A culture of refusal?
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Marc Bloomfield
Description: Lady Justice close up (Hermann Traub_Pixabay)
Mike McIlvaney and Rosaleen Kilbane discuss two cases in which the Legal Aid Agency’s response to applications for public funding suggests that its default position is to turn them down.
This year, judgments were delivered in two important housing law cases: R (Elkundi and others) v Birmingham City Council [2021] EWHC 1024 (Admin), 23 April 2021, and R (Nur and another) v Birmingham City Council [2021] EWHC 1138 (Admin), 4 May 2021.
The Elkundi case
Mr Elkundi and his family had moved into their home in January 2015. It was provided first as temporary accommodation pursuant to Housing Act (HA) 1996 s188(3) and then, when the full housing duty was accepted by the council, pursuant to s193(2). In November 2019, via his solicitors, Mr Elkundi requested a statutory review of the suitability of the accommodation, and in January 2020, Birmingham City Council decided that the property was unsuitable. Suitable accommodation was requested and when none was provided, pre-action correspondence ensued.
A judicial review claim was issued on 24 February 2020 and interim relief sought by way of a mandatory order for the provision of suitable accommodation. In March 2020, interim relief and permission for judicial review were refused on the papers. The application was renewed orally, but refused again. The judge criticised the claimant for having issued proceedings.
On 4 November 2020, Andrews LJ granted Mr Elkundi permission to apply for judicial review. She observed that, contrary to the views expressed by the judge at first instance, the claim was plainly arguable, with real prospects of success in the light of R (M) v Newham LBC [2020] EWHC 327 (Admin); April 2020 Legal Action 45, and that she could see little justification for the judge’s criticisms, and ordered expedition. Three other cases in which identical issues arose were subsequently ordered to be heard with Mr Elkundi’s.
After hearing argument over the course of four days, Steyn J held that the duty under HA 1996 s193(2) (the main housing duty) is an immediate, unqualified and non-deferrable duty to secure suitable accommodation, not a duty to secure the availability of suitable accommodation within a reasonable period of time. She further held that the council was operating an unlawful system for the performance of the main housing duty. In particular, she held that placing applicants owed the full housing duty who are in unsuitable accommodation on a waiting list while suitable accommodation is sought, is not a lawful means of fulfilling the duty. The council did this by placing such applicants on its ‘Planned Move List’ (PML).
Steyn J also found that the PML irrationally failed to distinguish between people in suitable accommodation and those in unsuitable accommodation, and that it failed to meet the council’s obligations under Equality Act (EA) 2010 s149. She declared that the council had been in breach of the duty to each of the four claimants and continued to be in breach of that duty in relation to two of them. She made an order requiring the council to find suitable accommodation for these two households, within 12 weeks.
The judge granted the council permission to appeal to the Court of Appeal against her decision that the main housing duty is an immediate, unqualified and non-deferrable duty to secure suitable accommodation. She refused permission to appeal against her findings in relation to the unlawful nature of the operation of the PML.
Legal aid
Emergency legal aid was granted using delegated functions, and the substantive certificate amended to cover the oral application. We applied to amend the certificate to appeal to the Court of Appeal. The application was refused, despite being supported by detailed written advice of specialist counsel. The Legal Aid Agency (LAA) said that the prospects of obtaining a successful outcome in the proceedings were poor. The decision letter stated that ‘two experienced High Court judges have found that there are no prospects of success in bringing a judicial review claim in this matter … the same arguments have essentially been advanced before two High Court judges of some repute and we cannot see the same arguments being sufficient for the Court of Appeal to be of a different opinion’. There was insufficient reasoning on the part of the LAA and no real engagement with the submissions made by specialist housing law counsel in support of the application.
We appealed to the independent funding adjudicator (IFA). The appeal was unsuccessful. The IFA simply agreed with the LAA’s decision and did not engage with the submissions put forward by counsel. It appeared that parts of the IFA’s decision had been copied and pasted from that of the LAA. We threatened judicial review proceedings in respect of the decision. We asked for details of the IFA’s experience and qualifications in the field of housing law or public law. It turned out that they had none. Their specialisms were crime and mental health. In response to our judicial review pre-action protocol letter, the LAA put the matter before a different IFA, and the application to appeal to the Court of Appeal was granted on 25 August 2020.
The Nur case
Mrs Nur was the carer of her adult daughter, who had cerebral palsy. She had been on Birmingham City Council’s housing register since 2011. In April 2019, the council accepted that she was homeless and that it owed her the main housing duty. The council gave preference to homeless people in its allocations policy, and if they bid successfully for a property, it would be offered in discharge of the homeless duty. Mrs Nur bid on a succession of adapted properties and, on each occasion, she was placed in bid position 1. That would normally lead to the property being offered to her. However, these bids were ‘skipped’ and the property concerned offered to somebody else. In July 2019, she was again in bid position 1 for a property. She was then telephoned and told that the property could not be allocated to her because she did not have dependent children.
Following pre-action correspondence, an application for permission to bring judicial review proceedings was issued on 17 July 2019, together with an application for interim relief, in the form of an order preventing the allocation of the most recently bid for property pending the hearing of the application. On the same day, the application for interim relief was refused by a county court judge sitting as a judge of the High Court.
On 16 September 2019, a county court judge, sitting as a judge of the High Court, refused Mrs Nur permission to bring a claim for judicial review on the basis that, as the property had been reallocated, the proceedings would serve no further purpose and would be academic. On 6 February 2020, Swift J granted Mrs Nur permission to bring a claim for judicial review following an oral hearing.
On 19 December 2020, David Lock QC, sitting as a deputy High Court judge, found that the council had been acting contrary to its allocation policy ([2020] EWHC 3526 (Admin)). On 4 May 2021, having heard further argument over two days, he held:
1The council’s allocation policy, as operated in practice by the council, of giving a ‘preference’ to households with children in the allocation of houses with two or more bedrooms when allocating them under the policy: (a) resulted in households that included a disabled person suffering a particular disadvantage as compared with other households; and (b) was not a proportionate means of achieving a legitimate aim.
2In allocating accommodation under HA 1996 Part 6, the council was providing services to a section of the public or exercising a public function for the purposes of EA 2010 Part 3 and was under a proactive duty to make reasonable adjustments under EA 2010 s29(7).
3The council’s allocations policy and its operation put the claimants at a substantial disadvantage for the purposes of EA 2010 s20(3).
4The council acted in breach of its duty to make reasonable adjustments to the allocations policy and its practical operation.
5The claimants had been discriminated against in breach of the council’s obligations under EA 2010 ss19 and 21.
The parties agreed a sum of damages to reflect the discriminatory conduct.
Legal aid
Emergency legal aid was granted using delegated functions, on 16 July 2019. On 25 July 2019, the LAA told us that the exercise of our delegated functions was ultra vires and that it had refused our substantive application: prospects of success were considered to be very poor; permission and interim relief had been refused (when, in fact, permission had not been considered); and the LAA did not believe that this decision could be successfully challenged, but it provided no adequate reasoning for that belief. We appealed against the refusal. As at the date that the permission application was renewed to be heard at an oral hearing, we had no costs cover and the proceedings were conducted at risk. On 23 September 2019, the LAA issued a substantive certificate with effect from 25 July but said there was no right of appeal in relation to the emergency certificate. It was not until 18 October 2019, following pre-action correspondence, that the LAA confirmed that all costs from 16 July would be covered.
Consequences of refusal
Neither of these cases would have come to trial had we not been prepared to fight the LAA, and to work with no costs cover and without knowing whether we would be paid. We had hoped that lessons would be learned following Samuels v Birmingham City Council [2019] UKSC 28 (see ‘Terryann Samuels – the long road to the Supreme Court – struggles with the Legal Aid Agency’, Community Law Partnership (CLP), 12 June 2019).
It seems, though, that the culture of refusal, and especially the reluctance to grant legal aid for appeals, persists. There appears to be an institutional default position to refuse funding in the first instance. There has been a sharp fall in the number of housing cases reaching the higher courts since the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which has adversely impacted on countless applicants and stunted the development of housing law. It is also likely to have led to the reduction in the number of organisations that still do this work.
Our experience suggests that there may be a number of cases that are not reaching the higher courts due to the LAA’s unwillingness to grant legal aid to pursue them. In justifying this, the LAA often simply adopts the judge’s position, which is illogical and irrational when funding is sought to appeal that decision. There is a lack of engagement with arguments put forward in support of applications for legal aid to go to the higher courts and we have had to resort to threats of judicial review before it has been granted. No weight appears to be given to the views of experienced practitioners with a complete lack of trust in us that is hard to fathom; at CLP, we have worked for 22 years in legal aid and have won more than we have lost. We could help more clients if we did not have to spend time and resources challenging poor decision-making. There is no sense of partnership working. We are not valued, nor is our work, and nor, most importantly, are our clients.
The LAA does not seem to have the legal expertise it had at the start of our careers. It appears to have little regard for the legal profession and disregards the views of specialist counsel. Appeals are allocated to non-specialist IFAs. The relationship between the LAA and practitioners is at a very low ebb. The contempt in which we are held was confirmed by the complete lack of support provided to legal aid providers in private practice during the pandemic, when possession work disappeared, threatening the existence of firms such as ours.
It is hard enough to make a living when, like us, you only do legal aid work, with no other income streams, without these unnecessary, demoralising and time-consuming struggles with the LAA.

About the author(s)

Description: Mike McIlvaney - author
Mike McIlvaney is a founding partner of the Community Law Partnership.
Description: Rosaleen Kilbane - author
Rosaleen Kilbane is a founding partner of the Community Law Partnership.