Heavey v The Greater London Authority

Claim number. B02CL457 IN THE CENTRAL LONDON COUNTY COURT Between: DECLAN HEAVEY Claimant and THE GREATER LONDON AUTHORITY Defendant ______________________________________________________________________________________ CLAIMANT’S RESPONSE TO DEFENDANT’S SKELETON ARGUMENT for the Preliminary Hearing 3 February 2016 ______________________________________________________________________________________ Introduction 1.

On 1 February 2016 the Defendant (“GLA”) served the Claimant with its Skeleton

Argument and Schedule of Costs for this hearing. In light of r.54.2(a), and for the

avoidance of doubt, the Claimant forgoes an order for a review of the GLA’s decision

to refer him and his wife to GLA Clearing House (the “referral decision”) in order to

pursue the overriding objective of the declaration of unlawfulness sought in his Claim Form.

2.

Under r54.3(1) of the CPR where a claimant is seeking a declaration there is no legal requirement for the judicial review procedure to be used.

54.3(1) The judicial review procedure may be used in a claim for judicial review where the claimant is seeking – (a) a declaration

3.

It is conceded that this is a public law matter: the referral being a decision of a public body. “Public law permits a challenge to decisions and policies of government and other

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public bodies on the grounds that they are unlawful or irrational. The most common challenge is by way of judicial review, although public law issues may also be pursued through claims for damages, inquest verdicts, Ombudsman and complaints schemes and public inquiries” (Hickman and Rose Solicitors, 2016).

4.

As necessary clarification in this response to the Defendant’s Skeleton Argument, the Claimant’s County Court claim is a new claim, distinct from that contained in his claim for judicial review (because he is alleging that the Defendant has failed to review the referral decision that was the subject of his claim for judicial review).

5.

For the reasons set out below the Claimant’s claim, as it is being pursued, should not have been brought in the High Court by means of judicial review. There were no grounds to appeal the judicial review judgment. Instead he commenced proceedings in the County Court on 10 September 2015.

Background 6.

On 17 May 2014 the Claimant and his wife were provided with accommodation by the

Family Mosaic Housing Association as clients of GLA Housing First, and with support from the Single Homeless Project (“SHP”), one of three charitable organisations funded by the GLA to operate Housing First within the Greater London area.

7.

Housing First is an internationally acclaimed programme for people with a history of rough sleeping, the core principle of which is the provision of permanent

accommodation and non-compulsory support (Johnsen with Teixeira, 2010). These principles are contained in a funding agreement between the GLA and SHP dated 13 March 2014, which provides that “clients who meet the criteria for a Housing First

offer will be offered long term tenancies…. Long term tenancies would mean for a minimum of two years with the possibility to extend and preferably for the lifetime of the client.”

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8.

On 4 September 2014, less than four months into the Claimant and his wife’s tenancy,

the Claimant received an email from SHP informing him for the first time that GLA

Housing First was a pilot scheme culminating on 31 March 2015 and that both he and

his wife would be referred to GLA Clearing House, operated by St Mungo’s Broadway, with the support to be provided by the Tenancy Sustainment Team (provided by Look

Ahead), rather than SHP. 9.

GLA Clearing House departs significantly from the key principles of Housing First, in

that it does not provide the permanent accommodation and voluntary support

characteristic of the Housing First model. Rather, it is a coercive programme that requires clients to comply with holistic support plans and “eligibility for flats, issued

on two-year renewable Assured Shorthold Tenancies, terminates when individuals are

deemed to no longer require support to live independently” (Johnsen and Teixeira, 2012).

10.

No mention was made in SHP’s email of 4 September 2014 to a possible review of the

decision by the GLA to refer the Claimant and his wife to its Clearing House programme or how he could make a complaint and how such a complaint would be handled.

11.

The Claimant wrote on numerous occasions to SHP and provided the GLA with two

pre-action protocol letters protesting his and his wife’s referral to GLA Clearing House, but to no avail. Finally, on 18 June 2015, the Claimant filed at the High Court

an application for permission to apply for a judicial review against the GLA. The GLA

in its Grounds of Opposition to the Claimant’s claim for judicial review stated: “[A]t the end of the Housing First pilot, the tenants would revert to being standard Clearing

House tenants and as such would fall to be referred to the TST like all other Clearing House tenants…. The GLA, acting reasonably and within its statutory powers, was entitled to choose Clearing House as a replacement for the Housing First pilot."

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12.

By order dated 12 August 2015, the High Court refused the Claimant permission to bring judicial review proceedings on the grounds that his claim form should have

been filed within three months after the grounds to make the claim arose on 4 September 2014, and that the GLA had not committed a violation of the applicable

law by referring him and his wife from GLA Housing First to GLA Clearing House, thereby terminating their eligibility for their flat within one year of the commencement of their tenancy because they are able to live independently.

13.

It is evident from SHP's email of 4 September 2014, judicial review pre-action

correspondence and the GLA's Grounds of Opposition to the Claimant’s claim for

judicial review that the Claimant has been repeatedly deprived of his right of review,

and that the GLA has not properly considered the impact of its referral decision on his family life. For example, the GLA states at paragraph 13 of the Grounds of Opposition that its initial letter of 23 March 2015 was not a new decision but a response to the Claimant’s first pre-action protocol letter, and that it "has not reviewed the earlier [referral] decision or taken any new decision regarding the Claimant's tenancy".

14.

On 10 September 2015, the High Court having established that the GLA has not

committed a violation of the applicable law (and therefore with no grounds to appeal the judicial review judgment), the Claimant filed a claim for damages against the Authority in the Central London County Court under Article 8 of the Human Rights Act 1998 (the right to a family life).

Connors v UK (2004) 15.

The Claimant has not sought to re-litigate in the County Court what has already been

dealt with within judicial review proceedings. In the County Court the Claimant has

challenged the GLA for depriving him of his right of review in respect of the referral

decision that was made in line with applicable law, not the lawfulness of the decision to refer him and his wife to GLA Clearing House which was the subject of the judicial review application.

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16.

In the Claimant’s claim before the County Court he has cited Connors v UK (2004) in

saying that the legal framework applying to the referral decision that has deprived

him of a review has not provided him and his wife with sufficient procedural protection of their rights. In Connors v UK the European Court of Human Rights found

that the existence of judicial review did not provide a safeguard to gypsies where the local authority terminates licences in accordance with the applicable law.

17.

The Claimant calls upon the GLA to agree at this hearing to a review of its decision

regarding his and his wife’s tenancy, along with his right of appeal to an independent tribunal, given that the legal framework applying to the decision that has deprived the

Claimant of a review has not provided him and his wife with sufficient procedural protection of their rights, in violation of Article 8.

Submissions 18.

The Claimant’s claim, as it is being pursued, should not have been brought in the High Court by means of judicial review as: a.

The Claimant’s claim must be seen to be a challenge to the Defendant’s decision to refer him and his wife to GLA Clearing House. It is not, as contended by the

Defendant, “a challenge to the Defendant’s decision not to continue to provide the Claimant with support through Housing First”. A public law matter does not have to be brought in the High Court by means of judicial review.

b. The Claimant is seeking a declaration that the legal framework applying to the

referral decision that has deprived him of a review has not provided him and his

wife with sufficient procedural protection of their rights, and he forgoes an

order that the GLA “reviews the referral decision and provides the Claimant with the opportunity to appeal to an independent tribunal if he is not satisfied with the outcome.” In the Claim Form the Claimant first wrote that he is seeking: [A] declaration that the Defendant has acted unlawfully….

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19.

For the reasons set out above the Claimant respectfully submits that this Court has

jurisdiction to hear this claim. The Claimant further respectfully submits that, if the

Court is minded to agree, then with the overriding objective the Claim Form should not be set aside.

Appeal 20.

If unsuccessful the Claimant respectfully requests leave to appeal the issue of the

Court’s jurisdiction to hear his claim for a declaration (that the legal framework

applying to the referral decision that has deprived him of a review has not provided

him and his wife with sufficient procedural protection of their rights) and damages for distress.

Declan Heavey

Claimant

2 February 2016

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