DESIREE CORT (R on the application of) v LONDON BOROUGH OF LAMBETH

Local authorities have broad discretionary powers under section 138 of the Local Government Act 1972 and section 2B of the National Health Service Act 2006 to accommodate rough sleepers during a public health emergency, including persons with no recourse to public funds. The Government’s “Everyone In” initiative was not a prescriptive policy, but was an important exhortation to which decision-makers had to have regard, particularly where funding accompanied it. A local authority exercising these powers must adopt, or identify, intelligible criteria informing the discretion. It must also consider relevant matters, including the initiative and the applicant’s circumstances, while not treating immigration status as an exclusionary factor, although it may consider whether the application circumvents the homelessness restrictions in section 185 of the Housing Act 1996.

The claimant, an unlawfully present 68-year-old woman with no recourse to public funds, sought judicial review of Lambeth’s refusal to provide emergency accommodation when she was at risk of sleeping rough during the Covid-19 pandemic. The council issued three relevant responses in June and July 2021. It relied on the claimant’s immigration status, resources, public-health measures and, in the final response, its Covid-19 Outbreak Management Plan.

The claim challenged the absence of a policy or criteria, alleged arbitrary decision-making, and failure to take relevant matters into account. The central issues were the scope and lawful exercise of the council’s discretionary powers under the Local Government Act 1972 and the National Health Service Act 2006, and the significance of the “Everyone In” initiative.

1. Statutory powers. The powers under section 138 of the Local Government Act 1972 and section 2B of the National Health Service Act 2006 were available to address rough sleeping during the pandemic. They were not confined to persons with lawful immigration status. The powers could not be used to circumvent the restrictions in section 185 of the Housing Act 1996.
2. Nature of the discretion. Whether to exercise those powers was a matter for the local authority’s evaluative judgment. Relevant considerations included the applicant’s personal needs, the authority’s resources, and other measures capable of reducing the public-health risk. The court should generally allow the authority considerable latitude where its reasoning process was properly explained.
3. Everyone In. The initiative was not a prescriptive policy giving rise to a duty to accommodate every rough sleeper. It was, however, an important national exhortation which should inform local decision-making, particularly where funding had accompanied it.
4. Policy and criteria. A local authority exercising a significant discretionary power should identify how the discretion will operate and the criteria by which applicants will be assessed. Lambeth had no identified policy or criteria in the first two decision letters. Those decisions were therefore ad hoc and arbitrary. The later reference to the Outbreak Management Plan did not cure the wider defect in the decision-making process.
5. Relevance. Lambeth was entitled to consider whether the application was an attempt to circumvent section 185, but the claimant’s NRPF status could not itself be weighed as a reason to exclude her from accommodation. The decision-making process also failed to explain how the “Everyone In” initiative applied, or why a person in the claimant’s position was excluded despite the national request to accommodate rough sleepers regardless of status.
6. Disposition. The decision was quashed. The matter was to be reconsidered by reference to the prevailing circumstances, the claimant’s particular needs, relevant public-health risks, the statutory powers and the national initiative.