Judge dismisses claim of unlawful delay in providing suitable alternative accommodation

A deputy High Court judge has dismissed a judicial review claim that a local authority unlawfully delayed in providing the claimant with suitable alternative housing.

In EL, R (On the Application Of) [2022] EWHC 3185 (Admin) the claimant, who suffers from mental health disorders and physical health disorders, argued that he had been the victim of retaliatory behaviour by his neighbours, and that the defendant council had acted unlawfully and irrationally in requiring him to continue to occupy unsuitable accommodation.

The background to the case was that the claimant was a homeless person and through an application for homeless assistance, was granted a secure tenancy in about January 2015 at premises in Grenfell Walk by the Royal Borough of Kensington and Chelsea.

There were reports of complaints and concerns as to his conduct at this tenancy. These included allegations of screaming and shouting, and of disturbing and intimidating neighbours.

Following the Grenfell fire on 14 June 2017, the claimant was evacuated from his accommodation and was accommodated by the defendant in hotels and temporary accommodation pending an allocation under the Grenfell Rehousing Policy, which was adopted by the council in April 2019.

Roger Ter Haar KC, sitting as a Deputy High Court Judge, noted that most of these temporary placements were terminated as a result of allegations of anti-social behaviour on the part of the claimant, referred to as EL.

On 8 April 2019 EL was offered and signed an introductory tenancy of a one-bedroom flat, referred to by the judge as "the property".

The placement was made by the defendant under its Grenfell Rehousing Policy and the tenancy formally started as a secure tenancy under the Housing Act 1985 on 15 April 2019.

As a result of allegations of anti-social behaviour, on 9 December 2019 the defendant sought and obtained an injunction against EL. The injunction was for a period of two years.

On 8 December 2021, an application by the council for an extension of the period of the injunction was refused, but by then it had commenced an application for committal for breaches of the injunction.

The judge said that on 17 August 2022, by consent, the hearing of the committal application was stayed pending the determination of the current judicial review application brought by the claimant.

The judge shared an account by a dedicated service worker employed by the defendant, to illustrate the claimant’s case that he had been the victim of “retaliatory behaviour by his neighbours”.

She said: "[EL]'s living situation is currently volatile. There is a risk that [EL] may be assaulted by his neighbours who are frustrated with their perception that the RBKC Council is taking no action to ameliorate his antisocial behaviour.”

The service worker had witnessed threatening behaviour from the claimant’s neighbours when she visited the property, which included one neighbour raising his walking stick in a ‘threatening manner’, opening the gate to [EL]'s property and running down the steps to his front door threatening to hit him.

Following the incident on 13 August 2020 above, the dedicated service worker took the view that EL needed "to be moved as a matter of urgency". She took steps to convene a complex case panel.

She also involved Kensington and Chelsea Citizens Advice who had assisted the claimant. The referral for a complex case review refers to EL having been asking to move for a year and the service worker’s view that he needed to be moved as a matter of urgency, the judge said.

During the discussions, on the 27 October 2020 Citizens Advice wrote a letter which requested that [EL] be rehoused either “pursuant to the Grenfell Rehousing Policy (Revision April 2019) on the basis that the permanent accommodation as offered was never suitable for [EL] and as such that the Council continues to fall under a duty to provide him with suitable long-term housing”; or in the alternative, “on medical grounds pursuant to 4.6 of the Housing Allocations Scheme February 2017, on the basis that his current property is having a directly detrimental impact on his current health conditions”.

The letter included a medical document which evidenced that there had been a significant deterioration in both his physical and mental health – this deterioration was attributable to the significant levels of stress and anxiety he experienced in the property.

After six complex case discussions between Citizens Advice, the council’s Head of Grenfell Housing Services, a Team Leader in the council’s Grenfell Housing Team, and others, no offer of alternative accommodation was made, and it was revealed that the defendant’s intention was to proceed with its application for committal.

On 1 March 2022 the claimant issued his claim for judicial review, setting out four grounds of challenge. On 1 July 2022 Mr. Vikram Sachdeva KC granted permission in respect of Grounds 1 and 2.

The 2 grounds considered by Roger Ter Haar KC were as follows:

• Ground 1: In breach of statutory duty the defendant had acted unlawfully and irrationally in requiring the claimant to continue to occupy unsuitable accommodation and had unlawfully and unreasonably delayed in providing him with suitable alternative accommodation. It was submitted there was no good reason for the defendant's failure to provide the claimant with suitable accommodation. Rather the defendant had pursued applications to commit the claimant to prison for breach of an injunction. It was submitted this was a breach of a continuing duty.
• Ground 2: The defendant had acted in breach of statutory duty and unlawfully, irrationally and in breach of a substantive legitimate expectation created as a result of the decision of the 3 March 2021 to adopt a procedure of making a direct offer of alternative accommodation to the claimant as an alternative to enforcement of allegations of breaches of an injunction arising out of the occupation of the unsuitable accommodation provided to the claimant [i.e. "the property"] as a result of the Grenfell Fire and under that bespoke scheme for allocation."

Considering ground 1, the judge noted, “The breaches of duty alleged are breach of the Defendant's housing allocation scheme, breach of the Defendant's housing duty under Part 6 of the Housing Act 1996 and/or breach of the Defendant's homelessness obligations under Part 7 of the Housing Act 1996.”

The legal framework considered by the judge included the Housing Act 1996, The Defendant's allocation scheme, the Grenfell Rehousing Policy and the Settled Homes Policy.

In paragraph 80 of the Claimant's skeleton argument for the hearing, the following relief was sought:

"a. A declaration that D has acted unlawfully, and in breach of its statutory duty, by failing to treat C as having applied for an allocation of accommodation and by failing to make him a direct offer;

"b. A declaration that D has acted unlawfully and in breach of C's legitimate expectation by failing to take any steps to identify whether a suitable property was available for C and therefore failing to offer him that property;

"c. A mandatory order requiring D to:

i) Make C a direct offer under its allocation scheme;

ii) Take all reasonable steps for three months from the date of this order to identify a suitable property for C and offer it to him."

The defendant council’s submissions included:

"52. D's approach to C's situation has been influenced by two (potentially conflicting) objectives. First, D's commitment to those affected by the Grenfell Tower fire that it would ensure that they were suitably housed. That objective would support the provision of alternative accommodation to C.

"53. Secondly, the need to ensure that D's tenants do not cause nuisance and the desirability of taking action to protect residents from nuisance. That objective supported the application for an injunction against C and the subsequent committal application following allegations of breach of the injunction. It might also weigh against offering C alternative accommodation (or general needs accommodation) given the possibility that that might simply result in C's anti-social behaviour being moved to another location.

"54. Different officers of D took different views as to the best way forward and that led to the decision-making process being difficult and protracted.

"55. That decision making process resulted in a decision that an application for committal would be made but that at the same time efforts would be made to identify suitable alternative accommodation for C to be offered via a direct offer. If those efforts had not proved successful within 3 months, a decision would be taken as to whether to pursue a claim for possession of the property (p 317).

Judge Ter Haar said: “In my judgment, and subject to what I say below in respect of Ground 2 and in respect of the settled homes policy, the Defendant acted at all times in accordance with its allocation scheme read in conjunction with the Grenfell Rehousing Policy.

“The problems faced by the Defendant in finding alternative accommodation for EL were acute. The alternative accommodation would have to be on a ground or basement level; allow for his physical condition; allow for his own mental health issues; and allow for the problems which might arise between EL and future neighbours, all this in an environment where publicly funded accommodation is in very short supply.

“This led to considerable delays, not assisted by differing views as to whether the correct way forward was to press ahead with the application for an injunction and the subsequent committal application.”

The judge accepted the submissions made at paragraphs 58 to 61 of the defendant's skeleton argument, which included:

"58. The fact that D would have had power to make an offer of alternative accommodation to C does not mean that it was obliged to do so.

"59. C argues that D is in breach of its allocation policy, has failed to exercise its power under section 159(4A) and is in breach of its homelessness functions under Part 7 of the Act.

"60. However, it is doubtful that the power under section 159(4A) arose. C was disqualified from joining D's housing register as a result of the injunction. Although, as discussed above, D would have had discretion under the Grenfell Rehousing Policy and under the exceptional priority provision of the allocation scheme, it cannot realistically be suggested that it was irrational not to exercise that discretion."

In considering whether there was a breach of the defendant’s duty under part 7 of the of the Housing Act 1996, the judge concluded that the submission appeared to fail “for a number of reasons”, stated below:

“Firstly, it seems to me that being treated as homeless was the opposite of what EL has been seeking. What he was and is seeking is accommodation in which he would feel more secure than he feels in the property. Being treated as homeless would involve him either (perhaps) staying in the property or (more probably on the facts of this case) being rehoused in the somewhat unpredictable manner that the homelessness regime provides in practice.

“Secondly, it is far from certain that an application under Part 7 would have procured the result he wanted since (as Ms. Davies – counsel for the claimant – conceded) it is at least possible that he would be regarded as intentionally homeless, or that it was not unreasonable to expect him to stay in the property. The highest that Ms Davies could put it was that he had a case for consideration under Part 7 of the Act. That would not suffice to justify in my making the mandatory order sought and, probably, would also make it difficult for me to grant the mandatory relief sought.

“Thirdly, and most powerfully, the case which [Citizens Advice] was putting forward very eloquently, particularly in the letter of 27 October 2020 referred to in paragraph 14 above, was a case for consideration under Part 6 of the Act and under the allocation scheme. In those circumstances it was not irrational for the Defendant to treat EL's housing situation under Part 6 rather than Part 7 of the Act.”

The judge therefore dismissed the application made under ground 1.

Considering the second ground submitted by the claimant, referring to the 3 March 2021 decision [an email from the head of the Grenfell Housing Services Department], Judge Ter Haar said that it seemed to him that what was offered was an attempt to search for alternative accommodation and to make a direct offer if, but only if, suitable alternative accommodation could be identified: “of course, even if such accommodation could be identified there would then be a further issue as to whether it would be acceptable to EL”.

The judge said it was well arguable that what was offered was clear and unambiguous, but it seemed to him that it was not "devoid of relevant qualifications" since the most important qualification was that it depended upon the identification of suitable alternative accommodation. “The process which was followed…..showed how difficult it was to identify a suitable alternative.”

Judge Ter Haar added that it seemed significant that the documentation after 3 March 2021 did not suggest that Citizens Advice regarded any form of promise as having been made, and that in this case, because the 3 March 2021 "decision" was not communicated to EL, there was no raising of his hopes or reliance.

He accepted the council’s submissions that the email of 3 March 2021 did not give rise to any legitimate expectation. He also accepted the defendant’s argument that even if the 3 March 2021 email did give rise to a legitimate expectation, frustrating that expectation would not be so unfair as to amount to an abuse of power.

Considering the Grenfell Settled Home Policy, the judge also said: “Under the normal allocation scheme, an applicant who has previously been the subject of legal action, including being the subject of service of an application for an injunction, will be disqualified for registration on the register of applicants for the Defendant's rental property.

“That disqualification, which is a significant problem for EL under the Defendant's allocation scheme, does not apply to EL under the Grenfell Settled Home Policy. As it was put in the course of Mr Peacock's oral submissions, (acting on behalf of the defendant), under that Policy the slate is wiped clean. This appears to me to be an important explanation of the Defendant's position.

“The allocation of 1500 points places a person applying under the Policy in a very good position in the order of priority of applicants.

“The result is that unless EL is evicted from the property before an application under the Policy has been made or considered, EL has a very good chance of being allocated alternative accommodation if suitable accommodation can be identified.”

Judge Ter Haar added that is seemed to him that EL’s position now was as good as it would have been had the search for accommodation which it was said should have been carried out in implementation of the 3 March 2021 Decision had been carried out.

“Accordingly, had I not decided that this application should have been dismissed on other grounds, I would have dismissed it in any event upon the basis that EL has an adequate alternative remedy and/or it would not be unfair for the Defendant to be permitted to take the stance which it has and does,” he said.

The judge said that for the above reasons, “this application for judicial review must fail”.

Lottie Winson