
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(CROWN OFFICE LIST)

 
Royal Courts of Justice
Strand
London WC2

Date: Friday, 23rd May 1997

B e f o r e:

MR JUSTICE LATHAM

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REGINA

‑v‑

THE LONDON BOROUGH OF CAMDEN

ex parte Mohammed

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(Computer‑aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited, 180 Fleet Street,
London EC4A 2HD
Telephone No: 0171 831‑3183
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Official Shorthand Writers to the Court)
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MR S KNAFLER (instructed by Bindman & Partners, London WC1X 8QF) appeared on behalf of the Applicant.

MR C BAKER (instructed by Solicitors to the London Borough of Camden, London WC1H 9LP) appeared on behalf of the Respondent.
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J U D G M E N T (As Approved)
MR JUSTICE LATHAM: This is an application for judicial review of a decision of the London Borough of Camden of 15th April 1997, not to continue to provide the Applicant with interim accommodation pending determination of her review of the refusal of her homelessness application of 1st April 1997.
      The Applicant is a married lady who had, on 16th December 1996, married a Mr Saggid Sajjad.  She was at the time living with her two young daughters, Zara and Zerena in council accommodation which she surrendered when she moved to live with her husband.
      There is no doubt that problems arose between her husband, herself and her children and, between December 1996 and February 1997, she made allegations of violence by her husband.  The result of which was that on 28th January 1997, she applied for housing assistance.  On 30th January 1997, interim accommodation was found for her and her children after a particular incident of violence at which the police had attended.
      The Respondent Council thereafter considered her application to be treated as homeless and in priority need.
 
       On 1st April 1997, the Respondent Council gave its decision that she was not homeless, as she had accommodation which was available to her at the former matrimonial home.  The reason given was:
"there is accommodation available and reasonable for you and your family to return to at the above address. This decision means that the Council has no duty to provide accommodation to you and your family." 
      She consulted solicitors who immediately indicated that the Applicant wished to have a review of the decision and asked for interim or temporary accommodation pending the review.
      The Respondent Council refused to extend interim accommodation despite a detailed letter setting out the Applicant's case on 15th April 1997.
      The Respondent Council in coming to that decision came to the conclusion that the Applicant did not fall within its policy for the provision of interim or temporary accommodation which, insofar as it relates to those such as the Applicant, reads as follows:
"No interim or temporary accommodation will be provided whilst the appeal is being considered unless;....
There are exceptional reasons.  The Principle Assessment Officer or other manager will consider these on receipt of the appeal." 
      There is no indication in the policy document what will or will not be considered to constitute an exceptional reason. 
      The application for judicial review is based upon the assertion that that policy is an unlawful policy. There are also other grounds upon which the Applicant seeks to challenge the decision, in particular, that the decision followed the failure of the Respondent Council to provide any or any adequate reasons for the underlying decision that she was not homeless.
      To understand the arguments it is necessary to deal with the statutory structure which, at the relevant time, was to be found in the Housing Act 1996.  It is perhaps helpful to say, at this stage, that the procedures set out in the Housing Act 1996 are significantly different from the procedures which were well‑known to this Court under the pre‑existing housing legislation insofar as it related to those claiming to be homeless.
      The 1996 Act unlike its predecessors makes provision for a formal process of review by the housing authority and for an appeal in point of law from such a review to the county court.  In someways, however, the requirement of the procedures remain the same.  For example, in the first instance by section 184, the local housing authority is required to carry out the familiar process of inquiry as to whether or not an Applicant may be homeless and/or threatened with homelessness; whether  he is eligible for assistance and, if so, whether any duty is owed under the Act.
      Subsection 3 reads as follows:
"On completing their inquiries 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." 
      In the time during which those enquiries are proceeding, the local housing authority is under an interim duty to accommodate any person who it has reason to believe may be homeless, eligible for assistance and have a priority need.  It was pursuant to that duty that the Applicant here was housed at the end of January 1997.
      Subsection 3 reads as follows:
"The duty ceases when the authority's decision is notified to the applicant, even if the applicant requests a review of the decision (see section 202).
 
The authority may continue to secure that accommodation is available for the applicant's occupation' pending a decision on a review." 
      Section 202 provides that an Applicant has the right to request a review of various decisions including the decision in question in this case.
      Once the review has been completed, if it is adverse to the Applicant, the Applicant has the right under section 204 to appeal to the county court on any point of law, and if there is such an appeal, the local  housing authority may continue to secure that accommodation remains available to that person pending determination of the appeal.  It follows, that both pending a review and pending an appeal, the local housing authority is given a discretionary power to provide interim housing.  The Act itself gives no guidance as to the way in which that discretionary power is to be exercised.  It is accepted, however, on behalf of the Respondent Council that as in the case of any discretionary power, discretion is not an unlimited discretion, but it must be a discretion which is exercised in accordance with the perceived purposes of the statute.
      The context in which the power is given is that the Applicant has a right of review and a right of appeal which is unfettered save, of course, in the latter case that it must be on a point of law.
      Section 169 of the Act empowers the Secretary of State to give guidance in relation to the exercise by local housing authorities of their functions under the Act.  The only reference to the duty to secure interim accommodation is contained in paragraph 20.1 of the Code of Guidance insofar as it relates to the allocation of housing accommodation and homelessness.
      The relevant passage in that paragraph reads as  follows:
"Should the decision be that no further duty is owed, the authority will wish to give the applicant reasonable notice to quit the accommodation provided under the interim duty.  However the local authority can, if they wish, continue to secure that the accommodation is available pending the outcome of a review." 
      It was clearly the view of the Secretary of State, for whatever that is worth in this context, that the discretion was a wide discretion.
      The Applicant argues before me, in these proceedings, that the Act could not have intended that the position of a person seeking relief from a decision taken by a local housing authority, adverse to him or her, should be worse than had been the position prior to the passing of the 1996 Act.  It is said that the clear practice that had developed over the years was that if an Applicant sought and obtained leave to move for judicial review of an adverse decision by a local housing authority, the courts would almost inevitably grant interim relief by way of ensuring that the Applicant retained accommodation.
      A useful statement of that practice is contained in the judgment of Sir John May in R v Cardiff City Council ex parte Barry 22 HLR 261 at 263 where he said as follows:
"In my judgment, although it cannot be a general rule in every case, such as in this and in Hammell's case, it  seems to me that where a court concludes that a local authority's decision under section 62 and 63 of the Housing Act 1985 is or may be susceptible of challenge by way of judicial review, the court as a usual concomitant of granting leave to challenge such a decision should preserve the 'ring' as it were, and enable the applicant to stay in any accommodation which he or she may be in pending the ultimate decision on the judicial review proceedings." 
      The Applicant, therefore, asserts that the policy expressed by this council must be an unlawful policy insofar as it purports to restrict the exercise of the policy to those cases where exceptional reasons can be shown.  Her counsel makes the point that, in any event, the phrase "exceptional reasons" does not adequately describe a policy but merely a restrictive approach, and there is nothing in the Act which indicates that there is or should be a restrictive approach to the exercise of this discretionary power.
      The problem of course in this particular case, as in all cases that will arise under the new Act, is that the person who is seeking review is not seeking judicial review as a result of having been given leave; the person seeking review is exercising a right which can be exercised by every person in respect of whom an adverse decision has been made.
      The decision itself, as to whether or not to exercise the discretionary power in favour of the Applicant, is being exercised by the local housing  authority whose function is to hold the balance between the homeless as described in the speech of Lord Lowry in the case Din v Wandsworth London Borough Council [1983] 1 AC 657 at 674.  Where he said:
"The real contest here is not between the homeless citizen and the state: Duty of housing authority to hold the balance in one homeless person exercise fair discretion courting to law your Lordship task to declare more relevant to this case:" 
Clearly, that statement was in the context of a decision on an application by a person who was asserting that they were homeless, but it does point out the particular status which the local housing authority, the Respondent Council in this case, holds and, in particular, the problems which it faces.
      As I have indicated, and I accept the Applicant's argument in this respect, the Act does not suggest prejudice against granting interim relief, nor does it express prejudice in favour of granting interim relief. Looking at the structure of the Act, it seems to me to follow, from the unfettered right of an Applicant to ask for a review, that the Act clearly did not envisage that the discretionary power would be exercised as a matter of course in favour of such a person.  Indeed, one would be surprised if anyone suggested that that was an appropriate argument.  It seems to me, that the proper approach to this particular problem is to look at the  situation as it actually exists on the ground in order to put the policy in its proper context of fact as well as law to determine its validity.
      The evidence that is before this Court from Christine Winter is that between 1st January 1997 and 31st March 1997, there were 51 reviews dealt with of which only four were successful.  It seems to me, in deciding how to approach the policy, that is the most useful piece of background information which one can have, for this reason: it immediately indicates, as it seems to me, the true nature of the problem, namely that there are very many requests for review of which only very few are found at the end of the day to have been meritorious.  In those circumstances, it seems to me, that the use of the phrase "exceptional reasons" can properly be understood to reflect that reality.
      The important question is whether, in applying that phrase, it is apparent that the officers of the Respondent Council have either failed to take into account material considerations, have taken into account immaterial considerations or have otherwise displayed irrationality.  The need that I identify as the underlying requirement of the exercise of this discretion is to keep, on the one hand, well in mind the objective of fairness between those who are homeless in  circumstances where the local housing authority has in its first decision decided that there is no duty to the particular Applicant and, on the other hand, to give proper consideration to the possibility that the Applicant may be right, and that to deprive him or her of accommodation could result in a denial of an entitlement.
      In carrying out that balancing exercise, it is clear that there are certain matters which will always require consideration.  First, the merits of the case itself and the extent to which it can properly be said that the decision was one which was either apparently contrary to the merits of the case or was one which required a very fine balance of judgment which might go either way.
      Second, it requires consideration of whether there is any new material, information or argument put before the local housing authority which could have a real effect upon the decision under review.
      Finally, it requires consideration of the personal circumstances of the Applicant and the consequences to him or her of an adverse decision on the exercise of discretion.  It may well be that in some cases other considerations may prove to be relevant.
      The question, in this case is whether those  considerations where, in fact, borne in mind and properly given effect to by the Respondent Council.  I say that because the statement of policy which uses the phrase "exceptional reasons" seems to me, on the material that I have indicated, to be of itself a perfectly rational way of describing the approach.  The particular matters which were taken into consideration in the present case were, on the affidavit evidence of Lesley Anne Leggett, the merits of the case and the personal circumstances of this Applicant.  I can see no basis upon which it could be argued, that
Miss Leggett misdirected herself in her approach to either of those considerations.  From the evidence that she had, it was apparent that the Applicant had put forward inconsistent accounts as to the behaviour of her husband such as to throw real doubt upon her account.
      The problem, it seems to me, is that in the letter of 15th April 1997 from the Applicant's solicitors, the solicitors had written as follows:
"In the light of our client's instructions we do not believe that the authority has carried out its proper duty to investigate the case and obtain proper evidence from the police.  In the event that they have obtained evidence which they feel is adverse to Mrs Mohammed's case they have not put this to our client and given her an opportunity to comment on it." 
      That was a very fair point.  The position was that the Respondent Council had come to adverse conclusion as  to the Applicant's account, based upon what was said to be discrepancies, but nowhere in the papers can I find any attempt by the Respondent Council to put those discrepancies to the Applicant to see whether or not she could answer them, or to see whether or not they were based upon a misunderstanding or misapprehension.
      It is trite law, that in the context of the inquiries that the local housing authority has to make under the relevant statutory provision, in this case section 184, it should give the Applicant a proper opportunity to answer criticisms that may be made about his or her account.
      A good example of the Court's approach is in the judgment of Simon Brown J, as he was, in R V Gravesham Borough Council ex parte Winchester 18 HLR 207 at 215 where he said:
"The applicant must be given an opportunity to explain matter which the local authority is minded to regard as weighing substantially against him." 
      It follows that the fact that the applicant had not been given an opportunity to answer the concerns required consideration by the Respondent Council and a reasoned response.
      It is true that in the affidavit of Lesley Anne Leggett she says, at paragraph 14:
"I took full account of the letter from Bindmans dated 15 April 1997 and all of the matters set out therein  before reaching my decision based upon the entire circumstances of the Applicant's case." 
      In my judgment, that is an inadequate response to the point that was being made on behalf of this Applicant which was, a point of some substance.  It follows, that in relation to this particular decision, the Respondent Council did fall into error in failing to take into account a relevant and material consideration.  Further, the original decision was tainted by unfairness; and the refusal to reconsider by bearing the applicant's explanation when the unfairness was identified compounded that unfairness.  The consequence is that the decision under challenge must be quashed.
      I wish to deal, however, before concluding this judgment with two further matters.  Firstly, in the affidavit of Christine Winter, she explains the Respondent Council's approach to the determination of whether or not there are exceptional reasons in any given case.  She says as follows:
"Exceptional reason cannot be defined, and I would not seek to define them.  Examples might include borderline cases or where there would be particular prejudice to the applicant.  As a matter of practice exceptional circumstances have, in relatively short time since the policy came into being, been found in a number of situations." 
      It will be seen from my views as to the relevant  considerations.  To be taken into account by the local housing authority, that this is an unexceptionable but incomplete account of the way in which the matter should be approached.  It is necessarily incomplete as Christine Winter herself accepts.  As I have said earlier, in this judgment, the considerations that I have set out are not intended to be, in any sense, exhaustive.
      It does, however, seem to me, that to restrict consideration of the merits of the application for review to borderline cases is, for the reasons that I have already given, too narrow an approach ‑ borderline cases will undoubtedly fall within one of the categories the category I have identified, but there will be others, the general nature of which I have sought to explain.
      The second point that I wish to deal with arises out of the argument on behalf of the Applicant, that the letter setting out the decision of the Respondent Council of 1st April 1997, was deficient.  There is no doubt that it was.  It did not, as it should have done, identify the basis upon which the Respondent Council had come to the conclusion that the Applicant was not homeless except in terms which in no way shed light on the reasoning. 
      The question arises as to the Court's approach to such defective reasoning in the context of the new procedures under the 1996 Act.  In the context of a review, it seems to me that the failure of a Respondent Council to give reasons to which the Applicant is entitled is clearly a breach of the obligation under section 184(3) of the Act which could justify an application to this Court for relief.  However, it seems to me, that this Court should be slow to intervene, unless it is clear that the process of review was being rendered capable of being described as "unfair" as a result of a refusal by the local housing authority to put right a deficiency in such a letter.  Generally speaking, the Court would wish to ensure that if the matter was capable of being put right to enable a fair hearing of the review it should allow the process to be completed rather than interfere officiously merely in order to assert a deficiency which was capable of being remedied.  I say that simply in order to indicate, that whilst I do not wish in any way to detract from the importance of a local housing authority giving full and proper reasons under section 184(3), the purpose to be served by the giving of such reasons must be kept well in mind, which is to enable the Applicant to put before the local housing authority a proper case based upon a  full understanding of the council's previous decision to refuse accommodation.
      I would hope, therefore, that if there are cases in the future where defective reasons are given in circumstances such as this, a prompt request for details will be made by the Applicant or those acting on the Applicant's behalf in order to enable the matter to be rectified if the Respondent Council is minded to or capable of rectifying it.
      For the reasons I have given, I have concluded that the decision challenged is, in fact, unlawful and should be quashed.  The question then arises as to any further relief.
 
MR BAKER: My Lord, might I clarify my instructions? (pause) I just indicate that the Respondents clearly will reconsider, I am told, they will undertake to continue accommodation for the Applicant and her children pending the review.
 
MR KNAFLER: My Lord, I am very glad to hear that and I am obliged to my learned friend and those instructing him.  As far as concerns any further relief, your Lordship's judgment is just sinking in, but as far as concerns declaratory relief, given the details, all of it very helpful is in your Lordship's judgment.  Given the close reasoning, my initial impression is that a declaration might be difficult to phrase in such a way as to do justice to the judgment, and my initial view is that the judgment could just stand as it is.  Perhaps I can ask for liberty to apply in case those instructing me take a different view over the next two days.  My initial impression is that we ought not to seek any declaration.
 
MR JUSTICE LATHAM: I think it might be difficult to  frame one, other than in such specific terms relating to this case that you simply underline the fact that I have quashed the decision.
 
MR KNAFLER: My Lord, yes.  One feels a certain reluctance in cases which raise issues of general importance to practitioners in this field and which needed to be decided in any event, but I do ask for costs because, at the end of the day, there was an individual decision here in relation to this particular Applicant which, although the legal arguments underline the case, were finally balanced either way.  In the instant case, the position was, in my respectful submission, pretty clear and I have the interest of the Legal Aid Board to protect, which is, these days, a matter of more importance than it used to be.
 
MR JUSTICE LATHAM: Yes.
 
MR BAKER: My Lord, can I first make the observation that in the event this case has turned upon a point not effectively raised in the amended Form 86A‑‑‑‑

MR JUSTICE LATHAM: I am rather conscious of the fact that it went in a slightly different way.  In some part I upheld your policy statement while asserting that I am not quite clear that it can properly be called "a policy".
 
MR BAKER: My Lord, my submission would be, in all the circumstances, that it might well be fair either to make no order or to only make a partial order in favour of the costs, bearing in mind the way in which these proceedings have developed and the interest that has been involved.
 
MR JUSTICE LATHAM: Yes.  I am grateful Mr Baker.  I propose to make an order that the Respondents pay the Applicant's costs.  It is based on this proposition: it seems to me, that underlying the case here was the failure to give an opportunity to the Applicant to explain the concerns which the Council had, and which seems to me to have been a fundamental difficulty which has to be faced by the Council.  So I make an order for costs for that reason which was one which was underlying part of Mr Knafler's argument.
 
MR KNAFLER: I also ask for an order for legal aid taxation? 
 
MR JUSTICE LATHAM: Yes.  Mr Knafler do you want to have liberty to apply?  Would you consider it satisfactory just to leave it for the moment?  Liberty to apply in relation to declaratory relief.  I would have thought it probably not an appropriate course to take in this case.
 
MR KNAFLER: On reflection, my instructing solicitors will take the same view as me.
 
MR JUSTICE LATHAM: It would only add to costs which I am not anxious to do.
 
MR KNAFLER: Yes.