Case No. EWHC-185-(Admin)

on the parties’ agreed list of issues160.Taking each of the parties’ list of agreed list issues in turn.161.When did the duty under s188(1) arise? In my judgment the duty arose around the 26th of August 2022 after the Claimant returned the forms requested by the Defendants. Before then the Defendants were reasonably awaiting clarification of the medical issues raised by the application in the light of the historic decisions taken that the Claimant needed one bed accommodation and day care, not two bed or 24 hour care and was improving in mobility. The Defendants have accepted the engagement of the duty. That is not in issue. The correct date of acceptance was not agreed. In my judgment the Defendants were thereafter in breach of their duty to offer suitable interim accommodation for a month (until 26.9.2022) and then properly accepted that the Claimant’s application engaged the duty under S.188(1) and offered temporary interim accommodation but the Claimant refused to move. That discharged or suspended the S.188(1) duty.162.Did the Defendants carry out non-statutory enquiries as those should properly be understood? In my judgment the Defendants did not carry out unjustified, unfair or unreasonable inquiries which would properly be classified as inappropriate and/or non statutory. They were seeking clarification of the issues which were longstanding in the light of their historic decisions and the new homelessness application and the Claimant’s assertions of medical, accommodation and care needs therein. In my judgment these were necessary for the Defendants to be able to clarify the issues which arose from the clash between the application and the Defendants’ own recent decisions. These were necessary to enable the Defendants to determine whether the Defendants had reason to believe the Claimant may have become homeless at home and may have had a priority need for 2 bedroom accommodation instead of 1 bedroom, whether he needed widened doorways because he could not weight-bear and could not use stairs and so may have needed to be accommodated elsewhere and whether there was a fire risk. 163.Was the Authority under a duty to notify the applicant that the duty under S.188(1) had arisen and was being performed by advising the Claimant to remain in his current accommodation? I consider that procedural fairness required the Defendants to inform the Claimant as soon as reasonably practicable after they had made the decision to accept the applicability of the S.188(1) duty. This the Defendants did on 26.9.2022 but in my judgment should have done on 26.8.2022 and so the Defendants did not properly discharge that duty. However this question does not arise from any pleaded ground of judicial review.164.Is it lawful in principle for an authority to discharge the S.188(1) duty by advising an applicant to remain in their current accommodation? In my judgment, if the evidence so permits, it is lawful for an authority to discharge their duty by advising the applicant that they consider that the current accommodation is suitable short term pending resolution of the inquiry on the main duty and other duties under the 1996 Act. I do so because I consider that the wording of S.206(1)(c) is sufficiently wide to encompass that interpretation as a method of discharging the duties under Part 7 and because of the rulings set out above in the case law: Ali; Edwards and Elkundi. 165.If so, was it lawful for the Authority to discharge the s188(1) duty by advising the Claimant to remain in his current property? In the light of the Defendants’ pre-existing decisions in relation to the Claimant’s housing needs and care needs, to the effect that he did not need two bedroomed accommodation or 24 hour care, could walk and would improve with physiotherapy, I consider that the decision which the Defendants took was within the scope of their reasonable discretion, save as to the fire risk. That part of the decision was both irrational and Wednesbury unreasonable in my judgment because the decisions on file did not support the Claimant being able to rush down 7 flights of stairs in case of fire. However such unlawfulness was irrelevant after 26 September 2022 because the Claimant refused to move when offered suitable alternative interim accommodation by Mr/Ms Anene.166.If so, was the decision that the current property was suitable in the short term irrational? I consider that it was irrational due to the fire risk.167.If not, is the decision now irrational because the short term has elapsed? I do not consider that the decision has become irrational as a result of the delay of 4-5 months because the issue at the root of the main determination is the medical evidence relating to the diagnoses and prognoses and the sequelae therefrom for each of the Claimant’s asserted disabilities. The Claimant has blocked the Defendants from investigating these by refusing to provide the medical notes and the names and addresses of his GP and his consultants. 168.I consider that if the Claimant had asked for the Defendants to rehouse him in suitable alternative interim one bed ground floor accommodation which is wheelchair accessible after 26 September 2022 that would have resuscitated the duty, but on the evidence before me he never did. He kept pressing for accommodation which he regarded as suitable to meet his unevidenced greater needs. 169.Is the Authority in breach of PSED? In my judgment the Defendants have carefully focussed on the Claimant’s disabilities save in relation to the fire risk. They have been frustrated in their ability to do so by the Claimant’s refusal to provide any medical evidence, notes, reports and treating doctors’ details so that proper information can be obtained and assessed. 170.What, if any, are the appropriate remedies? The Claimant seeks a declaration. The Claimant also seeks a mandatory injunction ordering the Defendant to provide suitable temporary accommodation. The draft order does not specify whether that would be one or two bed accommodation so it lacks particularity and will lead to more satellite litigation which will be expensive. 171.The Court’s power to grant a mandatory injunction flows from S.37(1) of the Senior Courts Act 1981. It depends on the “just and convenient” test. 172.The House of Lords set out guidance on mandatory injunctions in Co-operative Insurance v Argyll Stores [1998] A.C. 1. That was a case involving a business and the Claimant sought an injunction to force the Defendant to continue running it. Lord Hoffman listed inter alia four matters to take into account at para. 4. 173.The need for constant supervision. Lord Hoffman stated:“The most frequent reason given in the cases for declining to order someone to carry on a business is that it would require constant supervision by the court. In J. C. Williamson Ltd. v. Lukey and Mulholland (1931) 45 C.L.R. 282, 297-298, Dixon J. said flatly: 'Specific performance is inapplicable when the continued supervision of the court is necessary in order to ensure the fulfilment of the contract.'”And further:“… The judges who have said that the need for constant supervision was an objection to such orders were no doubt well aware that supervision would in practice take the form of rulings by the court, on applications made by the parties, as to whether there had been a breach of the order. It is the possibility of the court having to give an indefinite series of such rulings in order to ensure the execution of the order which has been regarded as undesirable.”174.The expense of enforcement. Breach of a mandatory order may lead to contempt proceedings therefore it may lead to heavy and expensive litigation. On this topic Lord Hoffman said:“… A principal reason is that, as Megarry J. pointed out in the passage to which I have referred, the only means available to the court to enforce its order is the quasi-criminal procedure of punishment for contempt. This is a powerful weapon; so powerful, in fact, as often to be unsuitable as an instrument for adjudicating upon the disputes which may arise over whether a business is being run in accordance with the terms of the court's order. The heavy-handed nature of the enforcement mechanism is a consideration which may go to the exercise of the court's discretion in other cases as well, but its use to compel the running of a business is perhaps the paradigm case of its disadvantages and it is in this context that I shall discuss them.”And further:“Secondly, the seriousness of a finding of contempt for the defendant means that any application to enforce the order is likely to be a heavy and expensive piece of litigation. The possibility of repeated applications over a period of time means that, in comparison with a once-and-for-all inquiry as to damages, the enforcement of the remedy is likely to be expensive in terms of cost to the parties and the resources of the judicial system.”175.The need for precision. Lord Hoffman ruled as follows:“One such objection, which applies to orders to achieve a result and a fortiori to orders to carry on an activity, is imprecision in the terms of the order. If the terms of the court's order, reflecting the terms of the obligation, cannot be precisely drawn, the possibility of wasteful litigation over compliance is increased. So is the oppression caused by the defendant having to do things under threat of proceedings for contempt. The less precise the order, the fewer the signposts to the forensic minefield which he has to traverse. The fact that the terms of a contractual obligation are sufficiently definite to escape being void for uncertainty, or to found a claim for damages, or to permit compliance to be made a condition of relief against forfeiture, does not necessarily mean that they will be sufficiently precise to be capable of being specifically enforced. So in Wolverhampton Corporation v. Emmons, Romer L.J. said, at p. 525, that the first condition for specific enforcement of a building contract was that'the particulars of the work are so far definitely ascertained that the court can sufficiently see what is the exact nature of the work of which it is asked to order the performance.'Similarly in Morris v. Redland Bricks Ltd. [1970] A.C. 652 , 666, Lord Upjohn stated the following general principle for the grant of mandatory injunctions to carry out building works:'the court must be careful to see that the defendant knows exactly in fact what he has to do and this means not as a matter of law but as a matter of fact, so that in carrying out an order he can give his contractors the proper instructions.'Precision is of course a question of degree and the courts have shown themselves willing to cope with a certain degree of imprecision in cases of orders requiring the achievement of a result in which the plaintiffs' merits appeared strong; like all the reasons which I have been discussing, it is, taken alone, merely a discretionary matter to be taken into account: see Spry, Equitable Remedies , 4th ed. (1990), p. 112. It is, however, a very important one.”176.Unjust enrichment of the Claimant. In the context of the facts of the Co-operative case Lord Hoffman considered whether damages were an adequate remedy rather than an injunction in the light of the principle that unjust enrichment should not result from the granting of the injunction. 177.A year later in R (Ojuri) v Newham LBC [1999] 31 H.L.R 452, Collins J considered the suitability of the interim accommodation offered by the defendant HA. He ruled as follows:“7. Where a ground for judicial review is made out, the court retains the discretion to refuse to grant relief. The exercise of this discretion involves close consideration of both the nature of the illegality of the decision and its consequences: R. v. Secretary of State for the Environment, ex p. Walters , R. v. Brent London Borough Council, ex p. O'Malley (1997) 30 H.L.R. 328, C.A. ; R. v. Islington London Borough Council, ex p. B (1997) 30 H.L.R. 706, Q.B.D. ; R. v. Islington L.B.C., ex p. Degnan (1997) 30 H.L.R. 727, Q.B.D.”178.Conduct is relevant to whether a mandatory injunction is granted. This is part of the equitable principle that the Claimant must come before the Court with “clean hands”. In this case the Claimant’s conduct has not assisted either the Defendants or the Court. The failure to provide, with his homelessness application, any current medical notes, doctors’ diagnoses or prognoses and any letter from his GP or treating neurologists, pain management experts or consultant orthopaedic surgeon in particular about his spinal condition and ability to walk, was particularly unhelpful. This unhelpfulness flowed over into the judicial review claim because the Claimant attached no medical evidence to his witness statements and provided no medical notes to the Court. I do not consider that the Claimant has complied with his duty of candour to this Court. Declaration179.In my judgment a declaration could have been justified in relation to the Defendants’ failure to accept that the S.188(1) application engaged their duty between 26.8.2022 and before 26.9.2022 but there is no main ground of review asserting any claim for such. In addition all of the circumstances, the Claimant’s lack of candour and his refusal of the interim accommodation offered, lead me to consider that a declaration to that effect is not warranted now.180.After 26.9.2022, because I have ruled that the Defendants’ decision that the Claimant is suitably housed at home is unlawful due to the fire risk, a declaration to that effect could be granted, however the need for such a declaration does not exist. The reason why the Claimant is still at his Park West flat is that he refused to accept alternative accommodation on that very day. Since 26.9.2022 I have found that the Defendants’ S.188(1) duty was suspended. I have found that the Claimant had not revived his application because since then he has refused to accept the Defendants’ assessment of his medical condition and refuses to accept the Defendants’ assessment of his interim accommodation needs yet at the same time he has refused to evidence his own assertions of medical conditions. 181.Making a declaration that the Claimant is entitled to suitable interim accommodation will not resolve the root issues: (1) What is the diagnosis of the Claimant’s asserted spinal condition? (2) Which symptoms are supported by the treating doctors? (3) Can the Claimant walk? (4) Does the Claimant need 24 hour care? (5) Does the Claimant need accommodation with one bedroom or two? (6) Should the property be wheelchair adapted or not? I do not consider that a declaration will resolve these issues.182.As for a mandatory injunction. The Defendants have offered and I have no doubt will continue to offer suitable interim accommodation if properly requested but it will not meet the Claimant’s criteria unless and until medical evidence is obtained to clarify the issues. There is no evidence in my judgment that the Defendants are being unreasonable over their S.188(1) duty, save for their assessment of the Claimant’s current flat from a fire risk point of view.183.Applying the just and convenient test and taking into account the factors set out by Lord Hoffman above and the Claimant’s conduct I do not consider that the Claimant has substantive grounds to justify a mandatory order and in any event I do not consider that it would be right or fair, just or convenient to make a mandatory order.184.The Authority has accepted that the duty under s188(1) is immediate and non-deferable and therefore it is no longer in issue. However the Claimant still seeks a declaration to that effect. This acceptance was made between the parties without any agreement as to the date on which the decision to accept the S.188 (1) duty was required. The evidence shows it was accepted on 26.9.2022 and I have found that the duty was discharged the same day by the offer of interim accommodation. I do not consider that a declaration is necessary or justified on the facts.Conclusions185.For the reasons set out above I dismiss the claim for a declaration and I also dismiss the claim for a mandatory injunction. 186.The Claimant shall draw up the order and submit it to the court within 7 days of the judgment being handed down. 187.If the parties can agree consequentials so much the better. If not a 30 minute hearing can be requested for listing before me within I would hope 7 days of the judgment being handed down.END