Judicial review of decisions in homelessness cases

Judicial review in respect of homelessness matters is a legal remedy available only in the High Court. It can be used to challenge certain decisions, actions or failures to act of public bodies, such as local authorities in the exercise of their public functions. It is also a way of compelling a local authority to make a decision or to exercise discretion where Parliament has placed the local authority under a duty.

Judicial review has certain limits. It is not a further right of appeal. Parliament intended that the local authority, rather than the court, should be the fact-finder and the decision maker in homelessness cases.[1] The court cannot intervene simply because it disagrees with a public body's decision and would have made a different decision itself. Furthermore, judicial review is not available where the applicant has an alternative remedy available (eg statutory review or appeal in the county court),[2] or simply because the applicant has missed the time limit to bring an appeal.

An applicant who wishes to apply for judicial review should normally be referred to a solicitor. Public funding may be available for representation. The Administrative Court judicial review guide prepared under the direction of the lead Judge of the Administrative Court provides a general explanation of the work and practice of the Court with particular regard to judicial review. It does not have the force of law, but parties using the Administrative Court will be expected to act in accordance with it.

The following grounds can be used as a basis for judicial review challenge. Where appropriate they will also form the basis of a county court appeal. The grounds include where an authority:

• ignores relevant factors

• takes into account irrelevant factors

• fails to direct itself properly in law (ie the authority fails to follow statute law, case law which has interpreted how the law should be applied and relevant statutory guidance)

• reverses the burden of proof or imposes too high a burden of proof on the applicant

• fails to give the applicant the benefit of the doubt

• fails to make findings of fact

• fails to give adequate reasons for its decision[3]

• reaches a decision totally at variance with the facts or for which there is no factual basis for the decision

• fails to act in accordance with the objects and principles of the Act in question

• has fettered its discretion (often referred to as operating blanket policies) or has delegated decision-making to an unauthorised body

• goes back on a legitimate expectation

• acts dishonestly or in bad faith (this is normally very difficult to prove)

• comes to a decision which is perverse or irrational, ie a decision so unreasonable that no reasonable authority could have come to it (this is also very difficult to prove)

• is in breach of its statutory duties, including the public sector equality duty

In many homelessness cases, even if an authority makes a decision that could be challenged by judicial review, the client will have an alternative remedy – either an internal review or an appeal to the county court. Judicial review is not available where the applicant has an alternative remedy available.[4]

Certain homelessness decisions are not subject to the statutory right of review. If these are to be challenged, they can only be challenged by way of judicial review. 

These include where a local authority:

• refuses to accept a homeless application, including a reapplication on different facts

• fails to carry out an assessment of the applicant's needs or provide a personalised housing plan (PHP)

• includes unreasonable steps for the applicant in a personalised housing plan

• fails to commence taking steps to prevent homelessness or relieve homelessness

• operates a blanket policy not to use its power to secure accommodation to prevent or relieve homelessness

• refuses to provide accommodation pending review

• refuses to provide interim accommodation or provides unsuitable interim accommodation

• accommodates someone who is pregnant or has dependent children in bed and breakfast accommodation for longer than six weeks where no exception applies

• decides to refer to another authority at the relief stage, or chooses not to make a referral at any stage

• refuses to make a fresh decision on suitability following a change in circumstances

Case law on challenging suitability of interim accommodation by judicial review

In one case, it was held unreasonable for a London borough to discharge its statutory obligations by providing temporary accommodation in Birmingham to a woman with three young children.[5] She did not speak English and had no friends and family in Birmingham. She suffered from epilepsy, her absent partner was keen to maintain contact with his children and the move would entail a further school move for the children. Although the basis of the placement was temporary, the local authority knew that it would be for a far longer period. There was no evidence that there was no cost-effective temporary accommodation in the borough or that the only way the local authority could meet its statutory obligation under s.188 of the Housing Act 1996 was by sending the applicant to Birmingham. However, this was an exceptional case and authorities have a great deal of latitude in determining suitability.

In another case, the local authority made two offers of interim accommodation for the applicant and her grandson under its section 188 duty.[6] The applicant refused one property because it had entrance steps that she was unable to descend without assistance and refused the other because her grandson would have to sleep in the living room. The court rejected her challenge. The drawbacks of each property were not serious enough to render them unsuitable for the purposes of the interim duty.

An application for judicial review should be started no later than three months after the grounds to make the claim first arose.[7]

The time limit cannot be extended by any of the parties involved. A late application may be allowed if the claimant can show good reason for the delay. If a delay would prejudice or cause substantial harm to third parties, then the request can be refused.[8] However, there are exceptions to these general rules.

In practice, in homelessness cases, the judicial review will normally arise in an emergency (for example failure to accept a homeless application and/or provide interim accommodation pending a review) and therefore delay tends not to be an issue.

Specialist advice from a solicitor will be needed to prepare a judicial review. The most important practical steps are to establish whether the client has a case, whether the client is entitled to legal help and, if so, to refer the client to a solicitor without delay so that a claim can be issued within the time limit of three months from the date the matter complained of first arose.

The Administrative Court judicial review guide prepared under the direction of the lead Judge of the Administrative Court provides a general explanation of the work and practice of the Court with particular regard to judicial review. It does not have the force of law, but parties using the Administrative Court will be expected to act in accordance with it.

The requirements of the Pre-action Protocol for Judicial Review must also be complied with before issuing a claim, except in urgent cases.

Challenging a local authority by way of judicial review can be extremely costly. Most clients will need to apply for legal aid from the Legal Aid Agency.

Details of what kind of work is covered by legal aid are contained in Annex C of the Pre-action Protocol for Judicial Review.

Information about finding a local solicitor who may be able to assist is available from the Civil Legal Adviser Finder.

Funding is based on a person's income. Initial advice can be paid for under the legal help scheme (formerly known as the 'green form scheme'). The help that a solicitor can give under the scheme is, however, normally limited to a letter before action.

To proceed further with the case, a solicitor will need to apply for a full funding certificate and, if necessary, an emergency funding certificate. Normally, cases needing judicial review arise as emergencies and a client will be granted an emergency public funding certificate. The key issues will be the client's means and the merits of the case.

Read more about legal aid for housing problems on Shelter Legal.

Solicitors acting for clients or litigants in person in judicial review cases will follow the procedure set down in Part 54 of the Civil Procedure Rules, and the accompanying judicial review pre-action protocol. Judicial review is conducted in two stages:

• an application for permission to apply for judicial review (often coupled with an application for an injunction)

• a full hearing of the case if permission has been granted

Before commencing the judicial review procedure, a 'letter before claim' should be sent to the local authority in an attempt to settle the matter. The judicial review pre-action protocol contains a requirement for a letter before claim to be sent, giving at least 14 days for the local authority to provide a satisfactory answer. The letter before claim could be sent by an adviser who is familiar with the procedure, but generally, if the case is going to be dealt with by a solicitor, the formal letter before claim should be sent by the solicitor.

The Administrative Court judicial review guide prepared under the direction of the lead Judge of the Administrative Court provides a general explanation of the work and practice of the Court with particular regard to judicial review. It does not have the force of law, but parties using the Administrative Court will be expected to act in accordance with it.

Applications for permission must be made promptly.[9] The application should be made on the judicial review claim form N461. This should include:

• a detailed statement of the claimant's grounds for bringing the claim for judicial review

• any remedy (including any interim remedy) being sought

• a statement of the facts being relied on. These are often set out in a witness statement attached to the claim form.

• any written evidence in support of the claim

• a copy of any decision letter that the claimant seeks to have quashed

• copies of any documents on which the claimant proposes to rely, eg relevant correspondence

• copies of any relevant statutory material

• a list of essential documents for advance reading by the court

Permission should be granted if, on the material available, the court thinks there is an arguable case for granting the remedy sought by the applicant.

The application for permission is usually dealt with by the court without a hearing. The local authority has 35 days to file and serve a response.

If permission is granted then there is a hearing. It is unlikely that there will be any oral evidence and so the hearing will consist entirely of speeches by the advocates and questions from the judge.

At the hearing the court has available the remedies set out below. The court can use any one of these remedies alone or more than one simultaneously.

Quashing order

The court makes this order to quash an invalid decision that has been made by a public body. However, the authority can look at the case again but reach the same, adverse decision.[10]

Mandatory order

A mandatory order compels the performance of a public duty, eg to make social services carry out an assessment of a child. Performance of a public duty also includes the duty to exercise discretion so as to make a decision, eg to make a housing authority properly exercise discretion when considering a request to provide temporary accommodation pending the outcome of a review of a homelessness application.

Prohibiting order

A prohibiting order prevents a public body from acting illegally, irrationally or improperly. It is not used very often in housing law as most orders sought require a positive action to be taken by the public body.

Declarations

A declaration is when the court declares the law or the respective rights of the parties without making an order against the decision maker.

Injunctions

Injunctions prevent an illegal act or enforce the performance of a public duty. The outcomes they achieve are similar to the outcomes of mandatory and prohibiting orders. For example, a local authority might be ordered to provide temporary accommodation for someone pending its decision on a homelessness application.

Where an application is refused on the papers, there may be a right to apply for an oral reconsideration. In the case of a homeless applicant who applied for an injunction to compel the local authority to provide interim accommodation pending a review of the homelessness decision and the application was refused on the papers, the Court of Appeal held that unless both parties had consented to it being dealt with on the papers alone, the order should be endorsed with a statement of the right to apply under CPR rule 3.3(5), usually within seven days, to have the order set aside, varied or stayed. If the parties have consented to a paper determination, then the order will be final and can only be challenged by appeal to the Court of Appeal within 21 days.[11]

Damages

A judicial review claim cannot seek damages alone. One of the above orders must also be sought. However, it should be noted that damages are not likely to be available for breach of most homelessness duties.[12]