We represented a vulnerable homeless couple who had been regularly rough sleeping for almost a year. We had been asked to assist as the couple felt that their lawyer was not providing sufficient assistance.

Changing lawyers

The couple were refugees and were sleeping rough while they reviewed a decision that they were not in priority need. They were part of Housing Action Southwark and Lambeth (HASL), who were helping to liaise with their lawyers due to the couple’s vulnerability.  The review had taken many months, as the council kept making minded-to decisions; these letters are used where the council believes that their original decision was deficient. When the latest minded-to letter was sent, the couple felt that their lawyer was not adequately responding. Therefore, HASL helped arrange for GT Stewart to take on their case.

HASL emailed the local authority to ask that any review decision was delayed while the change of lawyers was completed. Within minutes the council sent a final review decision. Again, this found that the couple were not in priority need for homeless assistance. HASL raised how their request had been sent before the decision. They asked the council to withdraw the review decision so that the new lawyer could make review submissions. The council refused this request.

Section 204 homeless appeal

As a final review decision had now been made, we urgently assisted the couple to submit an appeal in the County Court. The main ground was procedural unfairness in refusing the homeless applicant’s request to change legal representative. The council had been notified of this before issuing the final decision.

To support the appeal, we obtained expert evidence. It showed what evidence would have been provided if the review had been allowed to continue. This demonstrated that the couple suffered from:

• significant mobility difficulties
• PTSD
• impaired memory

This evidence showed the impact of the council’s refusal to allow our clients to change solicitors and therefore the effect of the procedural unfairness.

Due to the strength of the new evidence, the applicants made a fresh homeless application. The advantage of this was that they could obtain temporary accommodation (at that time, they were housed in cold weather emergency housing, and faced further rough sleeping when the weather improved).

The council accepted the new homeless application and provided temporary accommodation. The appeal was settled as it had become academic.

Social housing

Due to the strength of the medical evidence, we sent a letter before claim to try to obtain suitable temporary accommodation. Their current temporary accommodation had stairs, which went against the occupational therapist’s advice.

In response, the council accepted the main homeless duty. However, they also gave the couple reduced priority on the waiting list as they had not lived in the borough for enough years. We reviewed this decision as we believed it was discriminatory against our clients as they could not have lived in the borough for the required period of time as they were refugees (similar to the arguments raised in Ward & Ors, R (on the application of) v The London Borough of Hillingdon & Ors (2019) EWCA Civ 692).  We also continued to challenge the suitability of the temporary accommodation.

The council responded by making a direct offer of ground floor, accessible, social housing, which our client’s happily accepted.

Our clients were represented by Solicitor, Luke Sheldon, and was greatly assisted in the appeal proceedings by counsel Nick Bano of Garden Court Chambers.

If you do not agree with a decision made during a homeless application then, for many of these decisions you can request a review. If you make a review request within the time limit, the council will then conduct a review.

A review is where a more senior officer looks at your case again and you have an opportunity to submit evidence and to make arguments about why the original decision should be overturned. When the council make a final review decision, the only way to challenge this is with a Section 204 appeal. The Section 204 appeal should be submitted within 21 days of the review decision.

Section 204 appeals are in a County Court, and they can only be made on points of law. This means the Court does not normally look at the question, for example, whether you are in priority need. The Court does not usually make its own decision on that point. Instead, the Court decides if the council’s decision is lawful. If it is not, they normally order the council to conduct a new review.

Refugees have had their application for asylum accepted, and have been given leave to remain. They therefore are eligible to make homeless applications and to apply for social housing. However, each local authority makes their own rules that determine if you can join the housing waiting list. These rules also determine what priority you will have on the list.

‘Residence rules’ are a common feature of many local authorities waiting list rules. These rules require residence in the local authority area for a certain period of time before joining the list, or before you are awarded a higher priority. Residence rules normally preference British people over refugees. This is because British people are more likely to have lived in an area for longer. Therefore there is the potential that these rules can be discriminatory.

One of the tests a local authority has to apply when considering a homeless application is whether the applicant is in ‘priority need’. There are a number of different reasons a person can be in priority need (see Shelter explainer). For example, if your household includes dependant children then you should be in priority need.

The category of priority need that was in dispute in this case was whether our clients were vulnerable for health reasons. London councils regularly apply a very strict approach to this test, which is normally higher than what a lot of us would consider should be the threshold for whether a person is too vulnerable to be homeless.