Craig Barlow and Olivia Beach, a second six pupil in Chambers, have succeeded in a judicial review challenging the Secretary of State for the Home Department’s (“SSHD”) unreasonable delay in relocating the Claimant who suffers from severe medical issues.

In a judgment handed down on 15 August 2022 in R (on the application of Shajmin Akter Parul) v Secretary of State for the Home Department [2022] EWHC 2143 (Admin) it was found that the SSHD failed to relocate the Claimant within a reasonable period of time, in breach of her Section 4(2) duty under Section 4 of the Immigration and Asylum Act 1999.

Important findings were also made regarding the evidence the Court would expect to see from the SSHD to support a defence in cases similar to this and the cases of R (Princess Bell) v London Borough of Lambeth [2022] EWHC 2008 (Admin) and R (Elkundi) v Birmingham City Council and ors [2022] 3 WLR 71, setting out the principles governing the grant of a mandatory order for breach of Section 193 main housing duty were applied when considering a mandatory order in the context of the SSHD failing to provide suitable accommodation in breach of her Section 4(2) duty.

Unreasonable delay

The Claimant, who suffers from multiple chronic medical conditions, including complex epilepsy which puts her at immediate risk of injury and death (SUDEP) from seizures made a relocation request on 13 January 2022 on medical grounds. The Defendant accepted the Claimant’s relocation request to Tower Hamlets on these grounds on 3 March 2022.

By the date of the hearing (27 July 2022), 146 days had passed since the Defendant accepted the Claimant’s relocation request but had failed to relocate her. As outlined by Deputy Judge Benjamin Douglas-Jones QC in his judgment at [55] “On any view, given my finding above that the Defendant’s section 4(2) duty was engaged, the Defendant’s failure was in breach of that duty and unlawful”. Furthermore, it was found that “the failure would still, in my judgment, be unlawful as unreasonable given the Claimant’s serious medical conditions and her specific needs.”

The Defendant had submitted that the acceptance to move the Claimant should not be taken as acceptance that there was an imminent breach of Article 3 if the Claimant remained in her current accommodation. Instead, the prospect of an Article 3 breach had only been imminent when the Claimant was originally accommodated and what was considered an unreasonable period would depend on whether there was an imminent Article 3 breach. This submission was not accepted, with Deputy Judge Benjamin Douglas-Jones QC finding at [52] of his judgment that “the decision to move the Claimant coalesces with the duty to accommodate the Claimant, against the backdrop of the imminent prospect of an Article 3 breach (prima facie accepted by the Defendant following her consideration of the 13 January 2022 email)”.

Deputy Judge Benjamin Douglas-Jones QC went further, stating “The evidence before me leads powerfully to the conclusion that the Defendant formally decided on 3 March 2022 to move the Claimant in accordance with her section 4(2) duty, following the case being put before a medical assessor. Therefore, the Court does not need to determine through any assessment of the evidence whether, and if so when, the prospect of an Article 3 breach became imminent.”

This is particularly important as it demonstrates that where the SSHD takes a decision, such as relocating an individual, in accordance with her Section 4(2) duty, and therefore her Section 4(2) duty is engaged, it is accepted that there is a risk of an imminent Article 3 breach.

Secretary of State for the Home Department’s failure to file evidence

The Defendant’s failure to file any evidence in support of her defence was described at [53] of the judgment as “surprising” and Deputy Judge Benjamin Douglas-Jones QC states at [54] of his judgment that the Defendant’s submissions concerning shortage of property stock and what was a reasonable period of time “were devoid of the evidential support for which they cried out.”

A non-exhaustive list was also set out at [54] of the judgment of the evidence the Court would have expected to see, specifically:

(i) whether the Claimant's case had been prioritised by the Defendant;

(ii) how prioritisation works;

(iii) whether the Claimant had been categorised under The Guide in her capacity as a "service user";

(iv) what category of service user the Defendant deemed the Claimant to be: she is ostensibly "Category C" whereby dispersal should normally occur within five to nine days of the Provider receiving the relevant accommodation request from the Defendant;

(v) in the context of the Defendant's non-delegable duty, whether the Defendant had taken steps to find out what accommodation corresponding to the Defendant's assessment of the Claimant's is available;

(vi) records of accommodation stock and/or voids of the provider;

(vii) whether any other providers had contracts with the Defendant in Tower Hamlets;

(viii) what steps had been taken to look beyond the contract with provider(s);

(ix) who had searched for accommodation for the Claimant, on what dates, and by what mechanism;

(x) whether an agency had been used to effect searches; and

(xi) what accommodation was available in Tower Hamlets offered both by the provider and generally.

This is a very helpful finding in that this list can be used for similar future cases which are considering what is a reasonable period to demonstrate what the SSHD may need to provide as evidential support and what the Court may expect to see.

Relief

When considering relief, the Claimant sought a mandatory order and the Defendant submitted a declaration would have been appropriate.

In considering relief, a particularly interesting part of Deputy Judge Benjamin Douglas-Jones QC’s judgment is the consideration of the cases R (Princess Bell) v London Borough of Lambeth [2022] EWHC 2008 (Admin) and R (Elkundi) v Birmingham City Council and ors [2022] 3 WLR 71. In particular, at [61] of the judgment, the range of factors that will be relevant to whether it is appropriate to grant a mandatory order requiring the local authority to comply with its duty as per Elkundi.

At [62] of the judgment, Deputy Judge Benjamin Douglas-Jones QC, referred to the statement made in Elkundi by Lewis LJ (with whom Underhill and Peter Jackson LJJ agreed):

I consider that the correct approach is to consider whether the local housing authority has taken all reasonable steps to perform the duty. If it has done so, and has not been able to secure suitable accommodation, that may be a good indication that it may not be appropriate to grant a mandatory order as it may not be possible to secure suitable accommodation within a specified time. A local housing authority can, however, be expected to demonstrate what steps it has taken and what the difficulties are.

Further, at [63], it was stated that “The burden was on the authority to show what steps had been taken; see Elkundi at [132] and [140] and Princess Bell at [57] and [59].”

Deputy Judge Benjamin Douglas-Jones QC applied the principles from Elkundi and Princess Bell when considering whether a mandatory order was appropriate to require the Defendant to comply with her Section 4(2) duty. It was found in this case that given the Secretary of State for the Home Department’s failure to place any evidence before the Court, “it could not be said that the Defendant had taken all reasonable steps to secure accommodation for the applicant”. In those circumstances, it was deemed appropriate to grant a mandatory order to require the Defendant to comply with her duty.

As such, the principles in Elkundi and Princess Bell were considered in the context of the SSHD’s failure to provide suitable accommodation in breach of her Section 4(2) duty and it was found that this duty is considered to be analogous to the Section 193 main housing duty.

Following the hearing the Defendant did suitability re-accommodate the Claimant in Tower Hamlets on 12 August 2022. As such, Deputy Judge Benjamin Douglas-Jones QC found at [66] of the judgment: “In those circumstances a mandatory order is no longer appropriate. The parties now agree that declaratory relief is appropriate”.

The full judgment can be read here.

Craig Barlow and Olivia Beach were instructed by Lawstop Solicitors.