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Reported Case

R (on the application of Vincent Nolson) v Stevenage Borough Council (2020) EWCA Civ 379 (15 April 2020)

Date: 15/04/2020
Duncan Lewis, Reported Case Solicitors, R (on the application of Vincent Nolson) v Stevenage Borough Council (2020) EWCA Civ 379

What are the next steps after an application for interim relief is refused in the Administrative Court?

The Appellant client made a homelessness application to the Respondent Council in February 2019. He was placed in temporary accommodation in a nursing home under s188 (1) Housing Act 1996 (“the Act”). However, on 8 May 2019, the Council concluded that the Appellant, although eligible for assistance, homeless and in priority need, was intentionally homeless and so not entitled to permanent housing. This was on the basis that he had become homeless due to a marital breakdown in which he was accused of domestic violence.

The Appellant requested a review of that decision under s202 of the Act and the Respondent provided temporary accommodation pending the review under s188 (3). The Respondent failed to carry out the review within the statutory deadline so the Appellant exercised his right of appeal to the County Court against the initial decision under s204 (1) (a) of the Act on 7 August 2019.

In or around September 2019 the Respondent ended their duty to provide temporary accommodation under s188 (3) on the basis that the Appellant had not been occupying the accommodation provided, which it was said amounted to a refusal of the accommodation provided entitling them to end their duty.

On 17 September 2019 that decision was challenged by way of judicial review and interim relief was sought to secure accommodation for the Appellant pending the outcome. The basis of the challenge was inter alia that the Appellant had been occupying but that in any event the accommodation had not been suitable as required by s206 of the Act. Accordingly the Respondent, having never properly performed its accommodation duty, was not entitled to discharge it. The application for interim relief was refused by Butcher J.

On 24 September 2019, an application was made to the Administrative Court for an oral reconsideration of the decision to refuse interim relief. That application was heard on 3 October 2019 by Anthony Metzer QC sitting as a Deputy High Court Judge who concluded that the court did not have jurisdiction to consider a renewal of the application for interim relief and that instead a refusal of interim relief on the papers must be directly appealed to the Court of Appeal.

This decision to refuse jurisdiction was appealed to the Court of Appeal on the basis that the Court had failed to follow the clear guidance set out in the case of R (MD)(Afghanistan) v Secretary of State [2012] EWCA Civ 194. Interim relief was sought once again.

On 24 October 2019, Hickinbottom LJ refused permission to appeal and thus interim relief. He held inter alia that:

“The applicant had no right to an oral hearing to reconsider that decision; and the deputy judge was undoubtedly right to proceed on the basis that, if the applicant was dissatisfied with Butcher J’s order that, the appropriate course would be to seek permission to appeal. R (MD)(Afghanistan) v Secretary of State [2012] EWCA Civ 194 on which he relies does not help him: in that case permission to proceed with the judicial review had been refused.”

On 30 October 2019 an application was made under CPR52.30 to re-open the appeal. Such applications can only succeed if there is the potential for real injustice, the circumstances are exceptional and there is no effective alternate remedy. The application was supported by witness evidence from the housing and immigration departments demonstrating an inconsistent approach by the Court which had the effect of interim relief being wrongly refused or delayed.

The Appellant's s204 homelessness appeal was heard in the County Court at Oxford on 6 November 2019. The appeal was allowed, and the decision that the Appellant was intentionally homeless was quashed. Following this the Respondent agreed to re-accommodate the Appellant under s188 (1) of the Act. This meant that the judicial review and the application for interim relief had become academic.

On 4 December 2019 Hickinbottom LJ adjourned the application to re-open the appeal into open Court on the basis that:

“From paragraph 4 of the applicant’s skeleton there appears to be some doubt as to the scope of R (MD)(Afghanistan) v Secretary of State [2012] EWCA Civ 194, in respect of which the applicant says he wishes to file and rely on a further skeleton argument. The appeal concerns interim relief.”

The application was heard on 12 March 2020 by Hickinbottom LJ. He determined inter alia that:

“…the Applicant in this case clearly did have a right to make an application to set aside, vary or stay the order made on the papers by Butcher J refusing his application for interim relief.”

Hickinbottom LJ identified the relevant provisions of the CPR and gave some general guidance:

“18. Whilst none of this jurisprudence is new, as there is evidence before me of other cases in which this issue has caused problems and different results reached, it seems to me that the following may be helpful for future applications, including applications for interim relief.

i) In any application to the court, even where the relevant court form does not ask the specific question, the applicant should generally indicate whether he wishes to be heard orally or whether he is content for the application to be dealt with on the papers alone. Whilst in itself that will not prevent a later application under CPR rule 3.3(5) (even by the applicant himself), it will give the other parties an opportunity to consent to the application being dealt with on the papers alone, which will prevent such a further application.

ii) Where the court refuses an application on the papers, unless both parties have consented to it being dealt with on the papers alone, the order should be endorsed with a statement of the right to make (within 7 days or such other time as the court considers appropriate) an
application to have the order set aside, varied or stayed under CPR rule 3.3(5). If the parties have consented to a paper determination, then the order will be final and should be endorsed with a statement of the right to appeal to this court within 21 days.

iii) Any application for an adverse decision made on the papers to be “reconsidered” at an oral hearing should clearly state that it is made under CPR rule 3.3(5) (or, if made under another specific provision of the rules, that it is so made).


The application was dismissed on the basis that it was academic, however the judge indicated that the case for re-opening the appeal would otherwise have been strong.

It was particularly important that this procedural issue was resolved, as delays in interim relief applications being considered can have grave consequences. The requirement to appeal to the Court of Appeal also significantly prejudiced applicants who would face a much higher threshold to succeed in their application.

Representation

The appellant was represented by Adrian Smith and Gareth Hutton of the Luton Housing department. They were assisted by a witness statement from Ruth Karimatsenga of the Luton Immigration department. Counsel was Nick Bano from Garden Court Chambers and Hugh Southey QC from Matrix Chambers.

 

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