Monday, February 01, 2016

Heavey v The Greater London Authority: Will the Central London County Court rule that our newly litigated claim may not be pursued through a claim for damages?

Mayor of London Boris Johnson

"Your case seems very winnable."
- a friend in Washington DC

Declan's Opening Statement to the Court on 3 February 2016

I hope to establish at this hearing of the GLA's application to contest the Court's jurisdiction that mine is a newly litigated claim (as opposed to a re-litigated claim), and that as such it can be pursued through a claim for a declaration of unlawfulness and damages. However, to avoid a trial hearing all Counsel for the GLA would have to do here is agree to a review of the Authority's decision regarding my and my wife's tenancy, along with our right of appeal to an independent tribunal, given that the legal framework applying to the decision that has deprived us of a review has not provided us with sufficient procedural protection of our rights, in violation of Article 8 of Human Rights Act 1998. That said, should my application be set aside pursuant to CPR Part 11, I would in light of the finding of an Article 8 ECHR violation in Connors v UK (2004) respectfully request leave to appeal the issue of the Court’s jurisdiction to hear my claim for a declaration (that the legal framework applying to the referral decision that has deprived me of a review has not provided myself and my wife with sufficient procedural protection of our rights) and damages for distress.


Click to enlarge

Over three months ago, the Mayor of London's Greater London Authority (GLA) lodged its application to contest the court's jurisdiction by way of reply to Declan's claim against it in the Central London County Court for terminating our eligibility for our flat without the right of review or appeal. The hearing of GLA's application will take place this Wednesday. The Authority not only falsely accuses us of re-litigating a matter which has already been determined by the High Court in judicial review proceedings (see Background, paragraph 9 below), but they make out that our claim may not be pursued by way of a claim for damages. Really? According to Hickman and Rose Solicitors (see graphic above), a public law issue may be pursued through a claim for damages. This afternoon we received further argument from GLA Principal Solicitor Steve Gee that we cannot seek a mandatory order from any Court other than the High Court (Judicial Review), so Declan's opening statement to the Court on Wednesday forgoes an order for a review with a right of appeal and retains his initial request for a declaration of unlawfulness and damages for distress.

BACKGROUND

1. On 17 May 2014 my wife and I were granted our current tenancy by Family Mosaic Housing Association as clients of the Mayor of London's Greater London Authority (GLA) Housing First programme 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.

2. Housing First is an internationally acclaimed programme for entrenched rough sleepers, 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."

3. On 4 September 2014, less than four months into our tenancy, I received an email from SHP informing me for the first time that GLA Housing First was a pilot scheme culminating on 31 March 2015 and that both my wife and I would be referred to the Mayor’s Clearing House programme (GLA Clearing House), operated for the Mayor by St Mungo’s Broadway.

4. 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).

5. No mention was made in SHP’s email of 4 September 2014 to a possible review of the decision by GLA to refer my wife and me to its Clearing House programme or how I could make a complaint and how such a complaint will be handled.

6. I wrote on numerous occasions to SHP and twice to the GLA protesting my and my wife's referral to GLA Clearing House, but to no avail. Finally, on 18 June 2015, I 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 my claim for judicial review stated: "The GLA, acting reasonably and within its statutory powers, was entitled to choose Clearing House as a replacement for the Housing First pilot."

7. By order dated 12 August 2015, the High Court refused me permission to bring judicial review proceedings on the grounds that my 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 acted unlawfully by referring my wife and me from the Mayor of London’s Housing First programme to the Mayor’s Clearing House programme (the "referral decision"), thereby terminating our eligibility for our flat within one year of the commencement of our tenancy because we are able to live independently.

8. It is evident from SHP's email of 4 September 2014, judicial review pre-action correspondence and the GLA's Grounds of Opposition to my claim for judicial review that I have been repeatedly deprived of my right of review, and that the GLA has not properly considered the impact of its referral decision on my 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 my 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".

9. 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 JR), I 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). Contrary to the GLA's assertions, I have not sought to re-litigate in the County Court what has already been dealt with within judicial review proceedings. In the County Court I have challenged the GLA for depriving me of my 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 my wife and me to GLA Clearing House which was the subject of the judicial review application.

10. In my claim before the County Court I have cited Connors v UK (2004) in saying that the legal framework applying to the referral decision that has deprived me of a review has not provided my wife and me with sufficient procedural protection of our 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.

11. I am pursuing this case through a claim for a declaration of unlawfulness and damages; nonetheless, I think it likely that a County Court judge will dismiss my case on the attached application to contest the Court’s jurisdiction, filed at Court by the GLA on 14 October 2015. I am therefore looking for a solicitor who may be willing to argue the Court's jurisdiction on my behalf up to the Court of Appeal. Alternatively, having been denied permission to appeal by the Court of Appeal, I may be left with no option but to appeal the insufficient procedural protection of our rights to the European Court of Human Rights under Article 8 of the European Convention on Human Rights - the right to a family life - before we are evicted from our home upon the expiry of our tenancy agreement on 17 May 2016.

Declan Heavey
71 Queens Road West
London
E13 0PE

Tel: 0788 043 7681
Email: dheavey@gmail.com

(Emphases added.)

Last December we received from the Court the GLA's application to dispute the Court's jurisdiction, filed at Court on 14 October 2015. The application has not been sealed by the Court - no surprise there (see blog of 16 December 2015, "Central London County Court: Will the Parliamentary Ombudsman have to investigate the Court's failure to send us a copy of the Greater London Authority's application to contest the court's jurisdiction?") - but these are the reasons (save today's mandatory order point) why Mr Gee contends that the Court does not have jurisdiction to hear Declan's claim:

Click to enlarge

Mr Gee gives the clear impression above that the Mayor of London's Housing First programme has finished. If this is the case is then the GLA not lying to the taxpayer? Their website states: "Our Housing First pilot introduced the model to London, and there are now plans to roll this out more widely at a local level" (from the Mayor of London's 2015 "Rough Sleeping Commissioning Framework", page 12). But they are putting us back to the street on a threat to life without the right of review or appeal. Forgoing the reference to an order for a review with a right of appeal, this is Declan's claim for a declaration of unlawfulness and damages that was issued by the Court on 11 September 2015:

Brief details of claim

The Claimant challenges the Defendant for depriving him of his right of review in respect of its decision to refer him and his wife from the Mayor of London's Housing First programme to the Mayor's Clearing House programme (the "referral decision"), thereby terminating their eligibility for their flat because they are able to live independently. On 12 August 2015 the High Court refused the Claimant permission to apply for Judicial Review, principally because his Claim Form was not filed within 3 months after the grounds to make the claim arose on 4 September 2014. It is evident from the email the Claimant received on 4 September 2014, judicial review pre-action correspondence and the Defendant's Grounds of Defence (in particular paragraph 13) that the Claimant has been repeatedly deprived of his right of review, and that the Defendant has not properly considered the impact of the referral decision on his family life. It has not taken into account the Claimant and his wife's needs and vulnerable position as rough sleepers for almost 4 years in total. The Claimant is therefore making an application to the Court for a declaration that the Defendant has acted unlawfully and an order that it 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.

Value

The Claimant expects to recover damages for distress of not more than £1,000.


Particulars of claim (threat to life and wellbeing, paras. 16-17):


Related blog post (14 October 2015): "Mayor of London's Clearing House service withholds financial data against us in defiance of court ruling"

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Update (3 February 2016): Outcome of Preliminary Hearing