Thursday Law Report: Judicial review was rarely appropriate

4 February 1999 R v Brighton and Hove Council, ex parte Nacion Court of Appeal (Lord Woolf, Master of the Rolls, Lord Justice Aldous and Lord Justice Tuckey) 1 February 1999

IT WOULD rarely be appropriate to apply for judicial review of the exercise of a local housing authority's discretion under section 204(4) of the Housing Act 1996 not to offer temporary accommodation to a homeless person pending an appeal to the county court against its refusal to accommodate him.

The Court of Appeal refused the applicant's renewed application for leave to move for judicial review of a decision of Brighton and Hove Council not to offer him temporary accommodation whilst waiting for the outcome of his appeal to the county court under section 204 of the Housing Act 1996.

The applicant had applied to the local authority for accommodation under Part VII of the Housing Act 1996 in October 1998, and the local authority had provided him with accommodation whilst it considered the application. On 17 November 1999 the local authority determined that although the applicant was in priority need and homeless he was intentionally homeless. The applicant requested a review of that decision.

The local authority affirmed its original decision, and indicated to the applicant that it would cease to provide him with accommodation on 15 December. The applicant appealed to the county court. On 15 December he indicated to the local authority that he was appealing and asked the local authority to continue to accommodate him temporarily pending the outcome of the appeal. The local authority considered the request, but refused it on 17 December.

The applicant applied for leave to move for judicial review by way of certiorari to quash the decision of 17 December 1999, mandamus requiring the local authority to accommodate him pending the determination of his appeal by the county court, and an interlocutory injunction requiring the local authority to accommodate him pending the determination of the judicial review proceedings.

That application was refused by Collins J. The applicant renewed his application for leave to move for judicial review.

Sylvester Carrott (the Brighton Housing Trust, Brighton) for the applicant; James Findlay (Legal Services, Brighton & Hove Council, Hove) for the local authority.

Lord Justice Tuckey said that it was clear from the decision of the Court of Appeal in Ali v Westminster City Council (Law Report, 30 July 1998) that, where a homeless person appealed to the county court against the determination of a local housing authority to refuse to accommodate him, the local authority had a discretion and not a duty under section 204(4) of the Housing Act 1996 to offer him temporary accommodation pending the outcome of the appeal.

Helpful guidance as to the matters which a local authority should consider when exercising that discretion had been given by Latham J in R v Camden London Borough Council, ex p Mohammed (1998) 30 HLR 315.

Where, as in the present case, the local authority had obviously considered all the relevant factors in making its decision under section 204(4), it was an entirely futile exercise for the applicant to seek to say that the local authority had in some way exercised its discretion wrongly.

Such applications for judicial review should be strongly discouraged. It was only in an exceptional case that there would be a reasonable prospect of interesting the court in an application for judicial review of what was a very broad discretion given to the local authority.

Lord Woolf MR said that, if the local authority had refused even to consider the exercise of that discretion, judicial review might well be the appropriate remedy, but apart from that it was difficult to envisage a case when a judicial review application would be appropriate. In a case where a local authority had not exercised its discretion in an applicant's favour, the only course which would normally be appropriate would be to make an application for the appeal under section 204 to be heard as soon as practicable by the county court.

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