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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> McKenzie, R (on the application of) v London Borough of Waltham Forest [2009] EWHC 1097 (Admin) (21 May 2009) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2009/1097.html Cite as: [2009] EWHC 1097 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		21st May 2009

Miss Belinda Bucknall Q.C.:

The background to the claim

The claim

1. This is a claim for judicial review of a decision relating to a homeless application by the Claimant. The claim is now academic because the Claimant has been accommodated in a flat about which there is no complaint, or at least none that is live in these proceedings. The central issues in the case are whether the claim should proceed in circumstances where there is no lis between the parties and, if so, whether the Claimant is entitled to the relief currently sought. Before turning to those issues, it is necessary to set out the facts and also the law relating to homeless applications as it relates to the Claimant. I have taken the facts from the Claimant's witness statement dated 16^th December 2008 and the information set out in various letters written by the Claimant's solicitors and by the Defendant. I have assumed for the purpose of this judgment that the facts as set out are true.

The facts and the relevant law

2. In 2005 the Claimant applied to the Defendant for accommodation but was told that it could not assist because she was single and thus not a priority. At the beginning of 2007 she was accommodated in Flat A in a hostel in Leytonstone for single men and women provided by London and Quadrant Housing Association and managed by Rainer Housing Service. Children were not allowed to live in the hostel. She occupied the flat on her own. It did not, however, have a private bathroom and her witness statement evidence is that she had to share a bathroom with a boy. Visitors came to the hostel from time to time but there is no evidence that they would use the bathroom shared by the Claimant and the boy. While living in this accommodation she was provided with a support worker.
3. In the spring of 2008 the Claimant became pregnant. The expected date of her confinement was 21^st December 2008. In due course the fact of the Claimant's pregnancy became known to her landlord and on 26^th September 2008 Rainer Housing Service served a notice requiring possession pursuant to section 21 of the Housing Act 1988. It is common ground that possession could not have been obtained before March 2009 and there was thus no question of her being evicted before or even immediately after the birth of her child, notwithstanding the landlord's no-child policy.
4. The letter accompanying the notice stated that as she was now pregnant the accommodation was no longer suitable. It continued,

"It is not appropriate for you to live in a shared mixed house. Tenants are allowed to have visitors in the property from time to time. As such it has been agreed that Rainer London Housing would not want to expose you and the unborn baby to any potential risk that could emanate from this situation."

The letter advised her to contact her Housing Support Worker for support.

5. Before dealing with subsequent events it is convenient to set out here the legislative scheme which governs the Defendant's obligations when faced with a homeless application by someone who, like the Claimant, was eligible for assistance and who, like the Claimant, would, if homeless, have a priority need by virtue of her pregnancy.
6. Section 188(1) of the Housing Act 1996 provides that

"If the local housing authority have reason to believe that an applicant may be homeless, eligible for assistance, and have a priority need, they shall secure that accommodation is available for his occupation pending a decision as to the duty (if any) owed to him under the following provisions of this Part."

The duty is thus couched in terms of an obligation to provide interim accommodation. It is, however, a condition precedent to the triggering of that duty that the housing authority has reason to believe that the applicant is homeless. Section 175(1)-(4) defines the circumstances in which a person is or is to be treated as homeless. Although there was reference to section 175(4) at the hearing, the contentions of both parties were focussed on sub-section (3). This provides that "a person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for him to continue to occupy."

7. Following receipt of the notice requiring possession, the Claimant went to the Defendant's Homeless Person Unit on 8^th October 2008 and made a homeless application. She was interviewed and her details were taken down. She was apparently told that since she was not in fact at that time homeless she could either wait until she was evicted in March 2009 and then make a homeless application or she could apply for housing pursuant to the Defendant's rent deposit scheme where applicants are housed within the private rented sector and an agent or private landlord manages their tenancy. The advantage of the rent deposit scheme is that it enables applicants who qualify to access better quality accommodation than their local authority would be likely to provide pursuant to the section 188(1) duty. The Claimant's preferred option was to be housed pursuant to the Defendant's rent deposit scheme and an arrangement was made for someone to visit the Claimant at her home on 16^th October 2008. If she had been accepted for the rent deposit scheme her homeless application would have become redundant because it is apparent that she could have been re-housed in the private sector without difficulty. As it turned out, however, those who were familiar with the Claimant, namely her landlord and her support worker, were concerned that she would not be able to manage if she moved into the private sector because she would no longer be provided with a support worker.
8. On or shortly before 18^th November 2008 the Claimant instructed solicitors. On that date they sent a letter to the Defendant passing on the Claimant's instructions that

"she is very concerned about staying in her current accommodation as she shares her bathroom with a boy and only single people live in the hostel and she is not allowed to have children in the accommodation … that the accommodation has a rat infestation and it is very noisy and dangerous and that the hostel has been broken into by people with guns which is not safe for a baby".

It is apparent from this that the Claimant's primary concern at this time was for her child in the period after its birth if she was not provided with accommodation until she was evicted in March, although I accept that she was also objecting on her own account to the fact that she shared her bathroom with a boy. The letter asked the Defendant to accept a homeless application from the Claimant on the basis that it was not reasonable for her to continue to occupy her current accommodation and to provide her with temporary accommodation immediately.

9. The Defendant replied on 21^st November 2008, stating that the Claimant was not in fact homeless, that the conditions at the hostel were a matter for her landlord and referring to the on-going investigation into whether the Claimant's desire to be re-housed in the private sector was feasible, in the terms already set out above.
10. On 3^rd December 2008 the Claimant's solicitors sent a further letter repeating much of what was said in the letter of 18^th November 2008 as to the conditions in the hostel and insisting that in the circumstances it was not reasonable for the Claimant to continue to reside in the hostel, with the result, as contended, that she was homeless and in priority need. On the same day they sent a letter before action.
11. On 5^th December 2008 the Defendant notified its decision in the letter which is at the heart of this claim. In so doing the Defendant dealt with each one of the points relied upon by the Claimant in support of her contention that the accommodation was such that it was not reasonable for her to continue to occupy it. In the same letter the Defendant expressly accepted that the Claimant would not remain in her present accommodation and that she had recently identified a property in Ilford which was available under the rent deposit scheme which had fallen through because her support worker felt that she was not yet ready to live on her own. It was further made clear that because the Claimant was still entitled to live in the hostel and did not yet have a baby the Defendant did not consider that a duty pursuant to section 188 had been triggered, the clear inference being that when she had a baby and if she was still considered not to be ready to live on her own in private sector housing, it accepted that the duty would be triggered.
12. On 11^th December 2008 the Claimant's solicitors sent a further letter to the Defendant pointing out that the Claimant was due to give birth on 21^st December 2008, saying that she needed to be accommodated when she was discharged from hospital with her baby and asking when the Defendant intended to provide alternative accommodation. The letter ended by saying

"If we do not get a satisfactory response and an indication that our client would be provided with interim accommodation to our client by the close of business on 15^th December 2008, we will have no other option than to issue judicial proceedings in the High Court".

That was copied to the Defendant's legal department.

13. On 15^th December 2008, and thus before expiry of the deadline they themselves had imposed, the Claimant's solicitors issued judicial proceedings on her behalf. The grounds of the application were that (1) the Defendant failed to consider a relevant factor, namely whether it is reasonable for a woman who is about to give birth to have to share a toilet and bathroom with men who are not members of her household and (2) the Defendant's decision was perverse, irrational and unreasonable, the stated ground being that the Claimant was homeless in that as a pregnant woman in her last trimester she had insufficient privacy and was unable to prepare for the arrival of her baby. The application was accompanied by the Claimant's witness statement which evidences her claims that she shares the bathroom with a boy, states that he is a drug addict who smokes drugs in his room and that she has smelled cannabis, which comes into her room. As far as I can see the complaint about cannabis smoke was not conveyed to the Defendant on any earlier occasion.
14. On the same day, the Defendant, who had not yet received notice of the issue of proceedings, responded, pointing out that the Claimant had opted to secure a property via the rent deposit scheme but that there were grave concerns about her ability to live on her own with a young baby, that she was not yet homeless, that once her child was born the Defendant would duly discharge any duty upon request, that the Defendant's limited resources precluded making provision for the Claimant in advance of her becoming homeless and that if she was provided with temporary accommodation thereafter pursuant to section 188 of the Housing Act 1996 it was likely to be in another hostel.
15. On 16^th December 2008 the Claimant's solicitors gave notice that they had issued the application for judicial review on the previous day. On 18^th December 2008 the Defendant wrote to the Claimant's solicitors saying that in view of the imminence of the birth of the Claimant's baby and the pending Christmas period, it would provide her with accommodation before her due date. The Claimant had a grandmother who was actively involved in her grand-daughter's life, at least in the latter stages of her pregnancy and after the birth of the baby. On the same day the Claimant and her grandmother viewed the offered accommodation, a self-contained one bedroom flat on the first floor, and the Claimant moved in either on that day or a day or so later. It is apparent that the Claimant was disappointed by the accommodation. She made a number of complaints about its unsuitability, principally relating to a lack of adequate heating but also about the fact that the new furniture she had been promised was not already in place. The new furniture was provided and on 20^th December 2008 a new boiler was installed.
16. Meanwhile also on 18^th December 2008 a Deputy High Court Judge considered the application for leave for judicial review on paper, gave permission and further granted interim relief by way of an order that the Defendant should forthwith secure alternative accommodation for the Claimant, which was to be suitable to the needs of the Claimant and a new baby. In granting permission the Deputy High Court Judge stated that "the Claimant has a clearly arguable case of unlawful and/or perverse application by the [Defendant] of the provisions of the Housing Act" but gave no indication as to why he reached this conclusion.
17. The Claimant went into labour on about Christmas Day and was admitted to hospital, the baby was born on 27^th December 2008 and the two of them were discharged from hospital on 28^th December 2008 to the accommodation to which she had already moved.
18. The Claimant continued to complain about the heating but when a representative of the Defendant visited the property on 5^th January 2009 and eventually gained access after an initial refusal by the Claimant and her grandmother to let her in, the flat was found to be warm, with all the radiators working properly. Notwithstanding that the complaints continued and letters dated 7^th and 13^th January 2009 from the Claimant's solicitors demanded that she be re-housed on the ground that the flat was cold and thus unsuitable for her new born baby. Eventually, however, it seems that these complaints were resolved.
19. The Claimant nevertheless wishes to pursue her claim. She does so on the ground that it is in the public interest to obtain the court's guidance as to how local authorities should approach homeless applications by pregnant women by inviting the court to answer seven questions and to make nine declarations. At the core of the application is the contention that it is never reasonable (except in exceptional circumstances) for a pregnant woman in her third trimester (or even before) to continue to occupy accommodation where any of the facilities (bathroom, lavatory or kitchen) are shared with persons of the male sex who are not members of her family, with the result that she satisfies the requirement for homelessness in section 175(3) and the section 188(1) duty to provide interim accommodation is triggered, even though she as yet has no baby. She has obtained public funding for that purpose. The questions and declarations are set out in a skeleton argument that was not provided until 29th March 2009, several months after the original application was made and after the issues between the Claimant and the Defendant had been resolved.
20. The questions are as follows.

i) Whether the Claimant's decision to refuse to secure accommodation for the Claimant before the birth of her child was unlawful;

ii) Whether, and if so in what circumstances, a local housing authority is required to consider the needs of an unborn child when considering whether an applicant is homeless;

iii) Whether, and if so in what circumstances, a local housing authority is required to consider the needs of a pregnant woman to prepare a suitable home for her unborn child when considering whether an applicant is homeless;

iv) Whether, and if so in what circumstances, a local housing authority is required to consider the needs of an applicant in the final stages of pregnancy to prepare a home for her newborn baby in deciding whether any duty is owed to secure accommodation before the birth of the child under section 188 or section 195.

v) Whether accommodation in a mixed hostel or other non-self-contained accommodation is accommodation which it is reasonable for a woman living alone to occupy in the final stage of pregnancy or the first stage of maternity.

vi) Whether it is reasonable to expect an applicant living alone to move home immediately after the birth of her child or within 2 weeks of the birth.

vii) Whether the decision that it was reasonable for the Claimant as a homeless applicant in the final stage of pregnancy living alone to continue to occupy accommodation in a mixed hostel was a violation of Article 8 of the Convention and breach of section 6 of the Human Rights Act 1998.

21. The declarations are that,

i) The decision to refuse to secure accommodation under section 188(1) of the Housing Act 1996 to the Claimant in the final stages of her pregnancy is unlawful.

ii) No reasonable authority would consider it reasonable for a woman in (at least) the final stages of pregnancy and/or in the first stage of maternity to continue to occupy accommodation which is not either self-contained or suitable for a mother in the first few weeks of maternity, save in exceptional circumstances.

iii) No reasonable authority would expect a woman to move home in the final stages of pregnancy and/or the first stage of maternity save in exceptional circumstances.

iv) No reasonable authority would expect a woman to have to endure the first stage of labour in a homeless person's hostel and/or accommodation which is not self-contained, save in exceptional circumstances.

v) No reasonable authority would expect a woman to be discharged from hospital with a new born baby not knowing where she will be living for the next two weeks, save in exceptional circumstances.

vi) No reasonable authority would expect part of first stage maternity to be spent at the homeless persons unit waiting to claim accommodation, save in exceptional circumstances.

vii) No reasonable authority would expect a woman in the first stage of maternity to occupy accommodation which requires sharing a kitchen and/or toilet and/or bathroom with members of the opposite sex who are not part of her household save in exceptional circumstances.

viii) Accommodation at a mixed homeless persons hostel where visitors are permitted and children are not permitted cannot be described as accommodation for a woman in the final stages of pregnancy and/or first stage maternity.

ix) The decision to refuse to secure accommodation for the Claimant was a violation of Article 8.

22. The last question and the last declaration require leave for their introduction. The Defendant resisted the Claimant's application but I can see no disadvantage to the Defendant if it is allowed and I hereby grant it.
23. The Defendant's position is that (a) its decision was lawful and (b) no useful purpose can be served by pursuing the claim because whether a pregnant woman is to be treated as homeless within the scope of section 175(3) depends upon all the circumstances relating to her, with the result that a decision in this case can provide no general guidance. I will take the second issue first.

Should the case proceed although now academic because it will afford useful guidance for the future?

24. Some of the authorities suggest that the court should never decide a hypothetical or academic question. See for instance R(on the application of Rushbridge) v. Attorney General [2004] 1 AC 357 per Lord Hutton at page 371 "it is not the function of the courts to decide hypothetical questions which do not impact on the parties before them". See also McNaughten v McNaughten's Trustees [1953] SC 387 per Lord Justice Clerk (Thompson) at page 392 "our courts have consistently acted on the view that it is their function in the ordinary run of contentious litigation to decide only live, practical questions and they have no concern with hypothetical, premature or academic questions, nor do they exist to advise litigants as to the policy they should adopt in the ordering of their affairs." See also Smeaton v Secretary of State [2002] 2 FLR 146, per Munby J at page 244 "the facts remain that the court – including the Administrative Court – exist to resolve real problems and not disputes of merely academic significance". That approach may, however, be too rigid in light of what was said by Lord Slynn in the case of R. v Secretary of State for the Home Department ex parte Salem [1999] 1 AC 450 that "the discretion [of the Judicial Committee of the House of Lords] to hear disputes, even in the area of public law, must be exercised with caution and appeals which are academic between the parties should not be heard unless there is good reason in the public interest for doing so as for example (but only by way of example) where a discrete point of statutory construction which does not involve detailed consideration of the facts and where large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future". In R (ex parte Zoolife International Ltd. v Secretary of State for Environment, Food and Rural Affairs [2007] EWHC 2995 (Admin) Silber J, after a detailed review of the above, and other, authorities, took the view that although what was said in the Salem case related specifically to the Judicial Committee, there was no reason why it should not apply with equal force to other courts. He therefore declined to decide what had become an academic issue in the case before him on the grounds that the exceptional circumstances identified by Lord Slynn in the Salem case were not satisfied.
25. At paragraph 62 of the skeleton argument on behalf of the Claimant, it is recognised, correctly in my view, that this court should adopt the same approach as Silber J. Accordingly the Claimant must establish that two conditions are satisfied, the first being that a large number of similar cases exist or are anticipated and the second that her claim involves the resolution of a discrete issue which does not require detailed consideration of the facts.
26. As to the first condition, the Claimant has adduced no evidence to satisfy it. There is merely an assertion that "It is likely that a large number of pregnant applicants are affected by this issue" (the issue being that set out at paragraph 19 above) and a further assertion that "anecdotal evidence suggests that" the Defendant's decision in response to the Claimant's application that the section 188(1) duty was not triggered because she had not yet had her child, "is commonplace". I have no means of assessing whether or not those assertions are correct.
27. The second condition is also not met. The 175(3) test requires all the relevant facts relating to the specific applicant to be taken into account. It is, thus, entirely fact-sensitive, rendering general guidance an unsafe course for any court to attempt. This point can be demonstrated by considering what answer could be given by the court to any of the questions that do not relate specifically to the Claimant and her specific circumstances. By way of illustration I take the second question "whether, and if so in what circumstances, a local housing authority is required to consider the needs of an unborn child when considering whether an applicant is homeless". The only sensible answer that a court could give to the first part of the question is "It depends on the particular facts" and the second part of the question seeks to impose on the court the impossible task of drawing up a definitive list of factual circumstances in the abstract. Similar difficulties attend all the other general questions. It is also instructive to consider the declarations in the same light. I take by way of example the second declaration "no reasonable authority would consider it reasonable for a woman in (at least) the final stages of pregnancy and/or in the first stage of maternity to continue to occupy accommodation which is not either self-contained or suitable for a mother in the first few weeks of maternity, save in exceptional circumstances". The effect of such a declaration would be to substitute for the broad test of reasonableness provided by Parliament in section 175(3) which falls to be determined by a factual investigation of each applicant's particular circumstance, an absolute obligation on the part of the housing authority to treat all pregnant women and new mothers currently housed in accommodation which is not self-contained or suitable (a different test from the threshold test of whether it is reasonable for her to continue to occupy the accommodation) as homeless, irrespective of their particular circumstances, unless the circumstances are exceptional. If Parliament had intended the need for the individual factual inquiry envisaged by section 175(3) to be disapplied in the case of one particular category of applicants and be replaced by a presumption that could only be displaced by exceptional circumstances it could have done so. However, it has not. That being so, I do not consider that the court could or should make a declaration in such terms. The same or similar difficulties attend the other declarations of general application.
28. In sum, the Claimant has failed to satisfy me that the court should decide the academic points raised by her amended skeleton.