A Deputy High Court judge recently ruled that a council's refusal to provide emergency accommodation in line with the 'Everyone In' policy was unlawful. Toby Vanhegan and Siân McGibbon explain why.
In The Queen (on the application of Cort) v. London Borough of Lambeth  EWHC 1085 (Admin) (Deputy High Court Judge Graham Wood QC) (11 May, 2022) the Claimant brought a successful application for judicial review of the Defendant’s refusal to exercise its discretionary powers under s. 138 Local Government Act 1972 and / or s. 2B National Health Service Act 2006 to provide her with emergency accommodation in line with the central government ‘Everyone In’ policy during the Covid-19 pandemic. The High Court held that the local authority’s decision was unlawful because it had failed to adopt any policy or criteria to indicate how the national ‘Everyone In’ initiative was being interpreted and applied. As such it had not properly taken account of the national policy and its decision making process had been flawed.
The Claimant, an elderly lady of black Caribbean ethnicity, had been in the UK for many years without immigration status and with no recourse to public funds (‘NRPF’). During this time she provided care for family members in the UK, including her disabled niece and later for her elderly father. Some time after the death of her father, in July 2021 the Claimant found herself faced with street homelessness. She approached the Defendant local authority for assistance, citing the national ‘Everyone In’ initiative adopted in response to the Covid-19 pandemic. On 15 June 2021 the Defendant refused to provide emergency accommodation. The Claimant’s solicitors sent a letter before action challenging this refusal, to which the Defendant responded on 21 June 2021 confirming that it would not provide emergency accommodation. A claim for judicial review was issued on 21 June 2021 on grounds that the Defendant had (i) failed to apply consistent criteria or to adopt a policy to govern the exercise of its discretionary powers; (ii) the refusal to exercise its discretionary powers was unlawful because it was arbitrary; and (iii) the refusal was unlawful because it failed to take into account relevant considerations in particular the central government ‘Everyone In’ scheme.
Along with its acknowledgment of service the Defendant filed and served a copy of its ‘COVID-19 Outbreak Prevention and Control Plan’ (‘the OMP’) as well as a letter from its director of public health dated 20 July 2021. That letter referred to the OMP and noted that the steps set out therein were sufficient to ‘at the very least alleviate the effects of the pandemic pursuant to section 138 of the Local Government Act’ and that ‘our planning does not include the provision of accommodation to NRPF applicants in order to alleviate the effects of COVID-19 at this stage of the pandemic where most other restrictions have been lifted from the 19th July 2021’. The director of public health considered that this was not a ‘blanket policy’ but that she retained an ‘element of discretion’; however having considered various features of the Claimant’s circumstances including her age, vaccination status, ethnicity, and health the letter concluded that no offer of accommodation would be made.
The Judge rejected the Defendant’s argument that the court should scrutinise only the third and final decision letter made by the defendant’s director of public health, noting that ‘the Claimant is entitled to have regard to the prior decision-making process…Inconsistency is an integral part of the challenge, supporting an argument of arbitrary decision making’ (at ). Addressing the grounds for judicial review, the Judge accepted that ‘a tolerant judicial analysis may be appropriate as to how a national initiative towards all those sleeping rough on the streets being housed in temporary accommodation to prevent infection and for their own safety regardless of immigration status was being applied, when that initiative, to use the words of Fordham J [giving judgment in R (ZLL) v Secretary of State for Housing, Communities, and Local Government  EWHC 85 (Admin)] was constantly in a state of ebb and flow’ (at ). However, he held that ‘the requirements of local policy guidance / criteria for those who might make such an application [for emergency accommodation] following the launching of the Everyone In initiative in March 2020 did not constitute a big “ask”. It was incumbent on the Defendant authority to consider its own position in light of the national exhortation to house all the street homeless, including those of NRPF. A decision could have been made to the effect that no rough sleepers could be accommodated because there were simply no resources, despite funding. It is immaterial whether such a decision might have been reviewable on other grounds, it would have amounted to a policy response. Equally the council might have adopted a blanket response…that all rough sleepers regardless of immigration status would be provided with emergency accommodation. Further, if the discretion would only be exercised in “exceptional circumstances” an applicant was entitled to know what those might be. All these approaches do not require an extensive statement of policy, but merely a short indication, either in a published minute of an appropriate council meeting or committee, or a leaflet made available through housing and charitable organisations’ (at -). The Judge held that this failure to adopt a policy rendered both the decision letters prior to the proceedings flawed. They were also unlawful by reason of being arbitrary, as ‘a decision that has not been informed by a policy or criteria is arbitrary, in the sense that it has been arrived at on an ad hoc basis’ (at ).
Turning to the final decision letter provided alongside the Acknowledgement of Service, the Judge accepted that this made reference to a policy (the OMP) but noted that it ‘did not make any mention of the national initiative of Everyone In, or the request which had emanated from central government’ (at ). Reference to the OMP was misplaces as that policy contained no reference to the protection of those who were street homeless. What was required was for the authority to indicate ‘how the national initiative was being interpreted and whether there was any scope for rough sleepers to be accommodated, as national government had requested’ (at ). This the Defendant had failed to do.
On this basis the Judge found that the refusal to exercise discretionary powers to provide the Claimant with emergency accommodation was ‘flawed in public law terms’ (at ). The decision was accordingly quashed and remitted to the Defendant for reconsideration.