Yekini, R (On the Application Of) v London Borough of Southwark, Court of Appeal - Administrative Court, March 28, 2014, [2014] EWHC 2096 (Admin)

Issuing Organization:Administrative Court
Actores:Yekini, R (On the Application Of) v London Borough of Southwark
Resolution Date:March 28, 2014
 
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Neutral Citation Number: [2014] EWHC 2096 (Admin)

Case No: CO/8975/2013

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Royal Courts of Justice

Strand

London WC2A 2LL

Date: Friday, 28 March 2014

B e f o r e:

MICHAEL FORDHAM QC

(SITTING AS A DEPUTY HIGH COURT JUDGE)

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Between:

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Mr Adrian Berry (instructed by Cambridge House Law Centre) appeared on behalf of the Claimant

Mr Donald Broatch (instructed by Southwark LBC Legal Department) appeared on behalf of the Defendant

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J U D G M E N TTHE DEPUTY JUDGE:

Introduction

1. This is a claim for judicial review with the permission of Andrews J granted on 5 November 2013. In essence, the case is about the application of Part VII of the Housing Act 1996, in particular sections 193(2) and 206, and the Children Act 1989 section 17, in the context of a "Zambrano carer" where such a person had applied for Part VII housing assistance prior to 8 November 2012. The concept of a Zambrano carer, being derivative residence under EU law, derives from the case of Zambrano [2012] QB 265 and is described in regulation 15A(4)(a) of the Immigration (European Economic Area) Regulations 2006 SI 2006/1003. It involves an individual who is primary carer of a British citizen resident in the UK in circumstances where the British citizen would be unable to reside in the UK or another EEA State if that carer were required to leave. The British citizen in the present case is a little boy, aged four.

2. The key facts are as follows. In February 2012 the claimant, who is the mother of that little boy, made an application for Part VII housing assistance. On 4 March 2013, the defendant local housing authority formally communicated its positive decision on the claimant's Part VII eligibility for assistance with accommodation. The defendant was accordingly satisfied of the requirements arising under section 193(1) of the 1996 Act and owed the duty in section 193(2) in circumstances where it was for the defendant to satisfy itself on the question of the claimant's eligibility (see section 184(1)(a), section 185(2) and regulations thereunder).

3. On 14 March 2013 the defendant terminated the claimant's licence to occupy hostel accommodation on the basis of rent arrears in an amount just under £2,000. The claimant was evicted. In taking that action, the defendant, in the light of its views as to the proper interpretation of the 1996 Act, declined to acknowledge any power to allow the claimant to stay in housing on the basis of a nil or peppercorn rent. The key provision in that regard, to which I will return, is section 206(2)(a).

4. From 2 April 2013, the claimant and her children were accommodated on an ongoing basis in bed and breakfast accommodation. That action was taken pursuant to statutory powers to safeguard and promote the welfare of children in need under section 17 of the 1989 Act. In particular, section 17(6) which empowers a local authority to provide accommodation; and section 17 (7), which provides that such assistance may be unconditional as to any repayment required of those who are accommodated. In taking that action pursuant to that statutory provision the defendant, as local housing authority, again by reference to its interpretation of the 1996 Act, declined to recognise any suitability requirement as might arise under that scheme in relation to B&B accommodation, and in particular the provisions of the Homelessness (Suitability of Accommodation)(England) Order 2003 SI 2003/3326, articles 3 and 4, which include what, on the face of it, is a six-week maximum for B&B accommodation to be regarded as suitable.

5. On 11 July 2013, the claimant lodged this claim for judicial review, contending in particular that the defendant had misappreciated the statutory schemes and defaulted on its statutory duties under the 1996 Act, including in its approach to section 206(2)(a).

6. Subsequently there were two key developments. First, on 9 January 2014 the Secretary of State for the Home Department, to whom the claimant had made an application for a derivative residence card on the basis that she was a Zambrano carer, refused that application. That was a matter which arose under the Immigration (European Economic Area) Regulations 2006 SI 2006/1003: see regulations 15A and 18A. In her reasoned decision letter, with a deemed date of service of 15 January 2014, the Secretary of State explained that in her view there needed to be compelling reason presented as to why the British citizen child's father could not assume full parental responsibility for his care and the Secretary of State was not satisfied that adequate evidence on that point had been supplied by the claimant. That decision is the subject of an appeal.

7. Secondly, on 3 March 2014, the claimant moved out of temporary B&B accommodation and into self-contained accommodation in Rochdale with her three children, ages one, four and seven. That was arranged by the defendant social services department by reference to section 17(6) of the 1989 Act. At that stage too, in the light of the defendant local housing authority's interpretation of the 1996 Act, it was not acknowledged or recognised that any relevant duties as to substance or procedure, including in relation to prescribed approaches to suitability of accommodation, needed to be fulfilled. The story is told very helpfully in a witness statement by the defendant's Mr Swift, dated 24 March 2014.

The Zambrano predicament

8. In his written and oral submissions, Mr Broatch, for the defendant, described as a "predicament" the position in which a local housing authority is placed in circumstances where the claimant is (but as in the present case has now been put into doubt) a Zambrano carer. I agree with Mr Broatch's characterisation of the situation which the statutory scheme has produced.

9. Essentially, two things happened in that scheme on 8 November 2012. The first related to eligibility for Part VII housing assistance and the second related to eligibility for housing benefit.

10. As to the first, the Zambrano carer's eligibility for Part VII assistance was removed by 2012 Regulations: see the Allocation of Housing and Homelessness (Eligibility) (England) (Amendment) Regulations 2012 SI 2012/2588 and in particular regulation 2. That was an exclusion of a category of persons in the context of eligibility under the 1996 Act. It took effect from 8 November 2012, but deliberately subject to express transitional provisions in regulation 3. This regulation provided that the new amendments were not to have effect in relation to (for present purposes) an application for Part VII 1996 Act housing assistance provided that that application had been made before the coming into force of the Regulations; that is to say, prior to 8 November 2012.

11. As to the second, eligibility for housing benefit in the case of a Zambrano carer was removed at the same time in provisions made entitled the Social Security (Habitual Residence) (Amendment) Regulations 2012 SI 2012/2587: see regulation 5. Mercifully, it is not necessary to go into the detail of the housing benefit scheme. It is common ground that there was previously a housing benefit entitlement that was removed from that date. However, that exclusion contained no equivalent transitional provision protecting the pre-8 November 2012 applicant. Counsel on both sides told me that, so far as they were aware, it is the first time that a Part VII 1996 Act entitlement has not been matched by housing benefit eligibility in the case of impecunious individuals affected by these provisions.

12. The ``predicament'', therefore, for the individual and the relevant local housing authority was that the situation could arise where there was both the right to housing assistance but also any inability to meet the rent in the light of the absence of housing benefit. To complete the predicament, it is also common ground that the mere inability to meet rent, such as might trigger the ability to repossess and evict, would not of itself constitute intentional homelessness so as to bring a 1996 Act duty owed to the relevant individual to an end for the purposes of section 193(6).

The key questions of law

13. For the claimant, Mr Berry advances two key propositions. Firstly, he submits that section 206(2) of the 1996 Act on its proper interpretation would empower a local housing authority, in principle, to charge a nil rent or peppercorn rent. I have already indicated the materiality of that first proposition in the facts and circumstances of the present case. Indeed, in correspondence (for example a letter dated 19 February 2013) the defendant had expressly ruled out, as being legally impermissible, the provision of rent-free accommodation under Part VII. That remains its position as to the proper interpretation of the statutory scheme and I have heard submissions in relation to that issue.

14. The second key proposition advanced by Mr Berry is as follows. Where a duty to secure housing assistance arises under section 193(1) and (2) of the 1996 Act, and that duty has not ceased in a statutorily prescribed way (see section 193(3)), the duties and requirements of Part VII imposed by Parliament on the local housing authority continue. They continue, he submits, even where action has been taken, in the case of an impecunious individual unable to pay any significant amount of rent, and where such provision as is made for that person constitutes accommodation provided for all children in need under section 17(6) of the 1989 Act.

15. The materiality to this case of that second proposition is clear from the narrative above. The...

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