Interim accommodation policy was lawful

LAW REPORT v 12 June 1997

Regina v London Borough of Camden, ex parte Mohammed; Queen's Bench Division Crown Office List (Mr Justice Latham); 22 May 1997

A housing authority's policy not to provide interim accommodation, unless there were exceptional reasons, to a person seeking a review under section 202 of the Housing Act 1996 or appealing to the county council under section 204 of the Act, following a decision that he or she was not homeless, was not unlawful. The council must, however, in deciding whether there were exceptional reasons, take into account certain material considerations.

The applicant's application for judicial review of the council's decision not to provide her with interim accommodation, pending review of its decision that she was not homeless, succeeded on the ground that the council had failed to take into account a relevant consideration when deciding that there were no exceptional reasons in her case to depart from its policy of not providing such accommodation.

The applicant had applied to the council to be treated as homeless and in priority need. The council decided that she was not homeless. She asked for a review of the decision pursuant to section 202 of the Housing Act 1996, and for interim accommodation pending the review. The council refused to extend interim accommodation, concluding that the applicant did not fall within its policy for the provision of such accommodation. The policy was stated to be that temporary accommodation pending a review was not provided unless there were exceptional reasons.

Stephen Knafler (Bindman & Partners) for the applicant; Christopher Baker (Council Solicitor) for the respondent.

Mr Justice Latham said that the Housing Act 1996, unlike it predecessors, made provision by section 202 for a formal process of review by the housing authority and, by section 204, for an appeal on a point of law from such a review to the county court. Pending both a review and an appeal the local housing authority was given a discretionary power to provide interim housing.

The applicant had argued that the Act could not have intended that the position of a person seeking relief from a decision of a local housing authority, adverse to him or her, should be worse than it would have been prior to the passing of the Act.

It was submitted that the policy expressed by the council must be unlawful in so far as it purported to restrict its exercise to cases where exceptional reasons could be shown.

Looking at the structure of the Act, it seemed to follow from the unfettered right of an applicant to ask for a review that it clearly did not envisage that the discretionary power would be exercised as a matter of course in favour of such a person.

From the evidence before the court it seemed that there had been very many requests for reviews under section 202, but very few had been found to have merit. In those circumstances it seemed that the use of the phrase "exceptional reasons" could properly be understood to reflect reality.

The important question was whether, in applying that phrase, it was apparent that council had either failed to take into account material considerations or had otherwise displayed irrationality.

In carrying out that balancing exercise there were certain matters which would always require consideration, namely: the merits of the case, and the extent to which it could properly be said that the decision was one which either appeared to be contrary to the merits, or was one which required a very fine balance of judgment and could go either way; whether there was any new material put before the housing authority which could have a real effect on the decision under review; and the personal circumstances of the applicant and the consequences to him or her of an adverse decision.

In the present case the council had fallen into error in that it had come to adverse conclusions as to the applicant's account of her circumstances on the basis of what were said to be discrepancies, but did not appear to have attempted to put those discrepancies to the applicant to see whether she could answer them, or whether they were based on a misundertsanding. In consequence the council's decision must be quashed.