Ncube, R (On the Application Of) v Brighton And Hove City Council

Interim relief in a public-law claim requires a real issue to be tried, assessed with appropriate modification for the public-law context, and consideration of the public interest. The court must then determine the balance of convenience, again including the public interest.

A published accommodation policy for rough sleepers did not create an unqualified promise where later government guidance clarified that immigration restrictions continued to apply. A statutory duty to provide advice and information did not itself require accommodation. A person subject to immigration control could not obtain care and support solely because destitution created physical needs, unless the needs went beyond the provision of a home. Interim relief was also refused for breach of the duty of candour.

The claimant, a street-homeless former asylum seeker, sought interim accommodation from the local authority during the COVID-19 pandemic. He relied principally on the Government’s Everybody-In Policy and alleged duties under the Housing Act 1996, the Care Act 2014 and the Localism Act 2011.

The authority relied on immigration restrictions and the statutory support scheme under the Immigration and Asylum Act 1999. The claimant’s case had stated that a section 4 application had been made and refused, but it was subsequently accepted that the application had only been made shortly before the hearing. The issues were whether interim relief was arguable on the policy or statutory grounds, whether the section 4 scheme was an alternative remedy, and whether the duty of candour had been complied with.

1. Interim relief test. The claimant had to show a real issue to be tried, with appropriate modification for the public-law context. This required a real prospect of obtaining a permanent injunction at trial, subject to the public interest. The court also had to determine the balance of convenience, including the public interest.
2. Everybody-In Policy. The initial ministerial letter appeared, on its face, to include persons with no recourse to public funds. Later letters clarified that immigration-status restrictions remained in force and that failed asylum seekers were excluded from the general policy unless support could lawfully be provided on an individual basis. The policy therefore could not be treated as an unqualified promise giving rise to the claimed legitimate expectation.
3. Statutory grounds. Section 179 of the Housing Act 1996 required the authority to provide advice and information; it did not itself require accommodation. Under section 19(3) of the Care Act 2014, a local authority was not required to meet the care and support needs of an adult subject to immigration control merely because the adult was destitute or suffered the physical effects, or anticipated physical effects, of destitution. The claimant would need to show needs going beyond the provision of a home. The general prohibition in Schedule 3 to the Nationality, Immigration and Asylum Act 2002 applied, in addition to the specific exclusion associated with section 1 of the Localism Act 2011.
4. Alternative remedy and candour. The section 4 scheme under the Immigration and Asylum Act 1999 was directly relevant because it provided a statutory route to accommodation in defined circumstances. The duty of candour required proper enquiries and disclosure of all relevant facts. The failure to disclose that no section 4 application had been made until shortly before the hearing meant that the duty had not been discharged.
5. The application for interim relief was refused on the merits and, in any event, for breach of the duty of candour.

On 6 October 2020, Lavender J ordered the defendant to accommodate the claimant in suitable accommodation until 3 p.m. on 8 October 2020. The present court then refused interim relief on the merits and independently for breach of the duty of candour.