Case law: Can a decision on homelessness be revoked?

A recent English High Court has provided some interesting observations in respect of the circumstances as to when a homeless decision can be revisited. Although the English position has variances to the law in Northern Ireland (NI), it does provide some useful guidance, and allows us the opportunity to look at aspects of the law in NI that are of relevance.

The English High Court has recently provided judgement in the case R (oao Sambotin) v London Borough of Brent (2017) EWHC1190 (Admin), dealing with an important practical issue regarding assessments of homelessness Within the context of Judicial Review the Court was asked to consider whether a local authority, once it has accepted a person as eligible for homeless assistance, can subsequently withdraw its decision.

Application for assistance with homelessness

The homeless applicant was a Romanian national and came to the UK in 2013 for the purpose of work. While on holiday in Romania in September 2015, he was involved in an accident, which resulted in serious injuries that left him wheelchair bound. The applicant returned to the UK in February 2016. The applicant was unable to resume his previous private rented tenancy and requested assistance as a homeless person in August 2016.

The applicant’s initial application for assistance was made to the London Borough of Waltham Forest (Waltham Forest). Waltham Forest found the applicant ineligible for housing assistance pursuant to Section 185 of Housing Act 1996. The NI equivalent to the Housing Act of 1996 is the Housing (NI) Order 1988. Many of the homeless provisions mirror the English legislation; however, there are some differences in respect of eligibility, so this case should be viewed as informative rather than as a precedent to be relied upon in NI.

The applicant proceeded to move to the London Borough of Brent (Brent) and in December 2016 requested and assessment for homelessness from this local authority. The applicant made Brent aware of his previous application with Waltham Forest. On 30 January 2017 the applicant was issued a written decision by Brent which found that the applicant was homeless, eligible for assistance, in priority need and not intentionally homeless.

Brent found that the applicant did not have a local connection with the borough and made a referral to Waltham Forest, in accordance with Section 198 of Housing Act 1996. As Northern Ireland has a single housing authority tasked with dealing with homelessness, we do not have similar referral processes.

Waltham Forest subsequently made representations to Brent that the applicant was not eligible for housing assistance.  Brent proceeded to withdraw their section 198 referral to Waltham Forest and subsequently issued correspondence to the applicant informing him that he was ineligible for housing assistance.

The applicant’s statutory right to review persisted, which he exercised. The applicant also requested that temporary accommodation be made available. This request was refused.

In additional to commencing a statutory review, a Judicial Review pre-action letter was issued on the basis that the Council had no power to re-open the homeless decision they had made on 30th January 2017

The Council argued in its response: “that it was permissible for a local housing authority to “revisit and change” an earlier decision in certain circumstances one of which was that the earlier decision had “resulted from a fundamental mistake of fact” on the part of the authority”, (para 13). However, the mistake was not specified.

Judicial Review appropriate when alternative remedies available?

It is firstly important to note that when Judicial Review proceedings progressed it was argued by the Council that as an alternative remedy existed, namely the right to a statutory review of the homeless decision, then Judicial Review proceedings should cease and the remedies sought be refused.

Presiding over the case Sir Wyn Williams emphasised that “the court retains a residual discretion to entertain a claim for judicial review notwithstanding the existence of alternative remedies”, [para 17]. The court found that the case raised a discrete point of law which required addressing and the Judicial Review proceedings were the most efficient way to ensure the interests of justice were met.

Can the Council re-open an application?

During the hearing Brent Council accepted that it would only have power to re-open the homeless decision and find the applicant not homeless in very limited circumstances, if it had completed their enquiries and made what it termed “final decisions” in accordance with the legislation. However, it was Brent’s argument that they had not made all relevant “final decisions” under the Act, because it had referred the application to Waltham Forest.

Brent sought to rely upon the decision of Crawley BC v B (2000) 32 HLR 636. In respect of which Sir Williams surmised:

“I am prepared to accept that the decision in Crawley provides broad support for the proposition…. that a local housing authority is entitled to revisit a decision which it has communicated to an applicant for housing assistance in circumstances where either (a) it has not completed its enquiries under section 184 of the Act, or (b)it has made no final decision as to the nature of the duty it owes to an applicant.” [para 31]

The Crawley case provides the example of such, where an authority has issued a negative homeless decision, but has not made enquiries into every hurdle necessary, due to making a decision at an early stage that the applicant was not homeless, or not in priority need.

However, the Court did not accept that such circumstances were applicable in this case:

“The terms of the letter of 30^th January 2017 from the Defendant to the Claimant could not be clearer. The letter records, in terms, that the Defendant had satisfied itself that the Claimant was homeless, that he was eligible for assistance, that he had a priority need and that he was not homeless intentionally. In my judgement it is crystal clear that it had completed the enquiries mandated by section 184 of the Act.” [para 32]

The Council sought to rely on the basis that a local connection referral had concurrently been made to Waltham Forest, and argued that until a decision had been made on the referral that there had been no final decision made in respect of the application.

The Court did not accept this argument. Although a referral may be disputed by the receiving Council, the only issue that requires resolution at this time is which authority will ultimately impart the duty, not whether a duty is owed at all. This decision has already been made.

Sir Williams concludes on this point:

“I have reached a clear conclusion that the evidence establishes that the Defendant completed its enquiries on all matters relevant to establishing the duty, if any, which it owed the Claimant…and further, it had in substance made a final decision as to the duty owed. That final decision was communicated to the Claimant by letter of 30 January 2017.” [para 41]

When can a local authority revisit a decision on homelessness?

The Court confirmed that a local authority may revisit a decision in very limited circumstances, namely in the event of fraud or deception on the part of the Claimant which induced the decision, or if the authority in making a decision proceeded “from a fundamental mistake of fact”, as per Porteous v West Dorset DC (2004) HLR 30.

The Council accepted that there was no fraud on the part of the claimant, but sought to argue that their decision was brought about by “a fundamental mistake of fact.”

This was not accepted by Sir Williams:

“On the evidence before me all material facts were provided to the Defendant prior to its decision of 30 January 2017. In particular, the unchallenged evidence of the Claimant is that the Defendant was provided with a copy of the decision by Waltham Forest to refuse assistance. The reality of this case, in my judgement, is that if any mistake was made by the Defendant it was a mistake that occurred by reason of a failure on its part to properly apply the eligibility criteria for assistance to the facts disclosed by the Claimant.” [para 46]

Such a mistake is not a mistake of fact and does not permit the revisiting of a homeless decision.

The Court proceeded to quash the decision issued by Brent on 10 February 2017 and held that the first decision of 30 January 2017 persists. The Court found that Brent have owed a duty to secure accommodation to the applicant since the date of the first decision and will continue to do so until the issue of referral is finalised.

Northern Ireland – Reassessing eligibility due to unacceptable behaviour and revisiting homelessness

This judgement provides an opportunity to review circumstances when a decision on the duties owed to a homeless person may be revisited under the law in Northern Ireland.

The Northern Ireland Housing Executive (NIHE) has a duty under the Housing (NI) Order 1988 (the Order) to assist persons who are unintentionally homeless and in priority need. As in England, this duty is subject to the test of eligibility, being persons who do not meet certain immigration criteria, or have not been involved in unacceptable behaviour.

The Order enabled NIHE to treat “applicants” as ineligible for assistance on the basis of unacceptable behaviour. Significantly the term “applicant” being included with the legislation, meant that the NIHE could only treat an individual as ineligible based on behaviour up until the point of application for assistance.

The government in NI appeared to find this an unsatisfactory position, and took steps to address this by bringing forward an amendment under the Housing (Amendment) Act 2010, which provides that NIHE can treat “persons” rather than “applicants” as ineligible for assistance. It was believed that this amendment would mean that person may be treated as ineligible and therefore not eligible for assistance at any stage up to the allocation of accommodation.

However, Article 7A(5) of the Housing (Northern Ireland) Order 1988 continues to read as follows:

“The Executive may decide that a person is to be treated as ineligible for assistance under this Part if it is satisfied that—

 (a)he, or a member of his household, has been guilty of unacceptable behaviour serious enough to make him unsuitable to be a tenant of the Executive; and

(b)in the circumstances at the time his application is considered, he is unsuitable to be a tenant of the Executive by reason of that behaviour.

As a corollary it remains a valid interpretation that any decision to treat a ‘person’ as ineligible must be taken while their application is still under consideration. This interpretation would undermine the legislative amendment made in 2010.

In December 2013 the Department for Social Development, published plans for new housing legislation which would make new provisions for dealing with anti-social behaviour. These included proposals to further amend the 1988 Order to remove any reference to “the circumstances at the time the person’s application is considered”, to allow for the reassessment of homeless applicants’ eligibility up until they have been allocated a tenancy.

In June 2015 the Department decided not to proceed with such an amendment at that time, so a more concise Bill could be drafted and achieve Assembly passage within the remaining time available to the Assembly.  The Housing (Amendment) Act 2016 was subsequently introduced. This Act dealt with the issue of facilitating the sharing of information in relation to anti-social behaviour, and did not, in the end, make any changes to the eligibility test. As such, advisers need to studiously consider any decision whereby a person’s Full Duty Applicant status is revoked due to a finding that the person is no longer eligible for assistance because of anti-social behaviour. Housing Rights will be interested in assisting with any such case.