Lawer, R (on the application of) v Restormel Borough Council

A local authority deciding whether to provide accommodation pending a homelessness review must consider whether to exercise its statutory discretion. The decision requires a balancing exercise addressing the merits of the applicant’s case that the original decision was flawed, any new material capable of affecting the review, and the applicant’s personal circumstances and the consequences of refusal.

Judicial review remains exceptional where those matters have been considered. An interim mandatory injunction requires a strong prima facie case, and the balance of injustice and public interest must also favour relief. Without-notice applicants must give full and frank disclosure, identify the material evidence and explain its significance, especially on a telephone application.

The claimant challenged Restormel Borough Council’s refusal to continue providing temporary accommodation pending its review under Housing Act 1996, section 202, of a decision that she was intentionally homeless under section 191. The Council accepted that she was homeless and in priority need but considered that she had surrendered her secure tenancy voluntarily.

The claimant alleged that the Council had failed to apply the balancing exercise required when deciding whether to exercise its power under section 188(3). She obtained an urgent without-notice mandatory injunction requiring accommodation pending review. The Council applied to discharge it, alleging that the claim lacked merit and that material information had not been disclosed to the judge who granted the order.

1. Application and claim dismissed. The injunction requiring Restormel Borough Council to provide accommodation was discharged. The claimant’s application for permission to bring judicial review proceedings was dismissed.
2. Section 188(3) imposed no continuing duty to provide accommodation after notification of the section 184 decision, even where a section 202 review was requested. The Council nevertheless had to consider whether to exercise its discretion when asked to provide accommodation pending review.
3. The required balancing exercise included: the merits of the applicant’s case that the original decision was flawed; any new material, information or argument capable of affecting the review; and the applicant’s personal circumstances and the consequences of an adverse decision. This approach was drawn from R v Camden London Borough Council ex p Mohammed (1998) 30 HLR 315 and endorsed in R v Brighton & Hove Council ex p Nacion (1999) 31 HLR 1095.
4. The contemporaneous records showed that the Council had considered the merits, including the evidence obtained from Dover District Council. No new material had been supplied by the claimant or her representatives. The Council was aware of her personal circumstances and the hardship that refusal might cause. The claimant therefore had no reasonable prospect of establishing that the discretion had not been considered lawfully.
5. Judicial review of a refusal to provide accommodation pending review is appropriate only exceptionally. Where the relevant factors have been considered, it is generally futile to invite the Administrative Court to interfere with the broad discretion. An interim mandatory injunction also requires a strong prima facie case. Here the claim was devoid of arguable merit, and both the balance of injustice and the public interest opposed relief.
6. A without-notice injunction is exceptional. The applicant must make full and frank disclosure of all material facts and law, make proper inquiries, identify the relevant documents and passages, and ensure that the judge understands their significance. The obligations are heightened where the application is made by telephone and the judge has no papers. Material non-disclosure does not automatically bar renewed relief, because the court retains a discretion, but it justified discharge here.