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Mr. Don Foster: I am grateful to the hon. Gentleman for the clear support that he is giving to the new clause. However, so that he does not mislead the House, I remind him that the small issue covered by the new clause is whether a local authority is right to deny accommodation to a homeless person whose local authority has deemed that it is unwilling even to treat that person as homeless. It is a small issue, although vital for the individual, and that is why it is appropriate that the county court should make the decision.
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Mr. Clifton-Brown: I entirely accept what the hon. Member for Bath (Mr. Foster) says. I think that my simpler language was compatible with his more detailed legal language. My point about eligibility being subject to judicial review covers the point that he has just made. I hope that the Under-Secretary of State for Transport, Local Government and the Regions can give the House a more cogent reason for having two judicial routes than he gave in Committee on 10 July.
We all have a great deal of sympathy for people in housing that is not suitable within the meaning of the legislation because it is overcrowded or does not meet health and safety requirements. However, I think that it will be difficult for authorities to meet the exacting requirements of amendment No. 21 when it comes to those who are temporarily housed. So although I have considerable sympathy with the hon. Gentleman's proposal and believe that he is right to bring the matter to the attention of the House, I suspect that in practical terms it is not realistic. We await the Minister's response with interest.
Dr. Whitehead: We are condemned for ever to repeat the observation that we appear to be taking part in the film "Groundhog Day". If we were, this would be the third or fourth attempt of the hon. Member for Bath (Mr. Foster) to secure the undying love of Andie MacDowell.
New clause 4 would give the county court powers to intervene in a decision by a housing authority not to continue to accommodate a homeless applicant pending
a review by the authority of its decision on the homelessness case. Those powers would be similar to those in clause 11 which give the county court the power to intervene in a decision by a housing authority not to exercise its discretion to continue to accommodate an applicant pending an appeal to the county court about the homelessness decision under section 204 of the Housing Act 1996.It might be helpful to remind right hon. and hon. Members of the two procedural stages open to an applicant who is dissatisfied with the housing authority's decision on his homelessness case. Indeed, the hon. Member for Bath has mentioned this distinction. First, under section 202 of the 1996 Act, he has the right to request the authority to review its decision. Secondly, if he is dissatisfied with the authority's decision on review, or a decision is not provided within the time allowed, the applicant has the right, under section 204, to appeal to the county court on a point of law.
Under current provisions, applicants who wish to challenge an authority's decision not to continue to accommodate pending either a review by the authority or an appeal to the county court must seek judicial review of that decision in the High Court. This provides an avenue of redress for applicants in the event that an authority does not make a proper and reasonable decision—for example, by failing to give due consideration to all the circumstances or failing to consider them at all. It is appropriate that the discretion whether applicants should continue to be accommodated once the authority has completed its detailed inquiries and satisfied itself of the facts of the case should rest with the authority.
Applying to the courts to overturn an authority's decision should be a matter of last resort and should be considered only when it is clear that the authority has not made a proper decision. The nub of the hon. Gentleman's argument is why we have made provision in clause 11 to give the county court the power to intervene when an authority decides not to continue to accommodate an applicant pending an appeal to the county court about the decision on the homelessness case.
During the Report stage of the Homes Bill, my right hon. Friend the Member for Greenwich and Woolwich (Mr. Raynsford), who was then Minister for Housing and Planning, gave a commitment to the House to consider whether there was a case for giving the county court power to require an authority to accommodate an applicant pending an appeal to that court. That was in response to a new clause moved by the hon. Member for Bath—one of the first of his postcards—which included such provision.
Following that commitment, my right hon. Friend duly consulted colleagues at the Lord Chancellor's Department and resolved that there would be merit in providing such a power. However, that merit concerned practical considerations. While it remained appropriate in principle for legal challenge of a local authority's decision not to exercise its discretionary power to continue to accommodate to be subject to judicial review in the High Court, there is a persuasive administrative and practical argument for such decisions to be considered in the county court when that court is already considering the substantive decision about the homelessness case on appeal under section 204 of the 1996 Act. In short, it does
not make administrative sense for two different courts to consider different decisions about the same homelessness case at the same time.The Homes Bill fell when the election was called, but a suitable provision—clause 11—was included in the Homelessness Bill when it was introduced shortly after the election. Meanwhile, the principle of judicial review by the High Court remains valid when applicants wish to challenge an authority's decision not to continue to accommodate pending a review by the authority of the homelessness decision.
Mr. Clifton-Brown: Will the Minister ponder on the illogicality of his remarks? A decision against an authority's decision to continue to house, which is the most important decision faced by a homeless person, has to go through the cumbersome procedure of judicial review. A decision on whether the person is eligible or suitable can go to the county court—a lower court—and can go on a point of law, which will undoubtedly have to go up through the system if it is a complex point of law. What the Minister has said is illogical. Why cannot the decision whether to continue to house be heard by the county court along with the other decisions?
Dr. Whitehead: We are discussing the two stages of the process—review and appeal. The administrative case for conflating the two during the course of an appeal was considered and has indeed been put into the legislation. If the hon. Gentleman can be patient, I will explain why the Government cannot accept the tempting notion of symmetry across the board and do not wish to have a county court course of appeal when a review has taken place.
It is interesting that, during the passage of the Homes Bill, the hon. Member for Bath did not propose a power for the county court to intervene in local authority decisions at the review stage but only at the appeal stage. I put it to him that that might relate more to the collection of postcards than to anything else.
The homelessness legislation makes clear distinctions between those who have a priority need and those who do not, between those who have become homeless through no fault of their own and those who have brought homelessness upon themselves. It is simply not practical or reasonable to expect local housing authorities to arrange accommodation for everyone every time they have to find a new home.
Local authorities have an immediate duty to secure accommodation for new applicants where there is reason to believe that they are homeless and in priority need, until the authorities have had a chance to look into the circumstances and satisfy themselves whether there is homelessness, whether it was caused by the applicant, and whether there is priority need. It is right that authorities should have that immediate duty and that applicants should have the right to ask the authority to review any decision that goes against their interests—that they do not have priority need, for example, or became homeless intentionally. However, it is important that authorities should have the discretion to decide whether there is good reason to continue to accommodate applicants during a review, and that that discretionary power should not be
undermined by the possibility of routine intervention by the courts. The question is whether there would be a danger of such intervention by a court on a routine, or fairly routine, basis if the present arrangements for review were changed.It is important that that discretion should not be undermined by such intervention on a routine basis. I have mentioned that legal challenge to the authority's decision should be made only in exceptional circumstances, for example where the authority has failed to take account of all the circumstances or has acted unlawfully. The Court of Appeal has made it clear that the High Court should give permission for applications for judicial review of such decisions to be heard only where there appear to be exceptional circumstances. In the Government's view, that is the right policy and the right approach.
Mr. Don Foster: I entirely agree with the Minister that there should not be a system that allows people to intervene routinely. We need an appropriate filtering mechanism in whichever court is ultimately decided on. Will the Minister tell the House whether the filtering mechanism used by the High Court through the judicial review process is different from what would have to be used by the county court? If so, why is the legal opinion wrong that the London borough of Camden ex parte Mohammed is the standard procedure in either case?
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