Blog post by Connor Johnston of the Garden Court Chambers Housing Team.
Liz Davies, Adrian Berry and Connor Johnston of the Garden Court Chambers Housing Team, instructed by Freshfields Bruckhaus Deringer, acted for the Intervener Shelter.
The Claimant, TN, was a homeless failed asylum-seeker. He sought accommodation from the Defendant, Brighton and Hove City Council. This request was made in the context of the ‘Everyone In’ scheme: a central government initiative whereby local authorities had been tasked with bringing rough sleepers in off the streets during the Covid-19 pandemic to minimise the risks to themselves and others. This scheme had been communicated to local authorities by means of a series of Ministerial letters over the course of 2020 which had not been entirely consistent or clear as to whether persons who, by virtue of their immigration status had no recourse to public funds (NRPF), either because they were in the UK in breach of immigration laws or in the UK lawfully but with an NRPF condition attached to their leave, could or should be accommodated. A number of local authorities, including Brighton, had accommodated persons with NRPF at some point during the year. But the position adopted by local authorities had not been consistent.
Following TN’s request for accommodation, Brighton decided that he was not eligible for accommodation under Pt 7 Housing Act 1996 because of his immigration status and refused to accommodate him pursuant to the ‘Everyone In’ scheme. TN issued judicial review proceedings. Brighton resisted these arguing that ‘there is no statutory provision empowering it to accommodate C’ as ‘[h]is unlawful status disqualifies him from local authority support’ that any policy of accommodating homeless persons ‘irrespective of immigration eligibility’ would be unlawful.
By the time of the hearing of the claim for judicial review TN had been provided with accommodation by the Home Office under s4(2) Immigration and Asylum Act 1999.
Mr Justice Freedman allowed TN’s claim. Although the claim had become academic, in the sense that TN no longer required accommodation, the issue raised was one of public importance and was not fact sensitive.
Local authorities, the judge held, had emergency powers under s138 Local Government Act 1972 and public health powers under s2B National Health Service Act 2006, which could be used in such circumstances:
162. Subject to finalising the terms in an order, and any further submissions as to the precise terms of the declaration in order to reflect this judgment, the Court has in mind the following:
(1) It is declared as regards the provision of temporary accommodation pursuant to the "Everyone In" scheme or a successor initiative to street homeless persons in order to save lives alleviating the effect of the Covid-19 pandemic:
(a) the Defendant has powers under s.138 Local Government Act 1972 in the context of an emergency involving danger to life affecting the street homeless, to take action to provide accommodation or secure assistance for them to avert, alleviate or eradicate the effect of Covid-19;
(b) the duty under s.2B National Health Service Act 2006 is capable of permitting the provision of temporary accommodation by the Defendant as a step for improving the health of the people in the area; notwithstanding that some of the recipients may be persons who are ineligible for assistance under s.185 Housing Act 1996, provided that the foregoing is not used to circumvent the restrictions of s.185 Housing Act 1996 or schedule 3 to the Nationality and Immigration Act 2002.
The court rejected an argument that – in a case where an applicant was not necessarily facing a breach of the ECHR – the power under s1 Localism Act 2011 could be used to provide accommodation to a person who was ineligible for homelessness assistance under Pt 7 Housing Act 1996. In doing so the court adopted the analysis in R (AR) v Hammersmith & Fulham LBC  EWHC 3453 (Admin), (2019) CCLR 56 which was endorsed in R (Aburas) v Southwark LBC  EWHC 2754 (Admin), (2019) 22 CLR 537
In addition, in light of the availability of the powers under s138 and s2B and the fact that TN had been accommodated by the Home Office, the court declined to make any determination as to whether ss1-2 Localism Act 2011, read with s3 Human Rights Act 1998, might require local authorities to secure accommodation for homeless persons where necessary to avoid a breach of their ECHR or EU rights, as the issue did not arise directly on the facts of the case.
The Judgment is available here.
This is an interesting judgment involving an important issue. The limits of the decision and its ramifications both in the short term and beyond the currency of the pandemic remain to be worked out. Four specific points spring out:
- Could s138 or s2B could be used to provide accommodation once the pandemic is over? Section 138 is a power specifically directed at tackling emergencies. The circumstances in which this power is available may be limited. Tackling the aftermath of an event like the Grenfell fire, or dealing with areas affected by flood damage are the kind of situations that spring to mind. But the target duty under s2B is directed toward improving public health and it is not inconceivable that this could be deployed more routinely in relation to vulnerable individuals, albeit this is subject to a significant degree of discretion and judgment on the part of the local authority.
- What does it mean to say that these powers cannot be used to ‘circumvent the restrictions of s.185 Housing Act 1996 or schedule 3 to the Nationality and Immigration Act 2002’? I think this is likely to cause some debate. My view is that, since this caveat was deemed necessary to ensure that local authorities do not use their statutory powers for an improper purpose, the focus needs to be on what the local authority is setting out to achieve by using the power, and not what the applicant wants to achieve. Inevitably, most applicants seeking accommodation under these powers will not be eligible for mainstream support (hence why they need to rely on alternative powers) and will in that sense be seeking to circumvent s185. That was the factual matrix of TN’s case. But, as this case shows, that does not mean the alternative powers are not available. Providing the purpose of the local authority is to avert, alleviate or eradicate the effect of the emergency or improve public health, the use of the powers would seem to be legitimate.
- What of the Localism Act 2011? (Pt 1). The argument that s1 Localism Act 2011 could be used to provide accommodation to a person who is ineligible for assistance under s185 Housing Act 1996, in a non-ECHR case, now seems to be settled at High Court level. If this point is to be pursued, realistically, it will need to be at the Court of Appeal level.
- What of the Localism Act 2011? (Pt 2). But what about cases where the applicant is facing a breach of the ECHR if support is not provided? Many (but not all) applicants who are not eligible for support under s185 Housing Act 1996, who are facing a barrier to return to their country of origin, will be eligible for Home Office support under ss4(2) or 95(1) Immigration Act 1999 or para 9(2), Schedule 10, Immigration Act 2016. But in practice the delays in accessing s4(2) support in particular (where there is no mechanism for interim support, c.f s98(1) Immigration Act 1999) may be very significant and applicants may be on the streets during that time. And while the applicant may notionally be able to seek judicial review of the Home Office, this is not realistic for most unrepresented homeless persons. The argument for Shelter, the intervener, was that local authorities can and should step in to avoid an ECHR breach in such cases, at least as an interim measure while steps are taken (potentially with the assistance of the local authority) to secure Home Office support for the applicant. Although the Judge declined to formally reach a decision on this issue, he did address the issue in obiter remarks:
98. According to Shelter in its skeleton argument at paras. 44.2-44.3, failed asylum-seekers such as the Claimant in this case may face delays in obtaining that support: see statement of Polly Neate at paras 54-57. They do not have a remedy for interim accommodation and support from the Home Office, but they may obtain an interim relief in judicial review (albeit that the Claimant and the Intervener say that this may be neither realistic nor quick). Likewise, they may have an entitlement to for the removal of their NRPF condition (but here too the Claimant and Intervener say that an application for judicial review may be neither realistic nor quick: see Polly Neate at paras 50-53).
99. In my judgment, this does not provide a basis to say that the general terms of the Localism Act 2011 provide a power of the local authority to accommodate the Claimant in order to avoid a breach of the Convention. Such a power of the local authority is unnecessary where the power is conferred by statute on the Home Office. It is not just unnecessary, but the statutory scheme transferred the responsibility from the local authority to central government.
100. If there are delays and difficulties in implementing the powers of the Home Office, this then gives rise to remedies against the Home Office. Section 4 was recently considered in a judgment of Knowles J in R (DMA, AHK, BK and ELN) and R (AA) v Secretary of State for the Home Department  EWHC 3416 (Admin). That concerned systemic delays on the part of the Home Office in the provision of accommodation, and relief with a view to providing remedies. If and to the extent that the Home Office fails in this respect, it does not then require a local authority to do that which is entrusted to the Home Office in order to avoid a breach of the Convention. It is the Home Office which needs to act.
Whether the Judge’s views on this issue are correct is a point that would have to be pursued in a case where the issue matters. But the fact that an applicant who is in a position to bring judicial review proceedings at all is likely to have representation and be in a position to challenge the failings of the Home Office automatically means that the issue is not likely to arise in such a case. The concern is for vulnerable, homeless applicants who are being failed by the Home Office but who cannot access the courts by themselves to challenge that. For that reason, it is perhaps unfortunate that the judge did not fully grapple with this issue. The Judge’s logic that local authorities should not be burdened with addressing the failings of the Home Office is compelling. But it does not fully address the concern that, by not doing so, the result may be that vulnerable persons are left on the streets in circumstances that may amount to a breach of Article 3.