Bukartyk, R (on the application of) v Welwyn Hatfield Borough Council

The claimant sought judicial review of the defendant council's decision of 9 October 2019 refusing to treat a second homelessness approach as a new application under ss.183 and 184 of the Housing Act 1996 and refusing interim accommodation under s.188. The court applied the Court of Appeal's guidance in Rikha Begum v Tower Hamlets LBC on second applications and held that the council had misapplied the test: it failed to analyse whether the facts in the second approach were new (or if known previously, had been taken into account), and instead impermissibly assessed whether the new material proved priority need under s.189(1)(c).

The decision was irrational because the new medical evidence (psychiatric letters and a prescription) could not properly have been treated as trivial or fanciful without explanation; the decision-maker also 'cherry-picked' favourable passages and ignored material tending to the contrary. The claim was therefore allowed and the 9 October decision quashed. The court directed the council to treat the second approach as an effective application but did not order interim accommodation under s.188, leaving the council to conduct s.184 inquiries taking account of current circumstances (including the claimant's recent YMCA licence arrangement).

This is a first-instance judicial review claim brought by the claimant challenging the defendant local housing authority's refusal on 9 October 2019 to accept a second homelessness approach as a fresh application and to provide interim accommodation pending a statutory appeal. The claimant's earlier application in March 2019 resulted in temporary accommodation and, following inquiries, a decision in July 2019 and a review decision in September 2019 that she was not in priority need. The claimant thereafter supplied further medical evidence (letters from psychiatrists/mental health clinicians and a sertraline prescription) and a third party (Citizens Advice Bureau) submitted what amounted to a second application on 25 September 2019. The council refused to treat that approach as a fresh application on 9 October 2019, concluding there were no relevant new facts or that any new facts were trivial, and refused interim accommodation pending the s.204 county court appeal.

The issues before the administrative court were:

• Whether the council applied the correct legal test for a second homelessness application as set out in Rikha Begum v Tower Hamlets LBC, namely whether the subsequent approach revealed facts that were new or whether the facts were the same as those known and taken into account at the earlier decision (or trivial/fanciful); and
• Whether the 9 October decision was a rational decision on the material before the council, particulary the new medical evidence.

The court concluded that the council had not applied Rikha Begum correctly: the decision-maker did not analyse whether the new medical evidence disclosed facts that were new or had been previously taken into account, but instead proceeded to decide whether the new evidence established priority need (s.189) without first undertaking the s.184 inquiries that would follow an accepted application. The court found the conclusion that the medical evidence was trivial or would not change priority-need findings to be irrational and criticised selective reliance on favourable parts of the medical reports. The court rejected the defendant's alternative remedy argument because the pending s.204 county court appeal could only consider material that was before the authority at the time of the review decision and therefore could not determine the new evidence.

Relief granted: the court quashed the 9 October 2019 decision and directed the council to treat the second approach as an effective application and to carry out appropriate inquiries under Part VII of the Housing Act 1996. The court declined to order interim accommodation under s.188, leaving the council to assess that question in light of the claimant's current circumstances, including a recent YMCA licence which created some risk of homelessness within 56 days.

The claim is allowed. The court held that the defendant's 9 October 2019 decision was unlawful and irrational because it failed to apply the correct test from Rikha Begum for treating a subsequent homelessness approach as a new application: the decision-maker did not properly determine whether the facts in the later approach were new or had been known to and taken into account earlier, and instead impermissibly assessed priority-need at the preliminary stage and selectively relied on parts of the medical evidence. The 9 October decision was quashed and the council was directed to treat the second approach as an effective application; no order was made requiring the council to provide interim accommodation under s.188.

This is a first-instance Administrative Court judgment. Procedural history: the claimant issued judicial review proceedings on 22 October 2019 and applied for interim relief; permission was granted by Steyn J on 1 November 2019 (interim relief refused); an expedited hearing was ordered; a renewed application for interim relief was refused on 12 November 2019; the substantive hearing took place on 10 December 2019 before Mr Sam Grodzinski QC, who delivered the judgment on 16 December 2019.