Case law: Decision not to accept new homelessness application after change in circumstances was irrational

Solicitor Carmel Ferguson considers a decision of the UK High Court relating to a local authority's refusal to carry out a homelessness assessment. 

In this case  R (on the application of Hindis Abdulrahman) v London Borough of Hillingdon  [2016] EWHC 2647 Admin, the applicant sought a judicial review of the London Borough of Hillingdon's refusal to carry out a homeless assessment. The council's refusal was based on their position that there had not been a significant change in circumstances since the applicant's most recent application for assistance under the homelessness legislation, which had been turned down on intentionality grounds.

The applicant had made a previous homeless application along with her husband, who then lived with her, stating that their 7 children would be living with them. The application was refused as it was held that although the applicant was homeless, eligible for assistance and had a priority need for housing, that they were intentionally homeless due to alleged breach of tenancy agreement in their previous shorthold tenancy.

The applicant’s husband returned to live in Somalia. The applicant made a number of attempts to present as homeless but the Council refused to accept the applicant as they said the applicant was based on the same facts as the previous application. The applicant applied for a Judicial Review of the decision to refuse to accept the application.

The applicant relied on two grounds:

1. The defendant adopted the wrong test when considering the claimant's application.
2. In the event that the defendant applied the right test, the decision making process was irrational.

Did Hillingdon apply the wrong test?

The court dismissed the first ground.It held that it was not in dispute between the parties that the test to be applied is that set out in Harrow LBC ex parte Fahia [1998] 1 WLR 1396 and Rikha Begum v. Tower Hamlets LBC [2005] 1 WLR 2103, namely whether the application is based on exactly the same facts. In considering the decision letter the court held that:

In my judgment it is not appropriate to subject a local authority's decision not to accept an application under Part VII of the 1996 Act to the same sort of analysis as may be applied to a contract drafted by solicitors, to an Act of Parliament, or to a court's judgment. It is also important that the letter or letters by which such decisions are communicated should be considered as a whole.

In this case the letter had referred to the guidance derived from Rikha Begum and stated: “The facts of your client's case are exactly the same as they were when she made a joint application with her husband in 2013. The reason for homelessness remains the same”.The court was satisfied that the housing authority had applied the correct test.

Was the decision making process irrational?

In considering the second ground of the application, the court found that the applicant had identified two new facts:

• that her husband had left her, and
• that three of her nine children were no longer residing with her.

These facts could properly be said to be new and to be relevant. When the applicant had made her previous application she was living with her husband and they were joint applicants. The reduction of the number of people requiring housing was a new fact which was relevant to an application for housing assistance. The court concluded:

It was irrational for the Defendant to conclude that the April 2016 application was based upon exactly the same facts as the October 2013 application. The facts were clearly different. In particular the identity of the applicant changed from a joint application from the Claimant and her husband to the Claimant alone, and the number of people seeking assistance had changed, in that assistance was no longer sought by the Claimant's husband and three of the Claimant's nine children. Both those facts are relevant to an application made under [the Housing Act]

Ground 2 of the application was therefore successful and the decision was quashed.

Relevance of this judgement to Northern Ireland

A UK Court of Appeal judgment is “persuasive” in Northern Ireland courts. This means that although it is not binding, it generally would be followed by Northern Ireland court unless the Northern Ireland Court of Appeal had made a contrary finding.

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 of 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 applicable legislation in Northern Ireland is Article 7 of the Housing (NI) Order 1988, rather than the Housing Act 1996 which applies in England and Wales. Northern Ireland legislation should be referenced rather that UK legislation.

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.