Original and successive homelessness applications

The Administrative Court recently found that a council was wrong in its refusal to treat a further homelessness application as a new application. Amy Stroud discusses the implications.

In R (Ibrahim) v Westminster City Council [2021] EWHC 2616 (Admin) the Administrative Court has cast a fresh eye on the circumstances in which a renewed homelessness application made under Part VII of the Housing Act 1996 amounts to a new application. The decision raises interesting issues for local authorities: what is the nature and scope of the comparative exercise they have to undertake, between the original and successive applications?

What was the case about?

The claimant was granted asylum in the UK and given indefinite leave to remain following her rape by a general in the Congolese Army, threats to kill her and the subsequent killing of her husband and parents. She was initially housed by NASS in Middlesbrough but experienced harassment by a gang of local men. She was then granted tenancy of a housing association flat in Middlesbrough in 2017, only for a male neighbour to climb through the window of her property and enter her bathroom where she was naked. He was arrested but subsequently released and she encountered him outside her flat the following day. She left Middlesbrough a month later, and slept on a friend’s floor in Westminster.

The first consultant psychiatrist’s report at the end of 2017 stated that her mental health would deteriorate if she were to return to live in Middlesbrough as the episode had retriggered her PTSD. She had to leave her friend’s flat in February 2018 and made her first application for homelessness assistance, supported by that report and another which noted a worsening of her symptoms of depression and PTSD on account of the intrusion in her flat reminding her of her original trauma.

The Westminster caseworker concluded that the claimant had become intentionally homeless as a direct consequence of her decision to leave her last reasonable affordable accommodation. The claimant applied for a review of that decision, which was upheld on the same grounds.

She made a fresh application for housing assistance in January 2019 and secured another report from the psychiatrist in August. This application was rejected in early 2020 on the basis that there had been no change of facts in her case and so it did not constitute an application for assistance within the meaning of the Act.

As part of her review of that decision, the claimant obtained a further psychiatrist’s report in February which stated in more explicit terms than previously that fleeing Middlesbrough was likely to have been an instinctive reaction based on her trauma and distress rather than a cognitive choice. This report was delivered personally by the claimant to Westminster’s offices. However, when upholding the original decision in June 2020, the review officer referred only to the claimant’s original submissions and said no further submissions had been made. It relied on the same findings as before as to the reasonableness of the accommodation.

The claimant instructed new solicitors who made a fresh application and also, alternatively, requested a withdrawal of the review decision. They specifically referred to the February psychiatrist’s report. Westminster refused to accept that there was a new application, saying that there were no new facts in her case and declining the request for a new review. The claimant sought judicial review of the authority’s refusal of these alternative measures.

The Applicable Law

In R v Harrow LBC, ex p. Fahia [1998] 1 WLR 1396, which was under the predecessor legislation, the House of Lords held that an applicant who has been given temporary accommodation, and is then found to be intentionally homeless, cannot make a further application based on exactly the same facts as his earlier application.

In R v Borough of Tower Hamlets, ex parte Begum [2005] EWCA Civ 340, a previous formulation of ‘material change of circumstances since the original decision’ was rejected. An application could only be treated as ‘no new application’ if it appeared to be based on ‘exactly the same facts’ as the earlier application.

In R (Hoyte) v Southwark LBC [2016] EWHC 1665, applying Begum, where a person was presented with evidence but rejected it, they could not reasonably say ‘I knew that all along’ and purport to rely on matters that they had previously rejected, when later presented with fresh evidence of the alleged fact.

What did the Administrative Court decide?

Mr Justice Soole held that Westminster’s decision that no new application had been made was wrong. He rejected the contention that Begum and Fahia meant that a new application required the occurrence of a new fact or event which post-dated the original decision.

Rather, the authority was required to compare the facts and circumstances known at the date of the original decision with those identified in the purported new application.

Westminster had overly focussed on the “suitability” of the Middlesbrough accommodation (including the s.177 provisions about domestic violence). The history of the claimant’s trauma and associated mental state was not considered at all in relation to the “subjective reasonableness” of her continuing to occupy the Middlesbrough accommodation.

Therefore even though the psychiatrist’s earlier reports did mention the claimant’s history, that should have been disregarded when comparing the original and new applications.

Three other grounds for judicial review were brought, including one which stated that the review decision was in breach of the Public Sector Equality Duty. These fell away in view of the Court’s decision on the first ground but – interestingly – the Court also commented that the potential PSED breach could only be raised on appeal, and that it founded no independent basis for judicial review.

Discussion

As this case illustrates, the effect of Fahia and Begum is that the threshold for a ‘new’ application is set very low. Any deviation from “exactly the same facts as the earlier application” would seemingly satisfy the criterion for a new application.

Westminster tried to persuade the Court that a ‘new event’ should have to occur between the original decision and any new application; and that this was a necessary measure to prevent a situation by which applicants could submit evidence piece-meal in a cycle of repetitive applications and so prolong their residence in interim accommodation. The Court rejected this submission, on the basis that local authorities would be able to reject such applications as abusive.

But if applications can legitimately be so readily be distinguished as ‘new’, at what stage could a credible assertion of abuse of procedure be made? After how many successive applications?  

The House of Lord’s approach in Fahia to the consequence of successive applications is exhaustive if philosophical: “the time would come when one of the subsequent applications will be based on precisely the same facts as its immediate predecessor”. The prospect of such a war of attrition is not especially reassuring for “hard-pressed caseworkers”, as Soole J. describes them.

Equally worth examining is the analysis the Court undertook of the contents of the February 2020 report. In Fahia it was accepted that an application may be rejected where the facts were not new because “they were known to, and taken into account by, the authority when it offered the applicant accommodation to satisfy the earlier application”. This case shows that a defendant must also calculate how the facts are taken into account.

Westminster argued strongly that there was nothing in the February 2020 psychiatrist’s report that was not contained in the earlier 2018 report. The Court did not deny that the material was in the earlier report; rather, it held, the significance of the psychiatrist’s mention of the reawakening of the claimant’s trauma was that it was not considered by the review officer for the correct purpose: namely, the “subjective reasonableness” of the claimant fleeing her accommodation. Its relevance in the original decision of 2018 was limited to the question of the claimant’s capacity and “insight into the consequences of [her] decision-making”. The Court therefore held that the information in the 2018 report had to be explicitly disregarded, when comparing the original and new applications.

Implications

Reviewing authorities will need to bear in mind the purpose for which the evidence in both original and succeeding applications is presented as well as whether it is consistently made. 

In particular, authorities must ask themselves a complex question: might the court accept as ‘new’ the evidence alleged by the applicant to be new, despite it being presented for a prior application, because the authority did not take it into account in the way the applicant argues it should have done?

Perhaps an easier initial question might be: have the implications of medical or other evidence been fully considered? Or has too narrow a focus been given?

The estoppel-type principle invoked in Hoyte is also salutary: authorities rejecting earlier medical evidence will face difficulties, if they then rely on the presentation of that same evidence to argue that a subsequent application is ‘more of the same’.

Amy Stroud is a barrister at 42 Bedford Row.