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20 January, 2022 Open access

High Court dismisses judicial review that argued that the Housing Secretary was in breach of public law duties by adopting an unpublished position when taking steps to curtail the Everyone In initiative

ZLL, R (On the Application Of) v Secretary of State for Housing, Communities and Local Government [2022] EWHC 85 (Admin)

Background

The claimant was a Chinese national whose immigration status meant that he had no recourse to public funds (NRPF). Between March 2020 and April 2021, he was accommodated in a series of homeless shelters operated by various charities. In April 2021 he approached the First Interested Party (Camden LBC) for accommodation, relying on the Everyone In initiative.

Camden accepted that it had a discretion to accommodate the claimant but said it had decided not to exercise that discretion in his case, because he was NRPF and not within the ‘most vulnerable and at-risk group of rough sleepers' - a distinction outlined in guidance that was issued to local councils in May 2020 about the 'next phase of accommodating rough sleepers to ensure they stay safe during the pandemic'.

While a claim for judicial review was made against Camden's decision, this was stayed pending resolution of the wider claim brought in the present case in which the claimant challenges the decision of the defendant (the Secretary of State for Housing, Communities and Local Government) to curtail the Everyone In initiative on the grounds that he breached public law duties by -

Issues before the High Court

Whether the Housing Secretary was in breach of public law duties by adopting an unpublished position when taking steps to curtail the Everyone In initiative / whether there was also a breach of public law duties in not conducting a consultation with Shelter prior to changing the policy.

Decision

Mr Justice Fordham dismisses the judicial review.

Reasons

Fordham J provides a detailed history of the government’s communications about the Everyone In initiative from the start of the Covid-19 pandemic, and about changes to the scope of the initiative as the pandemic progressed. In particular, he highlights the defendant’s position as stated in two documents generated in the course of the claim -

‘[The defendant] has been wholly transparent in its actions. ‘Everyone In’ was not a permanent programme. Our client was transparent about the funding that was provided under it, and has been transparent about the fact that funding will not continue in the same way as the situation in England changes. [The defendant] has written to local authorities making clear the still substantial additional resources that [the defendant is] providing to local authorities in relation to the present stage of the epidemic. It remains the case - as it has always been - that it is for local authorities to decide how to exercise their statutory functions in light of local conditions and their assessment in individual cases.’

‘The Next Steps Accommodation Programme introduced in July 2020 is described in detailed guidance which makes no reference to Everyone In. In September 2020, the Minister described that programme as being ‘launched’ as ‘part of’ the ‘Everyone In’ initiative; but that only underscores that ‘Everyone In’ does not identify with clarity any particular policy or guidance or decision. The ‘Protect Programme’ was described as running ‘alongside’ ‘Everyone In’. Thousands of people accommodated in March 2020 in response to the 26 March 2020 letter remain accommodated, and the Government has made a succession of decisions to provide additional funding for move-on accommodation to support local authorities in preventing people from returning to the streets. In that broad sense the work of ‘Everyone In’ has continued; but it is not a term that can be fixed to a particular policy or guidance or funding decision and so there has been no decision to ‘end’ it.’

Observing that to successfully raise a public law challenge to the defendant’s approach as summarised in these two letters, the claimant (represented by counsel Mr Burton QC) has to establish that key duties have been breached, Fordham J sets out a range of duties that apply in the present case (at paragraph 7 of the judgment). He identifies two of these duties as particularly relevant -

Examining these duties in the context of the Everyone In initiative, Fordham J reaches the conclusion that -

‘In my judgment, when the judicial review Court is asked in this case to apply the disciplined objective legal standards of the 'duty of conformity' and the 'duty of publication' to the various phases of Government communications in the context of the Everyone In initiative, what the Court encounters is an elusiveness, a fluidity, and an ambiguity in those communications. It is difficult - and it becomes the more difficult, the more detailed and in-depth the scrutiny - to derive a solid 'foothold' as to what precisely the Everyone In initiative meant and entailed, and at different times in the chronology.’ (paragraph 44)

In addition, Fordham J says that despite question-marks existing about the clarity and straightforwardness of the government’s messaging in relation to the Everyone In initiative -

‘… these do not engage the public law 'duty of conformity' and 'duty of publication'. In those circumstances - and absent any unreasonableness or breach of any legitimate expectation - the resolution of those question-marks belongs to the arena of public opinion, and of political and democratic accountability.’ (paragraph 44)

Providing further reasons for rejecting Mr Burton’s submissions, Fordham J adds that -

‘… what he cannot, in my judgment, establish is 'prescriptive policy guidance' engaging the public law 'duty of conformity', whose modification or discontinuance then engages the 'duty of publication'. And alongside all of that, it is appropriate to grapple with the legal logic of the claimant's case, if it were correct. If Mr Burton QC's analysis is right, it would mean that every rough sleeper has had - and continues to the present day to have - an 'entitlement of conformity' under the Everyone In initiative, as previously publicly announced by the defendant, which 'entitlement' continues unless and until there is a publicly stated curtailment or withdrawal of that initiative along the lines of [the defendant's pleaded defence]. I cannot accept that these duties are engaged. And I cannot accept that these consequences arise….' (paragraph 44)

As a result of these conclusions, Fordham J dismisses the claimant’s first ground of appeal.

Having also found that the defendant was not in breach of public law duties as regards their failure to consult with Shelter before changing its policy, Fordham J dismisses the claimant's second ground of appeal and, accordingly, dismisses the judicial review, stating in closing comments that -

‘The claimant's representatives have brought before the judicial review Court, for detailed examination and scrutiny, a sequence of events relating to a government rough sleepers initiative with the resonant and inclusive title of 'Everyone In'. Insofar as there are open questions about how that aspect of Government policy was expressed and communicated, how it ebbed and flowed, how it was understood, and how NGOs were engaged along the way, those questions belong in the arenas of public opinion and of politics. The role of the judicial review Court, in the exercise of its supervisory jurisdiction, is to apply carefully delineated objective legal standards, to secure accountability of public authorities to law. The objective legal standards invoked in this case were not breached.’ (paragraph 56)