Local Connection

January 16th, 2017

In R (Kensington RLBC) v Ealing LBC [2017] EWHC 24 (Admin) the Judge described the case as a local connection referral case raising an important point of principle with respect to determining upon which housing authority the housing duty falls where there has been a cessation of housing duty by one authority and a new application made to another housing authority.

The Interested Party is disabled and has four children who are dependent upon her. She had been living in Ealing since 2008. From 31 August 2012 she lived in private accommodation at 42 Curzon Road, Ealing, W5 1NF (“Curzon Road”).  In March 2015, she applied to Ealing for housing assistance pursuant to the provisions of the Housing Act 1996 (“HA 1996”), Part VII. Her landlord at Curzon Road had commenced possession proceedings against her and Ealing accepted a main housing duty towards her, pursuant to the provisions of Section 193 of the HA 1996.

An offer of accommodation at 165 Old Oak Common Road was made by Ealing to her in compliance with Ealing’s housing duty under Part VII of the HA 1996. She refused the offer of accommodation and Ealing notified her that it regarded its housing duty to have ceased pursuant to the provisions of Section 193(7) as she had refused a final offer made under Part VI of the HA 1996.  A request for a review of that decision was made by her pursuant to the provisions of Section 202 of the HA 1996, but that request was withdrawn.  She was evicted from Curzon Road. She then applied to Kensington and Chelsea for housing assistance pursuant to the provisions of Part VII of the HA 1996.  Kensington and Chelsea notified both her and Ealing that the main housing duty was owed and that the conditions for a local connection referral to Ealing were met. Ealing wrote to Kensington & Chelsea acknowledging that the conditions for a local authority connection referral were met but saying that it did not owe any duty to the Interested Party in light of her refusal of a suitable offer of accommodation.

Kensington & Chelsea contended that by reason of the acceptance of the conditions of referral being met, Ealing’s main housing duty was engaged, and that this was a second duty. Ealing contended that it had already discharged its duty to her and that no new housing duty arose. It was this decision which was challenged by way of judicial review. Ealing did not seek to argue that Kensington & Chelsea lack standing to bring this judicial review claim. Indeed it was clear that the refusal of Ealing to undertake the main housing duty after accepting the local connection referral has led to Kensington & Chelsea to supporting the family. Kensington & Chelsea were plainly interested in the issue as to where the housing obligation falls.

Both authorities relied upon Rikha Begum v LB of Tower Hamlets [2005] EWCA Civ 340. Kensington & Chelsea contended that prior to the fresh application for housing assistance to Kensington & Chelsea, the Interested Party had been evicted and was therefore entitled to make a fresh application for housing assistance pursuant to Section 193(9). Ealing contended that the initial decision to accept that they owed a main housing duty was on the basis that she was to be evicted, it now being the general policy of housing authorities not to wait until there is an actual eviction before finding that the applicant has not made herself intentionally homeless and all that has happened in this case is that the landlord had followed through with the eviction. Ealing contended that the housing duty had been satisfied and that no new duty has arisen and that the authority is entitled to rely upon that earlier discharge of duty in circumstances where the authority would have refused the application if it had been made to that authority.

In support of its argument, Ealing relied upon the decision of Glidewell J in R v Hammersmith & Fulham LBC, ex p. O’Brian (1985) 17 HLR 471. Kensington & Chelsea relied principally upon the determination of Neuberger LJ (as he then was) in Rikha Begum and upon the House of Lords decision in R v LB of Harrow, ex p. Fahia [1998] 1 WLR 1396. Kensington & Chelsea contended that R v Hammersmith & Fulham ex p. Chambers, which O’Brian followed, is no longer good law.

The Judge said:-

 

“21.    The issue as to the applicability or relevance of O’Brian under current housing legislation and whether the notified authority has a new housing duty if it has already satisfied is housing obligation has potentially wide significance to housing authorities.

 

  1. In my judgment, the acceptance by Kensington & Chelsea of the full housing duty and the acceptance by Ealing of the local connection referral made by Kensington & Chelsea means that a new housing duty has been imposed upon Ealing. The decision of Glidewell J. in O’Brian does not assist Ealing.”

 

“24.    … What undermines Chambers, and therefore O’Brian, is the imposition of a new statutory scheme by virtue of the provisions of the HA 1996 and the determination of the House of Lords in R v LB of Harrow ex p. Fahia [1998] 1 WLR 1396.

 

  1. In Fahia, Lord Brown-Wilkinson was dealing with the statutory obligation to make inquiries as provided in the HA 1985. He found that when a local authority, having discharged their statutory duties in relation to one application for accommodation, receive a second application from the same applicant, there is an obligation under HA 1985 to make inquires whenever the authority has reason to believe that an applicant for accommodation was homeless or threatened with homelessness unless “there has been no relevant change in circumstances at all“. That principle, established by the House of Lords in Fahia, removes the requirement established by Chambers (and followed in O’Brian) of the need for a new incidence of homelessness.”

 

“30.    In my judgment, the HA 1996 creates a statutory scheme in which there is no place for any judicial overlay imposing a further test. When an applicant makes a new application the obligation upon the housing authority is to undertake the statutory enquiries. The applicant does not have to establish a material change in circumstances. The only occasion when the housing authority, whether that is the authority who considered the first application and discharged its duty or another authority, does not undertake the statutory enquiries is if “there is no relevant change in circumstances at all“. In such a case, there is no new application to consider.

 

  1. In this matter, the application was made to Kensington & Chelsea and the obligation fell upon that authority to undertake the statutory enquiries. Having accepted the main housing duty towards Ms Hacene-Blidi and referred the main housing duty to Ealing pursuant to the provisions of section 200 of HA 1996, and the conditions of referral being met, Ealing became subject to the duty under section 193 HA 1996. The referral does not allow Ealing to avoid the housing duty as Ealing is placed in no better position by reason of the fact that the second application was made to Kensington & Chelsea and then referred to Ealing.

 

  1. While Ealing had discharged its duty with respect to the first housing duty, that does not entitle Ealing to avoid the duty that arose on the second application. If a housing authority in the position of Kensington & Chelsea, accepting the full housing duty on a second application, has acted perversely in a Wednesbury sense or has acted under a mistake of fact, then the authority in the position of Ealing, the notified authority who has already discharged the housing duty on the first application, would be protected. Otherwise it is of no consequence that the second application was made to a different authority to the one who received the first application.

 

  1. Ealing do not seek to argue that Kensington & Chelsea had acted unreasonably or irrationally in accepting the housing duty. What Ealing do argue is that the authority should not have been placed in a worse position than they would have been in had the second application been made directly to Ealing. I do not accept that Ealing have been placed in any worse position by virtue of the application being made to Kensington & Chelsea and the duty being accepted.

 

  1. This is not a case where it can be said that the second application is on exactly the same facts as the first application. In the second application, Ms Hacene-Blidi had been made homeless. In the first application Ealing was acting on the basis that the landlord had taken possession proceedings against Ms Hacene-Blidi. This is not the same as her having been evicted. … The scenario of an applicant who is facing the potential of eviction sometime in the future, possession proceedings having been instituted, is not the same scenario as actually having been evicted and being homeless. If the application had been made directly to Ealing then the authority would have been in the same position it is in with the local connection referral having been made by Kensington & Chelsea.”

 

“36.    For the reasons set out above, the main housing obligation pursuant to the provisions of the HA 1996 falls upon Ealing. Kensington & Chelsea fulfilled its statutory obligations upon receipt of the application for housing assistance from Ms Hacene-Blidi and found that there was a main housing obligation pursuant to the provisions of section193(1). That main housing obligation fell upon Ealing upon Ealing accepting the local connection referral on 20 January 2016. The cessation of the first duty that occurred when Ms Hacene-Blidi refused the offer of accommodation made by Ealing in response to her first application for housing assistance, pursuant to the provisions of Part VII, does not prevent the second housing duty arising upon her making a fresh application pursuant to the provisions of section 193(9) HA 1996. The fact that application was made to another housing authority does not place Ealing in any better or worse position. In the circumstances, Kensington & Chelsea succeed in this application to judicially review Ealing. …”

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