Hoyte, R (on the application of) v London Borough of Southwark

For a repeat homelessness application, the relevant comparison is with the facts actually accepted by the housing authority when the earlier application was determined, not every fact previously alleged. Fresh evidence may reveal new facts where the authority previously rejected the factual proposition it supports. An authority must not conduct non-statutory inquiries into the accuracy of alleged new facts before deciding whether the application is valid. A new application must be processed where the alleged developments are neither trivial nor fanciful and mean that it cannot reasonably be regarded as based on exactly the same facts. Judicial review remains available where rejection of the application is irrational or unreasonable.

The claimant, who was homeless and had mental health difficulties, had twice been assessed by the defendant local authority as not being in priority need. She made a third application after an episode involving an alleged suicide plan and fresh assessments by her general practitioner and a mental health nurse indicating active suicidal thoughts, plan and intent.

The authority refused to accept the application, concluding that there had been no material change in circumstances and that the relevant facts were unchanged. The claim for judicial review concerned whether the authority was entitled to reject the application without commencing the statutory inquiry process under Part VII of the Housing Act 1996.

1. Claim granted. The refusal to accept the third homelessness application was irrational or unreasonable in the Wednesbury sense. The authority was required to make the statutory inquiries and notify the claimant of its decision and reasons.
2. Under R v Harrow LBC ex p Fahia [1998] 1 W.L.R. 1396 and Rikha Begum v Tower Hamlets London Borough Council [2005] 1 W.L.R. 2103, a subsequent application may be rejected as no application only where it is based on exactly the same facts as the earlier application. The comparison is with the facts as they were actually known and accepted when the earlier application was determined or reviewed.
3. Evidence previously placed before the authority does not establish that the underlying fact was accepted. An authority which rejected evidence of a fact cannot later treat that fact as having been known all along merely because fresh evidence supports it. The authority could not therefore compare the third application with suicidal risk alleged in the earlier materials when its review decision had not accepted that there was a significant suicide risk.
4. The events relied on in the third application, together with the new clinical evidence, were significant and relevant. They were capable of being realistically asserted and were neither trivial nor fanciful. The authority had also failed to address the change in the general practitioner’s evidence, despite having previously relied heavily on its interpretation of the records.
5. The court did not determine vulnerability or priority need. Those matters remained for the authority under the statutory scheme, which permitted it to assess the reliability and weight of the evidence.

First-instance judicial review decision. The judgment records that permission to proceed was granted by Sir Stephen Silber, sitting as a High Court judge, on 14 May 2016.