Sian Ivory v Welwyn Hatfield Borough Council

The court examined the law governing successive homelessness applications under Part VII of the Housing Act 1996, in particular sections 183 and 184, and the approach in R v Harrow ex p Fahia, Rikha Begum and Minott to determine when a later application may be rejected as not being a fresh application. The key principles were that (i) a local housing authority must accept and investigate a subsequent application unless it is based on exactly the same facts as a previous application (discounting trivial or fanciful matters), and (ii) whether a later application reveals a "new fact" is assessed by comparison of the later application with what was known to and taken into account by the authority when the earlier application was finally determined.

The court held that the consultant psychiatrist's report commissioned in 2023 amounted to significant new evidence capable of constituting new facts (ie that Ms Ivory lacked capacity to keep the tenancy in 2015-2016). The review officer was not entitled to treat the absence of answers to post-report queries as material to the threshold question whether the new application disclosed new facts. For those reasons the Council's refusal to accept the 4 September 2023 application was unlawful and was quashed; the Council must carry out the inquiries required by section 184 and the matter should be considered by a different officer.

Background and procedural posture. The claimant, Ms Sian Ivory, had been evicted in 2016 for rent arrears from her secure tenancy. She subsequently made homelessness applications to Welwyn Hatfield Borough Council. The Council concluded she was intentionally homeless and not owed the main housing duty under section 193(2) of the Housing Act 1996. That finding was upheld on review by the Council's review officer and then by the County Court on an appeal. On 4 September 2023 a fresh application was made, supported by a consultant psychiatrist's report (Dr Ewa Okon-Rocha, April 2023) which opined that on the balance of probabilities Ms Ivory lacked capacity to keep her tenancy in late 2015 and 2016 due to severe mental disorder. The Council declined to accept the fresh application as being based on the same facts as the earlier one. Ms Ivory sought judicial review; initial permission was refused on paper and at renewal in the High Court, but permission was later given to apply in the Court of Appeal and the claim was retained there.

Nature of the claim / relief sought. Judicial review of the Council's decision of 25 September 2023 refusing to treat the 4 September 2023 submission as a fresh homelessness application; relief sought was quashing of that decision and an order that the Council carry out the inquiries under section 184.

Issues for decision. The court identified three issues: (i) whether the 4 September 2023 application was based on the same facts as the earlier application or whether the psychiatrist's report constituted or included a new fact ("The New Fact Issue"); (ii) whether the review officer was entitled to make the inquiries he did of the report author and to rely on the absence of replies in deciding the threshold question ("The Inquiries Issue"); and (iii) whether relief should be refused on grounds of abusive or improper conduct by the claimant in obtaining but not earlier disclosing the report ("The Abuse Issue").

Court's reasoning and disposition. The court reviewed the statutory duty under sections 183 and 184 and the case law (Fahia, Rikha Begum, Minott and authorities at first instance). It held that the primary comparison for the threshold question is between the facts alleged in the later application and the circumstances as known to and taken into account by the authority when the earlier application was finally disposed of. The court found the psychiatrist's report was not merely repackaging of evidence: it provided significant new expert evidence based on a lengthy interview and review of records and, given the earlier review decision had rejected the mental breakdown allegation, the report contained facts that were new in the relevant sense. The review officer was not entitled at Stage 1 to investigate the accuracy of the new facts by querying the report author, nor to treat non-responses as decisive. On the abuse point, the court accepted there might be rare cases where abusive conduct justified refusing relief but rejected that argument here: it was reasonable for the claimant's representatives to regard the report as irrelevant to the earlier appeal because it post‑dated the review decision and new evidence is generally not admitted in such appeals. The Council's decision was quashed; the Council must now make the inquiries required by section 184 and a different officer should determine the application.

The claim for judicial review is allowed. The Council's decision to reject the 4 September 2023 application is quashed because the application contained significant new evidence (an expert psychiatric report) amounting to new facts when compared with the circumstances as known and taken into account at the time of the earlier decision; the review officer was not entitled to treat the absence of responses to his enquiries as material to the threshold question; and there was no proper basis to refuse relief for abusive conduct. The Council must carry out the s.184 inquiries and a different officer should decide the application.

Initial applications for permission to apply for judicial review were refused on the papers by Deputy High Court Judge Dan Kolinsky KC on 6 October 2023 and on renewal by Deputy High Court Judge Anneli Howard KC on 21 November 2023. Permission to apply was later granted by Newey LJ on 25 April 2024 and the claim was retained in the Court of Appeal, resulting in this judgment [2025] EWCA Civ 21.