“Everyone In”: policy or no policy and the duty to consult/publish

02 Mar 2022

Housing

By Matthew Feldman

1. In R(on the application of ZLL) v Secretary of State for Housing, Communities and Local Government [2022] EWHC 85 (Admin), Fordham J considered the “Everyone In” initiative which was launched in March 2020 to assist local authorities to provide accommodation for all rough sleepers during the Covid-19 pandemic. This case arose in the context of a claim by the claimant, a rough sleeper, who applied for judicial review of the defendant Secretary of State’s decision to end the initiative.

The facts

2. The claimant was a Chinese national who came to the UK in 2002. Due to his visa expiring in 2004, he had no recourse to public funds (‘NRPF’), and had spent many years rough sleeping. At the beginning of the pandemic, he was accommodated in a series of homeless shelters operated by various charities. In April 2021, he approached Camden Council for accommodation relying on the “Everyone In” initiative. Camden Council accepted that it had a discretion to accommodate the claimant but decided not to exercise that discretion in his case, because he was NRPF and not within the “most vulnerable and at risk” group of rough sleepers see para [3].

3. The claimant applied for judicial review of the defendant Secretary of State’s decision to end the “Everyone In” initiative. It was contended on his behalf that the defendant had breached its public law duty by adopting an unpublished position in non-conformity with previously published Government policy, and failing to consult with a major homeless charity, Shelter, in relation to any proposals to curtail or end the initiative.

The decision

4. The claimant’s application was refused, Fordham J concluding that the various phases of Government communications in respect of the “Everyone in” initiative demonstrated ‘an elusiveness, a fluidity and an ambiguity in those communications”; and that in so far as there were question-marks about the clarity and straightforwardness of the Government’s messaging relating to the “Everyone In” initiative, they did not engage the public law “duty of conformity” and “duty of publication”. The resolution of those question-marks belonged to the arena of public opinion, and of political and democratic accountability. Although the claimant could identify fluidity and elusiveness, and examples of uncertainty, he could not establish “prescriptive policy guidance” engaging the public law “duty of conformity, whose modification or discontinuance then engaged the “duty of publication” see para [44].

5. The Judge found that not every government “policy” attracted a “duty of conformity”, and an “entitlement of conformity”, and continued to do so unless and until government had “published” a statement which discontinued or varied the previous policy; but the public law duties of “conformity” and “publication” did not follow whenever there was an “initiative” which was an aspect of government “policy” with practical implications for individuals see para [45].

6. The statements of government “policy” in relation to the “Everyone In” initiative were not, by their very nature, statements of prescriptive policy guidance. They did not purport to set out definitive decision-making criteria for local authorities, still less did they do so on an open-ended basis. The statements of policy were a “call to action” or a “call to arms” see para [46]. Further, the statements of government “policy” in relation to the “Everyone In” initiative arose in the specific context of the pandemic. It was also made clear that there would be “step-down arrangements”, “for the future”, and in the “longer-term” see para [47].

7. The “Everyone In” initiative was not framed as a programme supported by a continuum of designated funding. The exhortations to local authority action, accompanied by specific funding announcements, were not open-ended or indefinite, and the limits as to resources reflected a government “policy” which did not involve a programme of prescriptive policy guidance in the first place see para [48]. Certain elements of the initiative such as an emphasis on individualised assessments, on close regard to the limits of statutory powers, on difficult judgments, and on vulnerable rough-sleepers, all stood as contra-indications to there being enduring all-inclusive decision-making criteria, as external prescriptive policy guidance see para [49].

8. It was not unnatural to describe “move-on accommodation” for those taken off the streets under the “Everyone In” initiative as “continuing” the “work” of “Everyone In”. Views might differ as to whether there was clarity as to what precisely was meant and what “work” was “continuing” and was “ongoing”, but the accountability controls relating to such questions were political see para [50]. A number of features in the published position of Government in the context of “Everyone In” did not square with the logic of a publicly communicated position involving prescriptive policy guidance for all rough sleepers to be accommodated, which had continued to the present see para [51].

9. In relation to the failure to consult with Shelter, it was held that the merits of whether and when to so engage were questions for the defendant to evaluate and decide. There had been no breach of any public law duty to consult Shelter. Although there had been “an established practice of meetings between the defendant and Shelter over a wide range of matters relating to homelessness”, which “intensified in the course of the Covid pandemic”, and Shelter’s policy and public affairs teams had been “in regular communication with the Defendant’s officials from March 2020, at least monthly, sometimes more frequently”, there was no basis for arguing that a “legitimate expectation” of consultation arose from any prior “practice of consultation”; nor did such meetings or communications constitute a “continuous and intense dialogue” capable of triggering a duty of consultation, whether of itself or alongside the other features of the case. Further, it could not be said that the defendant needed to conduct a consultation exercise in order to be in touch with the numbers or profile of those affected see para [55].

Comment

10. It is understood that earlier this month, Fordham J granted permission to appeal to the Court of Appeal. It remains to be seen whether the effect of the pandemic diminishes in the short-term, how the Court of Appeal deal with these difficult issues, and whether it gives further guidance as to the meaning and requirements of “Everyone In”, publication of policy and/or consultation.

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