25 November, 2020 Open access
25 November, 2020 Open access
Bankole-Jones v Watford Borough Council [2020] EWHC 3100 (Admin)
In a new judgment, the High Court has considered whether a local authority properly assessed priority need under section 189(1) of the Housing Act 1996 (the 1996 Act), with regard to vulnerability and homelessness as a result of an 'emergency' during the coronavirus (COVID-19) pandemic.
In Bankole-Jones v Watford Borough Council [2020] EWHC 3100 (Admin) (24 November 2020), Mr Bankole-Jones (the appellant) had been given notice to leave a room in the Watford YMCA due to issues with his behaviour. He had applied for homelessness assistance under Part VII of the 1996 Act stating that he suffered from severe anxiety, depression, Post-Traumatic Stress Disorder (PTSD) and suicidal ideation and that he was in priority need because he was vulnerable under section 189(1)(c) of the 1996 Act. While his application resulted in the respondent providing temporary accommodation in a hostel in Watford, he was subsequently given notice to leave the hostel because of complaints about his behaviour towards, staff and he left on 30 September 2019 (and has remained without accommodation since then).
NB - the appellant did not accept emergency 'Bed & Breakfast' accommodation offered to him in April 2020 as part of the national response to the COVID-19 pandemic, stating through his solicitors that it was highly unsuitable and that he required self-contained accommodation due to his mental health issues.
While the respondent then decided in March 2020 that the appellant was homeless and eligible for assistance, it decided that he was not in priority need, a decision which was maintained on review. The appellant lodged an appeal under section 204 of the 1996 Act, challenging the conclusion that he was not in priority need. He also argued that the first two of his four grounds of appeal raised issues of wider significance than the individual circumstances of his case that warranted a transfer of the appeal from the County Court to the High Court. These grounds were -
An Order for the transfer of the appeal from the County Court to the High Court was made in June 2020.
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Before turning to the substance of the appeal, Deputy High Court Judge Guillick considers a preliminary point raised by the respondent on whether the High Court has any jurisdiction at all to deal with an appeal under section 204 arising from a review conducted under section 202. Judge Gullick holds that section 42 of the County Courts Act 1984 provides discretion to transfer ‘any proceedings’ of the County Court to the High Court and that, since the respondent had not challenged the transfer Order at any point, the High Court has ongoing jurisdiction to hear the case.
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Judge Guillick then moves on to consider the appellant’s grounds of appeal -
Ground 1: Priority need under section 189(1)(d) of the 1996 Act because of homelessness as a result of the COVID-19 pandemic
While the appellant submitted that the onset of the COVID-19 pandemic in early 2020 was an ‘emergency’ within the meaning of section 189(1)(d), and he was homeless as a result of that emergency as it superseded the conduct that led to his departure from the YMCA hostel in the summer of 2019, Judge Gullick rejects the approach.
He does so on the ground that it had not been raised with the respondent prior to the review decision under appeal. While the appellant’s solicitors had raised section 189(1)(d) in relation to the offer of unsuitable accommodation as part of the ‘Everyone In’ scheme in April 2020, Judge Gillick holds that the failure to deal with the argument now pursued on the appeal, but which was not put to the respondent, discloses no error of law and the point as it is now put is not so obvious that the respondent ought to have dealt with it.
In addition, Judge Gullick considers that, even if it were now open to the appellant to take the point on this appeal, there is no evidence to back up the assertion made by the appellant’s solicitor that the YMCA accommodation that the appellant was occupying in 2019, prior to the onset of the COVID-19 pandemic, would have become unsuitable for him to occupy at any point during the pandemic.
Finally, Judge Gullick considers whether to provide obiter comments on issues of causation and the scope of the definition of ‘emergency’ in section 189(1)(d), but declines to do so -
‘The issue of whether the appellant was homeless ‘as a result of an emergency’ is inextricably linked to the factual question of whether, and if so when and for what reasons, the YMCA accommodation which the appellant was required to leave would have become unsuitable for him to occupy. I do not consider that it would be appropriate for me to opine, in the absence of a proper factual basis, on the issues of causation and of the scope of the definition of ‘emergency’ in section 189(1)(d) that would have arisen for decision if there had been better evidence supporting the appellant's case.’ (paragraph 68)
Ground 2: The respondent did not deal adequately with the argument that the appellant was vulnerable under section 189(1)(c) of the 1996 Act
Having reviewed guidance and correspondence issued by the UK and Welsh Governments on housing rough sleepers during the COVID-19 pandemic and the definition of vulnerability in the 1996 Act and the Housing (Wales) Act 2014, Judge Gullick holds that -
‘The question asked under section 189(1)(c) of the 1996 Act requires an assessment of whether the individual who has applied for assistance is significantly more vulnerable to harm than an ordinary person when homeless. I accept Ms Rowlands' [counsel for the respondent] submission that the contention advanced on behalf of the appellant that all those sleeping rough during the COVID-19 pandemic meet the statutory test seeks to introduce a distinction between different categories of homeless persons which is not present in the legislation, and which Lord Neuberger said at [42] of his judgment in Hotak [2015] UKSC 30 should not be made. The comparison that the statute requires to be made is between the applicant and the ordinary person if made homeless (see Hotak at [58]). It is not between rough sleepers, as a sub-category of homeless people, and others.’ (paragraph 74)
Gong on to assess the appellant’s particular circumstances against the comparison required by the statue, Judge Gullick rules that the review decision process gave adequate consideration to the issue and was not erroneous in law.
Grounds 3 and 4
Turning to the appellant’s final two grounds of appeal - relating to how evidence concerning the basis for the appellant’s award of personal independence payment was treated by the reviewing officer and whether a functionality test was applied when determining whether or not the appellant was in priority need - Judge Gullick finds no basis to support either ground of appeal.
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Having ruled that none of the four grounds of appeal has been made out, Judge Gullick dismisses the appeal.
Bankole-Jones v Watford Borough Council [2020] EWHC 3100 (Admin)
24 November, 2020
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