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Scottish Charity Register No. SC043760

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Gatekeeping at BCC

December 08 2010
A year after Birmingham was found guilty of gatekeeping, it runs into more little legal difficulties


In the December 2009 case of Kelly & Mehari v Birmingham City Council (BCC), the council was found guilty of gatekeeping - it appeared to have an unlawful policy of refusing interim accommodation to homeless applicants under section 188 of the Housing Act 1996. The council blamed individual officers, but the court held that the refusals were systematic. BCC said it would amend its policies.

Despite this, there has just been a judicial review of the similar cases of four more homeless people - Messrs Khazai, Mirghani, Azizi and Ms Ibrahim - who tried to apply as homeless in February this year. BCC was cleared of malfeasance - a legal term meaning 'doing bad' - but hardly emerges smelling of roses. Justice Foskett suggested BCC should conduct a "thorough review of [its] procedures".

Mr Khazai's application was not taken, though he was homeless and in priority need, and he was referred to the charity Midland Heart. His solicitors obtained an email from Mr Hardy, BCC's interim head of housing needs, dated 24 February. It said: "Please note with immediate effect all single homeless who are presenting as homeless/roofless and Domestic Violence victims requiring refuge must be referred to the appropriate funded support service. We should not be completing a homeless application."

Instead, they were to be diverted to St Basil's (under 25s); Midland Heart (vulnerable over 25s); or Trident or Birmingham & Solihull Women's Aid (domestic violence victims).

BCC subsequently stated that this advice had been corrected quickly and disseminated in two subsequent briefings.

Or not, as the case may be...

In what the court described as "not a very promising start to the credibility of the Council's factual case", Mr Hardy said there was no specific reference to the incorrectness of his e-mail at the briefing on 26 February. Indeed his deputy, Vicki Pumphrey, emailed on the same day that team leaders were monitoring 'non-compliance' with it. Mr Hardy did retract that original email, but not until 17 March, by which time Mr Khazai's solicitors had applied for a judicial review.

The court held that the instructions in the email were unlawful and that BCC had acted unlawfully towards Mr Khazai, but Mr Hardy was not guilty of malfeasance; the email, which he apparently drafted on his own initiative, was badly thought-out rather than deliberately misleading.

BCC told Mr Mirghani every day for two weeks to come back the next day. The council sent a letter - to the wrong address - on 4 March saying that he was homeless but not in priority need. The court disagreed: "it is difficult to see on what basis he could not be said to be both homeless and in priority need". His solicitors initiated the judicial review on 26 March. On 22 June, the BCC accepted that Mr Mirghani was owed full housing duty. However, his claim, and Mr Azizi's, went ahead on the basis of 'wider interest': the same-day policy (assessing applications on the day they are made rather than taking time to consider them).

Mr Azizi went to BCC on 2 February and said he was homeless. He was told to return on the day he was evicted. Shelter faxed evidence of his medical complaints to the council and requested interim accommodation. BCC turned down the request.

The court found that the decisions on interim accommodation in both Mr Mirghani's and Mr Azizi's cases were unlawful, adding that "the nature of those statutory duties is now well-established and ought to be capable of being applied without significant mistakes".

Ms Ibrahim's application and the decision on interim accommodation were delayed, but full housing duty was subsequently accepted.

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