May, R (on the application of) v Birmingham City Council

Under Part VII of the Housing Act 1996, a local housing authority must make statutory inquiries where a purported subsequent application is genuine and the authority has reason to believe that the applicant may be homeless or threatened with homelessness. No additional threshold requiring proof of a material change of circumstances may be implied. A subsequent application may be treated as no application only where it is based on exactly the same facts as the earlier application. The comparison is made with the facts existing when the earlier application was finally disposed of and those disclosed by the subsequent application. A person’s occupation of accommodation under an open-ended licence may be materially different from being told that the accommodation is no longer available and that there is nowhere to stay that night.

The claimant had previously applied as homeless after fleeing domestic violence. The defendant accepted a housing duty, later treated that duty as discharged after she refused an offer of accommodation, and upheld that decision on review.

The claimant then stayed with her grandmother under an open-ended arrangement. After the relationship broke down and her grandmother asked her to leave, the claimant made further homelessness applications. The defendant treated the later applications as based on exactly the same facts as the original application and refused to accept the further application as valid. The claimant sought judicial review of the defendant’s decision of 31 May 2011.

1. The claim was granted. The defendant’s decision letter of 31 May 2011 was quashed. No further remedial orders were made. The defendant was ordered to pay the claimant’s costs, subject to detailed assessment if not agreed.
2. Section 184 of the Housing Act 1996 imposes a mandatory duty to make the necessary inquiries where an applicant applies for accommodation and the authority has reason to believe that the applicant may be homeless or threatened with homelessness. Section 193(9) permits a person whose duty has ended to make a fresh application. There is no limit in principle to the number of such applications.
3. The principles in R (Harrow London Borough Council) ex parte Fahia [1998] 1 WLR 1396 and Rikha Begum v Tower Hamlets London Borough Council [2005] 1 WLR 2103 preclude an authority from imposing a separate material-change threshold or conducting substantive non-statutory inquiries before deciding whether a subsequent application is valid. The relevant preliminary comparison is between the facts at the disposal of the earlier application and the facts disclosed by the later application.
4. The defendant’s conclusion that the claimant’s circumstances were exactly the same was irrational. Although the grandmother’s accommodation could be described as temporary because it was not permanent, the claimant had an open-ended licence to remain while awaiting ordinary housing. The later breakdown in the relationship and instruction to leave created an important factual change. There was a material distinction between knowing that accommodation might end at some future point and being told that there would be nowhere to sleep that night.
5. The court applied the stringent irrationality standard described in Associated Provincial Picture Houses v Wednesbury Co-operation [1948] 1 KB 223. The decision was not quashed merely because the court preferred another view; no reasonable properly directed authority could have treated the two situations as exactly identical.

This was a first-instance judicial review claim. Permission was granted on 15 September 2011. A related County Court appeal was stayed pending the outcome of this claim.