19 May, 2022 Open access
19 May, 2022 Open access
R(Cort) v London Borough of Lambeth [2022] EWHC 1085 (Admin)
The claimant was a 68-year-old woman from Guyana who had no immigration status in the UK and no recourse to public funds (NRPF). Through judicial review proceedings, she sought to challenge the decision of the London Borough of Lambeth not to provide her with emergency accommodation to avoid her sleeping on the streets during the Covid 19 pandemic. This decision was first provided on 15 June 2021, confirmed on 21 June 2021, and further expanded on 20 July 2021 after the claim for judicial review had been issued.
Introducing his judgment, His Honour Judge Graham Wood QC says that -
'This claim, (and doubtless the request for emergency accommodation which preceded it), has come about in the aftermath of the decision of the High Court in R (Ncube) v Brighton and Hove City Council [2021] EWHC (Admin) 578, (Ncube) where it was held that a local authority was not precluded from providing temporary accommodation to the street homeless by virtue of section 185 of the Housing Act 1996 (part VII) and that other powers existed on a broader basis under section 138 (1) of the Local Government Act 1972 (LGA) and section 2B(3) of the National Health Service Act 2006 (NHSA), although neither sections specified housing provision, and these were powers which could be exercised to alleviate the effect of those who were at risk to their health or wellbeing as a consequence of the Covid 19 pandemic emergency.' (paragraph 2)
Judge Wood says that -
'... the court is being asked to consider the significance in the local authority decision-making process on the street homeless of a declared government initiative or policy described as 'Everyone In' which was announced at the start of the Covid pandemic, and which was aimed at removing rough sleepers from the streets regardless of their entitlement to public fund assistance not only to avoid the spread of infection, but also to protect those most vulnerable. The initiative lay at the centre of the decision in Ncube and in R (ZLL) v Secretary of State for Housing Communities and Local Government [2022] EWHC 85 (Admin) (ZLL) ...' (paragraph 3)
Having considered the judgments in Ncube and ZLL in detail, Judge Wood says that, while neither are determinative of the present case, there are three basic principles which can be drawn from those authorities which are of application to this challenge -
'The first, and most obvious, is that a local authority has broad and generally unfettered powers which can be used to deal with the street homeless in the course of the Covid 19 pandemic, and the discretion arising from those powers is not limited to those with legitimate immigration status.
The second is that it is a matter for each individual local authority when faced with an application by a rough sleeper as to whether those powers should be exercised, taking into account the personal needs of the applicant, its own resources, and such other measures as may be appropriate to diminish the risk which the applicant might face in the prevailing public health emergency. It was, as counsel says, a matter of 'evaluative judgment'.
Third the Everyone In initiative, as it has been described, does not have the status of a prescriptive policy amenable to public law challenge, but it is an aspirational exhortation, and should inform the approach taken by local authorities when exercising the identified statutory powers under NHSA and LGA, especially insofar as it has been accompanied by funding.' (paragraphs 82 to 84)
Judge Wood then turns to the three areas of challenge which were summarised in the claimant’s skeleton argument as being absence of policy, arbitrariness, and relevance/irrelevance.
Absence of policy
Judge Wood notes that there was no dispute that Lambeth had not adopted or implemented any specific policy as to how it might exercise its powers under the NHSA and LGA towards the street homeless, in particular those who were of NRPF, and that the first mention of a policy arose in relation to the broader Covid-19 preventative policy in the third decision letter. Judge Wood also notes that it was accepted that Lambeth's Covid-19 Outbreak Management Plan (OMP) did not refer to the identified powers, or the Everyone In initiative and any aspect of accommodation provision for the street homeless, save in respect of accommodation being considered for those who have to self-isolate after infection.
Judge Wood goes on to say that -
'Whilst there will be significant divergence between local authorities in terms of resources and needs, and the [Everyone In] policy outlined above was clearly emerging at a time when the country was in substantial lockdown restriction, and further, the fact that one authority adopts a policy and another does not in response to a national initiative could not of itself render the decision-making process unlawful, it is noted that the Defendant in the present case has provided no disclosure in relation to any material addressing its response to the national initiative, whether by way of a policy or otherwise. Further, there is no evidence dealing with the housing of any street homeless prior to the Claimant’s application. Such information as is available is derived from the statistical tables as to those who had been removed from the streets in the London boroughs. This court is simply in the dark as to how the Defendant proposed to respond to the national initiative, or as to how it responded in the past. (paragraph 91)
Judge Wood adds that -
'Although reference was made to the Everyone In policy in 15 June letter, in my judgment it is a valid criticism that there was no identification of any criteria which might be applied to determine those who are in need and those who are not. This was particularly important because the statement is made by the Defendant that the policy was primarily directed at rough sleepers with no additional funding provided for those with no recourse to public funds. This implies that at some stage an assessment had been made as to how funds might be administered, or perhaps that consideration had been given to an approach which would exclude those of NRPF.' (paragraph 92)
Finding that the second letter provided no further elucidation on the part of Lambeth as to any criteria which might have determined an application for emergency temporary accommodation, Judge Wood says that -
'It seems to me that the requirements of local policy guidance / criteria for those who might make such an application following the launching of the Everyone In initiative in March 2020 did not constitute a big 'ask. It was incumbent on the Defendant authority to consider its own position in the light of the national exhortation to house all the street homeless, including those of NRPF.' (paragraph 95)
The arbitrariness of the outcome decision
Judge Wood says that a decision that has not been informed by a policy or criteria is arbitrary, in the sense that it has been arrived at on an ad hoc basis, and that he would have little difficulty in coming to the conclusion that the challenge would succeed on that basis were it dependent on the lawfulness of the first two decisions.
However, in relation to the third decision - in which Lambeth's director of public health Ms Hutt reviewed the previous two decisions before offering to accommodate the claimant for a period of not more than 14 days should she test positive for Covid-19 - Judge Wood says -
'In my judgment whilst 'moving the goalposts' as it has been described can be suggestive of an arbitrary decision, it seems to me that the Defendant was entitled to review its earlier decision, passing responsibility to the director of public health, who may have arrived at a different basis for refusing or granting the application as the case may be. The director of public health was entitled to apply different considerations if ultimately she held the 'whip hand' so to speak in the decision-making process. On this basis, I would not find the decision unlawful, although as indicated above, that is not the end of the matter.' (paragraph 100)
Failure to identify relevant and irrelevant considerations
Judge Wood says that the reference to the claimant’s immigration status and the fact that she had no recourse to public funds raised concerns that the decision had been informed by irrelevant matters -
'The point is validly made by counsel for the Claimant that this was the very reason why she was seeking assistance, in the light of Ncube , via the route of the broader discretionary powers available under LGA and NHSA. I accept the argument that it should not have been a factor weighed in the balance for excluding an entitlement to accommodation, although it is not entirely clear how the Defendant was approaching this.' (paragraph 102)
However, Judge Wood adds that, in his judgment, it was the absence of an appropriate and relevant consideration of the effect of the national policy and exhortation in Everyone In, which was supported by funding to provide accommodation for the street homeless, regardless of immigration status, which rendered the decision-making process flawed -
'Whilst there was a limited reference to Everyone In in the first decision letter, there was no indication as to how it was going to be applied or that those of NRPF would ever be entitled to accommodation. The second letter did not make any reference to the national initiative or the authority’s powers which existed under LGA and NHSA. The third letter, whilst undoubtedly comprehensive as to the public health measures which were being put in place for all residents in the Lambeth borough, regardless of the immigration status or recourse to public funds, did not make any mention of the national initiative of Everyone In , or the request which had emanated from central government approximately 15 months earlier that all persons should be accommodated regardless of their status to prevent their infection from Covid 19 and of course the risk to their health. Instead it was fixated on preventing the spread of the infection, and utilising the statutory powers referred to, in order to discharge any duty which was owed. Insofar as Ms Hutt relied upon the OMP, a scrutiny of that guidance/policy document does not reveal any reference to the street homeless, or the extent to which those who were sleeping rough could be protected, bearing in mind, as the document acknowledged, that there was still a very high risk of infection spread.' (paragraph 103)
As a result, Judge Wood concludes that -
'The absence of this reference, in my judgment, means that an important and informative relevant consideration was missing from the decision-making process, not only in the earlier letters, but in the key decision letter in July 2021. It removes any confidence which this court can have that the decision was made on the correct basis, and thus renders the decision flawed in public law terms.' (paragraph 105)
R(Cort) v London Borough of Lambeth [2022] EWHC 1085 (Admin)
11 May, 2022
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