Housing Law – Mohammed – an insurmountable mountain?

A homeless person may apply to a local authority for housing under part VII of the Housing Act 1996. While his application is being considered, the local authority have an obligation to provide him with accommodation (s.188(1)). Once the local authority’s decision has been taken and communicated to the applicant, the obligation ceases. The applicant has the right to request a review of any adverse finding (s.202). While the local authority is carrying out the review process, they have a power to provide the applicant with accommodation (s.188(3)).Once the review process has been completed, and the result communicated to the applicant, this power comes to an end. The applicant has the right to appeal to the County Court against an adverse decision on review (s.204). Pending resolution of the appeal, the local authority once again have a power to provide accommodation (s.204(4)).

These decisions whether or not to accommodate pending review/appeal are themselves open to challenge. Pending review, application must be made to the High Court for Judicial Review. Pending appeal, application is made to the County Court.

Three main cases deal with the principles which the Courts should apply (which are the same, whether in the High Court or the County Court). These are: R v Camden LBC exp. Mohammed (1997) 30 HLR 315, R v Brighton & Hove CC exp. Nacion (1999) 31 HLR 1095 and Francis v Kensington & Chelsea LBC [2003] 2 AllER 1052.

In Mohammed the applicant was fleeing domestic violence. She applied to Camden for accommodation. Camden effectively disbelieved her account of the violence, because of inconsistencies in her accounts. She was never asked to explain the inconsistencies. Ms Mohammed sought a review of the decision and accommodation pending review. Camden refused to provide accommodation pending review. On Judicial review, Latham J held that it was lawful for an authority to exercise its discretion only in exceptional circumstances. However, in exercising the discretion, certain matters would always require consideration: (a) the merits of the substantive case, (b) whether there was new material on review that could effect the decision, (c) the personal circumstances of the applicant. Latham J held that the failure by the Camden to ask the applicant to explain the perceived inconsistencies in her account meant that the decision was tainted with unfairness, that therefore the decision on interim accommodation was taken without the benefit of her responses and was therefore itself flawed. He allowed the appeal.

In Nacion, the Court of Appeal (Tuckey LJ) expressly endorsed the approach taken in Mohammed. He went on to find that, where an authority had considered the factors set out in Mohammed it would be “an entirely futile exercise” to apply for judicial review. Woolf MR added that if an authority failed even to consider their discretion, there would be grounds for review, but that otherwise “it [was] difficult to envisage” cases where judicial review would be appropriate. It would only be in “exceptional” circumstances that the Court would exercise its discretion in the applicant’s favour.

In Francis the question for decision by the Court of Appeal was whether the principles applicable on an application under s.204A to the County Court were the same as those applicable on judicial review, or whether the County Court should apply the ordinary interim injunction criteria (Cyanamid). The Court of Appeal held that judicial review principles applied on an application to the County Court under s.204A.

In the County Court, the Judge had considered whether he ought to take at least a preliminary view on the prospects of success of the substantive appeal. He took the view that there was at least “a serious issue to be tried” as to whether the local authority had correctly applied the law in relation to the question of priority need. However, he concluded that he should not even begin to consider the merits of the substantive appeal. The Court of Appeal endorsed this view. Once again, Mohammed was cited with approval (as was Nacion). Simon Brown LJ held that, as long as it was clear that the local authority had addressed its mind to the factors set out in Mohammed, then the decision would be unimpeachable. There was “no question of the county court… embarking upon any review of the merits of the main appeal”.

Comment

Advisers assisting homeless persons are frequently confronted with applicants who are seeking a review or an appeal of a negative decision on their application, and who have been refused accommodation in the meantime. Many local authorities now have fairly standard letters which set out the Mohammed criteria, and the fact that they have been considered. If Francis is read literally it seems that however obviously bad the substantive decision is, this will not matter, as long as the decision on interim accommodation follows the Mohammed form. However, this may not necessarily be the case. The basis of the successful judicial review in Mohammed was that the local authority had treated the applicant unfairly in relation to the substantive application (which was therefore flawed) so that they did not have all the information they should have done when considering whether or not to give accommodation pending review. The merits of the substantive decision were clearly considered by the Court. This cannot therefore sit easily with the approach advocated in Francis, that the merits of the substantive decision should be ignored entirely, yet Mohammed is expressly cited with approval in Francis. The answer must be that, when the Court considers whether the local authority have applied the Mohammed criteria or not, it can look at the merits of the substantive decision where that decision is obviously and glaringly wrong. Where the glaring error leads (as in Mohammed) to the local authority not having all the information with which to make a proper decision on interim accommodation, then that decision will be flawed. Equally, if the error in the substantive decision is a misdirection on the law which is so glaring that it could be said that it was perverse for it to be endorsed when interim accommodation is considered, that decision will also be flawed.

Conclusion

The decision in Francis is the latest in a line of authorities designed to limit drastically the number of applications to challenge local authorities’ decisions on accommodation pending review or appeal. If read literally, the decision will have closed the door to such applications entirely, where the local authority has purported to exercise its discretion and written a “Mohammed compliant” letter. However, for the reasons given there is an argument that, even where there is such a letter, there can still be an application. However, it must be anticipated that the error in the substantive decision upon which such an application could be based will have to be glaring and obvious in order to interest the Courts.