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Reported Case

The Queen (on the application of Edyta Bukartyk) v Welwyn Hatfield Borough Council – Homelessness Judicial Review (17 December 2019)

Date: 17/12/2019
Duncan Lewis, Reported Case Solicitors, The Queen (on the application of Edyta Bukartyk) v Welwyn Hatfield Borough Council – Homelessness Judicial Review

We represented the Claimant in a judicial review against Welwyn Hatfield Borough Council (“WHBC”). This was against WHBC’s decision to not accept a second application for homelessness assistance from the Claimant.


Background

The Claimant made her first application for homelessness assistance under section 183 of the Housing Act 1996 (“the Act”) in March 2019 but did not provide any medical evidence to support her claims that she was in priority need. During this time, WHBC gave her interim accommodation, but had to move her from one property to a different location due to an episode of behaviour which they deemed to be ‘inappropriate’. That episode led them to have concerns for her mental health and make a referral to their mental health team, but they took her at her word when she said that she did not suffer from mental health issues.

WHBC decided that she was not in priority need on the basis that no medical evidence was provided and upheld that decision upon review. WHBC then served her with notice to vacate the temporary accommodation after upholding the negative decision upon review and, consequently, she was made street homeless in September 2019.

As a result of the negative review decision we lodged an appeal at the County Court at Luton under section 204 of the Act. This appeal is still active.

Then, in mid-September 2019, the Claimant made a second application for homelessness assistance. On this occasion she provided a prescription for Sertraline and three letters from medical professionals giving evidence of her mental health, namely that she was suicidal, depressed and showed symptoms of Emotionally Unstable Personality Disorder – all of which post-dated the review decision on the first application.


Local Authority obligations

Upon receipt of any application for homelessness assistance, a Local Authority must make enquiries into whether an applicant is homeless and eligible. If the applicant is homeless and eligible then the Local Authority must accept the application and make enquiries as to what duties are owed to the applicant under the Act.

The test for second applications is a more stringent one. It was handed down by Lord Neuberger in the Court of Appeal in Rikha Begum v Tower Hamlets LBC [2005] 1 WLR 2103 (taking into account the then leading House of Lords judgement in R v Harrow London Borough Council, Ex parte Fahia [1998] 1 WLR 1396). Therein, the Local Authority must determine if the new application for homelessness assistance was made based on facts which were different than from those known to the Local Authority at the time of the previous application and then, if there are new facts, if those new facts are trivial or fanciful in nature such as to justify a refusal to accept the second application. Lord Neuberger went further to say that the Local Authority should not stray into make any ‘non-statutory enquiries’ at this stage, but should simply limit themselves to considering those two questions.

It therefore follows that if there are new facts which are not trivial or fanciful then the Local Authority must accept the new application and make enquiries into the applicant’s circumstances.


Outcome

In our case, WHBC refused to accept the second application because, the Review Officer said, there were no new facts which were not known about at the time of the previous decision; if there were new facts, that they were trivial; and, in any event, it did not change their previous decision that she was not in priority need.

On 10 December 2019, DHCJ Grodzinski QC allowed the claim for judicial review. He ordered that WHBC’s decision to refuse the second application be quashed and that it be considered by them as an effective application. The reasoning for the decision was that the new medical evidence was clear evidence of new facts and was not trivial in nature because it highlighted potentially severe mental health issues. He also stated that the refusal to accept the second application by the Review Officer for WHBC was unlawful because he had made non-statutory enquiries – namely considering whether the Claimant was in priority need when he simply needed to consider the new facts and trivial facts test outlined in Rikha Begum.


Representation

The Claimant is represented by caseworker, Gareth Hutton, of the Luton housing department and counsel, Matthew Feldman of 42 Bedford Row.


 

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