Ozbek v Ispwich Borough Council

Under Part VII of the Housing Act 1996, referral guidelines are not statutory rules and must not be applied rigidly. Authorities should ordinarily apply them consistently, while remaining open to the individual facts and possible departure from the guidance. Family associations are not confined to parents, adult children and siblings, and there is no statutory five-year residence rule. The quality and enduring nature of the relationship are material. The statutory scheme allocates the housing burden between authorities; it is not a general welfare measure. A deemed local connection arising from accommodation under section 95 of the Immigration and Asylum Act 1999 may justify referral despite the absence of family support. On a section 204 appeal, substitution is justified only where the decision was unlawful and only one contrary decision was lawfully possible.

Mr Ozbek, a Turkish national granted indefinite leave to remain, had been accommodated with his family by the National Asylum Support Service in Southampton and later Portsmouth. After becoming eligible for assistance under Part VII of the Housing Act 1996, he applied to Ipswich Borough Council for homelessness assistance. Ipswich accepted that he was homeless, eligible, in priority need and not intentionally homeless, but decided that he lacked a local connection with Ipswich and had one with Portsmouth because of accommodation provided under section 95 of the Immigration and Asylum Act 1999.

The reviewing officer upheld the referral decision. On an appeal under section 204, Ipswich County Court allowed Mr Ozbek’s appeal and declared that he had a local connection with Ipswich through family associations. The central issues were whether the authority had applied the referral guidance too rigidly and whether its residual discretion not to refer had been unlawfully exercised.

1. Appeal allowed. The Court of Appeal set aside the County Court’s order and restored Ipswich Borough Council’s decision to refer the application to Portsmouth.
2. On an appeal under section 204 of the Housing Act 1996, the court determines points of law. It may intervene where the reviewer applied the wrong legal test or reached a decision that was plainly wrong. It may substitute its own decision only where the original decision was unlawful and only one contrary decision was lawfully possible, as illustrated by London Borough of Tower Hamlets v Deugi [2006] EWCA Civ 159.
3. The Referral Guidelines were intended to provide a common basis for speedy agreement between housing authorities. Following them generally is legitimate and necessary for the scheme to work. The guidance that family associations normally involve close relatives resident for five years is a norm or rule of thumb, not an inflexible statutory condition. The authority must nevertheless consider the particular facts and keep its mind open to departure, applying the approach in Eastleigh Borough Council v Betts [1983] 2 AC 613.
4. Family associations under section 199(1)(c) are not legally limited to parents, adult children and siblings. The relevant inquiry is whether the nature, strength and duration of the relationship justify treating the relatives as near relatives for the purpose of the guidance. A mere relative living in the district is insufficient. The reviewer had considered the extended family, including the cultural and practical support relied upon, and was entitled to reject the claimed connection. Part VII concerns housing duties, not a general welfare function; welfare considerations were of limited relevance to the family-association inquiry.
5. Section 199(6), introduced by section 11(1) of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, was intended to reverse the effect of Al-Ameri v Kensington and Chelsea Royal London Borough Council and Osmani v Harrow London Borough Council [2004] UKHL 4. Parliament had accepted that former asylum seekers might have no choice or family support in the district where they had been accommodated. That circumstance did not require Ipswich to exercise its residual discretion against referral.
6. A notifying authority retains a residual discretion not to refer even where the statutory conditions are met. Portsmouth’s view that it had previously discharged its duty, and the absence of family or friends there, did not make Ipswich’s decision to refer unlawful. Any challenge to Portsmouth’s position had to be pursued under the statutory review and appeal procedures.

• Court of Appeal (Civil Division) — [2006] EWCA Civ 534: allowed Ipswich Borough Council’s appeal, set aside the County Court order and restored the referral decision.
• Ipswich County Court — On an appeal under section 204 of the Housing Act 1996, allowed Mr Ozbek’s appeal and declared that he had a local connection with Ipswich through family associations.