Law Report: Homeless policy was an abuse of power: Regina v Tower Hamlets London Borough Council, Ex parte Khalique: Queen's Bench Division, 10 March 1994

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A policy allocating priority for council accommodation for the homeless which was determined by a group of councillors which did not possess the power to decide anything on the council's behalf was a grave abuse of power and unlawful.

Mr Justice Sedley declared that the council had acted unlawfully in treating the applicant's case for housing as 'non-active' at any time after its decision that the applicant was homeless, in priority need and had not become homeless intentionally.

Pending the provision of suitable settled accommodation, the applicant was provided in 1987 with temporary accommodation. The council's accounts showed the applicant had increasing rent arrears, but housing benefit which was not credited to the applicant's account would have covered most of the arrears.

In 1993 the applicant was told that in accordance with the arrears policy pursued by the council the applicant had been suspended from the active rehousing list.

Two days before the hearing for judicial review of the council's refusal to secure permanent accommodation for the applicant, the council decided that the applicant's case for housing was 'live' and was at the top of the four bedroom queue for accommodation.

Robert Latham (Mullinger Banks) for the applicant, Ashley Underwood (Council solicitor) for the council.

MR JUSTICE SEDLEY said that the duty to provide 'settled' accommodation could lawfully be discharged in stages, provided that at each stage the accommodation was 'suitable'. A time must come when it became unreasonable, and contrary to the policy and objects of the Housing Act 1985, that a person to whom a priority housing duty was owed was still in temporary and therefore unsettled accommodation. It was sufficient if, pending the provision of suitable settled accommodation, other suitable accommodation of a temporary character was provided, so long as the entitlement to settled accommodation was not so deferred as to frustrate the purpose of the legislation nor deferred for some improper or illicit reason.

It would be invidious for the local authority and unjust for those with housing rights under the legislation if the authority were entitled to pick and choose among persons who in law ranked equally for statutory rights and differed only in the extent of their need and when their rights arose.

If a tenant did not pay rent, the law prescribed other consequences subject to other powers and discretions. It did not allow deferment of a housing entitlement as a form of penalty or as a discretionary handicap.

The council had within it the homelessness board, which was not a committee or sub- committee of the council. The board therefore had no lawful power to determine policy or even practice. Because such a group was under no obligation to give public access to its meetings, the taking of decisions on policy or practice by such a body was a grave abuse of power.

It was government by stealth, the antithesis of the democracy and openness which both constitutionally and prescriptively under the Local Government Act 1972 were the right of every citizen and the obligation of every local authority except where a known rule of law permitted secrecy to supervene in the public interest. The board appeared to be behaving as if it were a committee of the council. It agreed that cases in which there were rent arrears in excess of pounds 500 would be rendered 'non-active'. It was conceded that that situation was legally objectionable.

Such a rule determining priority as between applications in the allocation of housing accommodation went well beyond the bounds of a lawful policy since it permitted no flexibility whatever.

The fundamental vice of the treatment of the applicant was that it had been determined by the decision either or an unauthorised officer or of a small group of majority party councillors sitting with two officers, who neither individually nor collectively possessed the power to decide anything on the local authority's behalf or in its name. It was the product of a usurpation of power.

The council had been deliberately attempting to suppress the information that such a policy existed. The breach of the section 65 duty to provide settled suitable accommodation was the breach of a private law right sounding in damages. The applicant was entitled to an order for damages to be assessed, although it did not follow that there would be any damages if the authority was able to show that the applicant, in spite of the hiatus in eligibility was now where he would have been and there was no other loss.

A declaration that the council acted unlawfully would be granted not only on the ground that its policy was indefensibly rigid, but on the further ground that it had been adopted by the decision of an officer or a body which possessed no power to adopt any such policy in the name of the council.