Case law: Accepting a repeat application for assistance with homelessness

Solicitor Carmel Ferguson looks at a recent judicial review into London Borough of Southwark’s refusal to allow an applicant to make a fresh application for homelessness assistance, after the applicant’s original application was unsuccessful.

Article 7 of the Housing (NI) Order 1988 requires that the Housing Executive should carry out inquiries into the circumstances of any person who approaches that body and who appears to be homeless or threatened with homelessness.  Certain individuals may have reasons to make a repeat application for homelessness assistance after originally being found not to have a legal entitlement to this assistance. The legislation places no limit on the number of times an applicant can make a homeless application. Where a person whose application has been previously considered and determined, the housing authority will need to consider whether there are any new facts in the fresh application which render it different from the earlier application.[1]

In this case, the council refused to investigate the circumstances of an applicant who approached it for assistance as the council had previously decided that the applicant was not in priority need and believed that there had been “no material change in circumstances and the facts which led to the decision that she is not in priority need." The applicant applied for a judicial review, which was successful. The High Court held that the council’s decision that the applicant’s circumstances were exactly the same when the fresh application was made was “irrational or unreasonable”

Fresh medical evidence not properly considered by council

The applicant, Ms Hoyte, was aged 58 and has a long history of mental health problems and a history of depression. She had no home and was moving between her two daughters’ homes, sleeping on their sofas.

Ms Hoyte made a third application for assistance under the English homelessness legislation on 1^st March 2016, having previously requested assistance in June 2015 and in October 2015.The housing authority refused the application, concluding that Ms Hoyte’s circumstances had not altered in the intervening months.

As part of her third application, Ms Hoyte had submitted new medical evidence from her GP and a mental health nurse, which stated :

“My view after the consultation is, Jennifer is suffering from depression. She is very low in mood and has active suicidal thoughts with plausible evidence of plan and intent. Her current stressor is undeniably her accommodation situation. The threat of eviction in under a week with no viable option to street-homelessness is clearly a huge stressor. She reports continuous thoughts about ending her life."

Ms Hoyte claimed that the council was wrong in law in refusing to accept the application and that they ought to have made inquiries in to her vulnerability, in light of the new facts existing at that time.

However, the council concluded that this fresh medical evidence did not constitute a change in circumstances, stating:

“…that whilst it may be the case that your client made a visit to her GP after the review decision was issued, who in turn referred her for further treatment, the fact that she has a history of suicidal ideation was previously known to us as well as the fact she has a history of suffering from other mental health problems, including depression."

Decision quashed by judge and referred back to the council

The judge quashed the council’s decision and referred the matter back to the housing authority for consideration.  The judge stated:

“There was a new development in the form of events of 24^thFebruary and those events resulted in new evidence from those responsible for the claimant's primary healthcare. That evidence meant that the claimed new facts could be realistically asserted.[The mental health nurse] Mr Sarfo said, having examined the claimant, that he thought that there was "plausible evidence" of suicidal plan and intent.

… On any reasonable interpretation, when tested against the facts as the defendant had found them to be at the time of the review, the new application could not be considered by any reasonable authority to be based on "exactly the same" facts.

…Having placed heavy reliance on its interpretation of the GP's views as recorded in the notes, it was irrational to say that the facts were exactly the same when the GP's views had clearly changed.”

The Court, in its deliberations, considered the case of R v Harrow LBC ex p Fahia [1998] 1 WLR 1396 where it was said that an applicant cannot make a further application based on "exactly the same facts" as his earlier application. The "exactly the same facts" test was applied in R(Griffin) v Southwark LBC [2005] H.L.R. 12 and was crystallised by the Court of Appeal in Rikha Begum v Tower Hamlets London Borough Council [2005] 1 WLR 2103

The court’s powers allow it to refer the matter back to the council for a fresh decision.  This does not guarantee that Ms Hoyte’s application for assistance will now be successful, but this additional evidence must now be considered in determining whether Ms Hoyte has a priority need for assistance.

Learning points for advisers

As a UK High Court decision, the case is not binding on Northern Ireland courts. However, it will be persuasive as no Northern Ireland court has handed down a judgment on the issue and the legislative provisions are very similar.

This case is a useful reminder for advisers, that if the Housing Executive refuses to carry out a homeless assessment it may be in breach if its statutory duty. Because no decision has been made, the applicant does not have an opportunity to request a review or to pursue an appeal to the County Court. The only legal option available to the applicant is to apply for a judicial review on the grounds that the Housing Executive’s refusal to carry out an assessment is irrational or unreasonable.

The Housing Executive should carry out a fresh assessment if the applicant can show that the new application for assistance has been triggered by a change in circumstances and is not based on exactly the same facts taken into account when making a decision on the original application. 

There is no guarantee that a fresh application for assistance will be successful, but the Housing Executive must carry out the proper inquiries and provide a written decision.

This judgment is also useful in its consideration of how a housing authority should  consider medical evidence. The judge refers to the case of Osmani v Camden LBC [2004] EWCA Civ 1706  in which Auld L.J. said:

"although authorities should look for and pay close regard to medical evidence submitted in support of applicants' claims of vulnerability on account of mental illness or handicap, it is for it, not medical experts, to determine the statutory issue of vulnerability"

“The authority must make its own appraisal of the opinions expressed in light of all the material. There is no question therefore of "rubber stamping" any medical opinion… medical material is simply part of the pool of material which is available to the decision-maker.

Further resources to help advisers

In 2014/2015 only 56% of the households making homeless applications were found to be entitled to a full duty under the homelessness legislation.  In the remainder of cases, applicants were found to have failed one of the four tests for homelessness.  Applicants who fail any of these tests have a right to have this decision reviewed by a more senior member of staff at the Housing Executive and this decision can often be successfully overturned by an experienced adviser who is familiar with caselaw in this area.

Housing Rights will run its “Challenging Homelessness Decision” training course on 22 September. This course will ensure that participants have the knowledge and skills to challenge negative decisions.