Court of Appeal hands down ruling on second homelessness applications and 'new facts'

The Court of Appeal has allowed a claimant’s appeal over the dismissal of his claim for judicial review of a decision by a city council which refused to accept his second homelessness application on the basis that it revealed no "new facts".

In Minott v Cambridge City Council [2022] EWCA Civ 159 Lady Justice Macur said: “Regardless of the range of submissions made in this appeal, there is a single issue namely: did CCC [Cambridge City Council] evaluate the merits of Mr Minott's second application so as to determine whether there was a new fact upon which the 'fresh application' was based, and which would trigger CCC's statutory duties pursuant to Part 7 of Housing Act 1996?

“That is, did CCC elide a two-stage process; identification of whether there was a 'new fact' and then evaluation of its merit.”

The background to the case was as follows:

• The claimant/appellant, Mr Minott, had applied to Cambridge as homeless on 26 March 2019. On that day Cambridge provided him with temporary accommodation under a weekly licence. It did so in pursuance of its duty under section 188 of the Housing Act 1996, which applies where a housing authority has reason to believe that a person is homeless, eligible for assistance and has a priority need.
• Having made inquiries, Cambridge decided that Mr Minott had no local connection with Cambridge, but did have a local connection with Sandwell Council. Accordingly, Cambridge referred his application to Sandwell under section 198 (A1) of the Act. On 9 August 2019 Sandwell accepted the referral.
• Mr Minott asked for a review of that decision and also asked for temporary accommodation pending that review. Cambridge refused to provide that accommodation and terminated Mr Minott's licence with effect from 2 September 2019. Mr Minott refused to vacate the property, but has remained living there. Cambridge made its review decision on 25 September 2019, and upheld the decision to refer Mr Minott's application to Sandwell.
• On 26 September 2019 six months elapsed since Mr Minott's initial application to Cambridge. Although Mr Minott did not appeal against the review decision, he made what purported to be a fresh application on 17 October 2019. Cambridge refused to entertain that application on the ground that the application did not provide any new information. The reason for that was that Mr Minott did not have a local connection to Cambridge.

In February 2021 HHJ Lickley QC found that the simple passing of time and the unlawful occupation of accommodation could not amount to new fact for the purposes of a new homelessness application. Mr Minott appeale.

Lady Justice Macur said that in her judgment, HHJ Lickley QC fell into error in endorsing the city council's rejection of Mr Minott's application.

She said: “That the judge identified the issue as ‘whether the Claimant acquired a local connection for the purpose of establishing that he was 'normally resident'" demonstrated that he placed the cart before the horse; that he viewed the viability of the asserted new fact based on his assessment of the merit.”

Lady Justice Macur said Mr Minott’s application did reveal a 'new fact'. “The application should have been accepted and then determined accordingly,” she said.

Macur LJ added the judge transgressed the line “by his decision that Mr Minott's application was fanciful by reference to his manipulation of the system rather that that asserted new fact was itself fanciful”.

In a concurring judgment given “in view of the importance of the question, and its potential consequences for hard-pressed and cash-strapped local authorities”, Lord Justice Lewison said that when the housing authority receives what purports to be a subsequent application, their inquiry should fall into two quite separate stages:

i) Stage 1: it is an application at all? The answer will only be no if it is based on precisely the same facts as an earlier application (disregarding fanciful allegations and trivial facts);

ii) Stage 2: if it is an application, is it well-founded? That will require the housing authority to carry out the inquiries required by section 184. If an application passes stage 1, there is no available short cut.

Lord Justice Lewision said: “In my judgment, given that Cambridge had rejected Mr Minott's claim to have had a local connection on the sole ground that he had not accrued six months' residence in Cambridge (with the result that the gateway was shut), an allegation that he had now accrued six months' residence was a new fact (with the consequence that, if the asserted fact is true, the gateway to a local connection with Cambridge was now open).

“In my judgment that was a new fact which was neither a fanciful allegation nor trivial. It was not a fanciful allegation because it built on Cambridge's own finding of fact in the original review decision. It was not trivial because the alleged consequence of the lapse of time was that, having failed to satisfy the working definition of "normal residence", Mr Minott now satisfied it.”

Lord Justice Lewison said that in that sense it was not merely a lapse of time as HHJ Lickley QC thought: it was a lapse of time which may have legal consequences. “I do not consider that that conclusion is invalidated merely because the working definition is not itself a statutory test. The quality of Mr Minott's residence may or may not be relevant to stage 2; but I do not consider that it is relevant to stage 1.”

The Court of Appeal judge added: “What went wrong in the present case was that on receipt of the fresh application, Cambridge went straight to the question whether Mr Minott had a local connection. But that is a stage 2 question rather than a stage 1 question. Having reached its conclusion on the stage 2 question, Cambridge then reasoned backwards to arrive at the answer to the stage 1 question. That was the wrong approach.”

He said HHJ Lickley QC made the same error, right at the outset of his judgment, when he described the issue as whether Mr Minott had established a local connection. “But that was a stage 2 question.”

Lord Justice Lewison said: “Whether Mr Minott can establish a local connection with Cambridge does not arise at this stage; and in any event is not for us to say.”

Lord Justice Underhill also agreed that the appeal should be allowed. “Stripping it to its essentials”, he said:

“(1) Cambridge was only entitled to reject Mr Minott's application if it was identical to his previous application in the sense established by the decision of the House of Lords in Fahia and further explained by Neuberger LJ in Rikha Begum.

(2) That condition was not satisfied in the present case because the new application relied on what was plainly a "new fact" which was neither fanciful nor trivial, namely that by the date that it was made Mr Minott had been resident in Cambridge for the six-month period referred to at para. 10.7 of the Code [the Homelessness Code of Guidance].

(3) It was not open to Cambridge to rely on the argument that in the particular circumstances of his case (including the unlawfulness of his continued occupation of his interim accommodation) Mr Minott's six-months' residence did not establish that he had a local connection. That is an argument that the change was not "material", which is precisely what was held in Fahia to be inadmissible. The argument could only be run at the next stage."

Underhill LJ said it followed “from the foregoing that we need not express any view on the issue of whether Mr Minott was in fact normally resident in Cambridge at the date of the application or whether, if so, that established a local connection; and, like Lewison LJ, I prefer not to do so.”

See also: The death knell for local connection referrals? Elizabeth England analyses the potential impact of Court of Appeal's ruling.