What’s new? Court of Appeal considers ‘new facts’ in repeat homelessness applications
In R (Ivory) v Welwyn Hatfield BC [2025] EWCA Civ 21 the Court of Appeal considered whether a local housing authority was justified in rejecting a fresh homelessness application from an applicant whom it had previously found to be intentionally homeless, in circumstances where the fresh application was accompanied by a novel medical report.
The lead case on fresh homelessness applications remains R v Harrow LBC ex p Fahia [1998] 1 WLR 1396 (“Fahia”) where the House of Lords rejected the argument that a homeless applicant must demonstrate a “material change of circumstances” in order for a fresh application to be accepted. Their Lordships held at 1402 that unless the new application is based on “exactly the same facts” (in which case there will be “no application”), it must be accepted. In Rikha Begum v Tower Hamlets LBC [2005] 1 WLR 2103 (“Rikha Begum”), the Court of Appeal clarified that an authority may not investigate the accuracy of facts alleged in a fresh application before determining whether to accept it. It must simply compare the two applications. Only where purported new facts are “to the authority’s knowledge, and without further investigation, not new, fanciful, or trivial” will the authority be entitled to reject the fresh application: §§59-61.
In the present case, the applicant was evicted from her last settled accommodation in 2016 as a result of rent arrears. She applied to the authority for homelessness assistance and was found to be intentionally homeless. She asserted that she had had a mental breakdown at the material time, which had left her unable to manage her tenancy, so that her arrears were not a “deliberate act” within the meaning of section 191 of the Housing Act 1996.
In support of her assertion, she provided the authority with letters from her GP and other health professionals, dated some five years or more after the relevant period, but nothing contemporary. The authority concluded that the applicant was intentionally homeless, not being satisfied that the material provided evidenced of a mental breakdown in late 2015/early 2016. The County Court dismissed the applicant’s subsequent appeal under section 204 of the 1996 Act in August 2023.
In September 2023, the applicant made a fresh application for homelessness assistance supported by an expert report from a consultant psychiatrist, dated 26 April 2023. That report had been commissioned as part of the appeal to the County Court but had not previously been disclosed. The authority rejected the fresh application as being “based on exactly the same facts as the earlier application.” The applicant sought permission to proceed by way of judicial review, and the claim was ultimately heard in the Court of Appeal, as a court of first instance.
The issues for the Court were:
- Whether the fresh application, supported by the novel report, was based on the same facts as the previous application.
- Whether the authority had conducted impermissible inquiries prior to rejecting the fresh application.
- Whether, if the fresh application was supported by new facts, the authority was entitled to reject it by reason of the applicant’s conduct, in failing to disclose the report during the appeal to the County Court and/or whether the Court should refuse relief on the same basis.
In allowing the claim, the Court of Appeal held that:
- The fresh application was supported by “new facts”, and the authority had been required to accept it and move on to conduct statutory inquiries under section 184 of the 1996 Act: §§51-52, 107, 109.
- The reviewing officer had conducted impermissible non-statutory inquiries into the circumstances surrounding the production of the report before making a decision on whether to accept the fresh application; he should have considered only what was apparent on the face of the application and accompanying report: §55-57.
- Although there might be circumstances in which an authority would be entitled to reject a fresh application due to the applicant’s abusive conduct, and the Court might otherwise refuse relief in such cases, there was no abuse on the facts of the present case: §§59, 108.
Although Newey LJ gave the lead judgment, he was in the minority in respect of the comparative exercise that fell to be conducted in order to ascertain whether the fresh application was supported by new facts.
- Newey LJ considered that the correct comparison was between the facts alleged in the fresh application with the facts as found by the authority on the previous application, subject to the caveat that if a subsequent application simply repeats earlier rejected allegations with no new evidence in support, the authority may conclude that the facts alleged on the fresh application are “fanciful” and therefore fall within the qualification to the ‘new facts’ test identified by the Court in Rikha Begum: §§43(ii), 48.
- Males LJ considered that the proper comparison was between the facts alleged in the new application and accompanying documents and the facts alleged in the earlier application and accompanying documents; otherwise mere repetition of any assertion rejected by the authority on the previous occasion could form the basis for a fresh application that the authority was bound to accept: §§64, 67.
- Phillips LJ agreed with Males LJ, but tried to unite these two approaches, holding that: “a further application must be accepted if it is either (i) based on a factual assertion which has not previously been made and which is not trivial or fanciful; or (ii) adduces significant fresh evidence in support of previously made factual assertion, whether or not rejected”: §§110-111
What, then, are the lessons which local authorities can take from this case?
The first is this: in most cases, the safest approach for any authority faced with an application which is not patently identical to an earlier application will be to accept it. If the facts revealed are very similar to those which founded an earlier application, it may be that the statutory inquiries which fall to be conducted can be very brief and the application speedily determined, as recognised by the Court of Appeal in Minott v Cambridge City Council [2022] EWCA Civ 159 (“Minott”): §86. Declining to accept an application which is not identical to a previous application, however, carries with it an extremely high risk of successful challenge.
There remains the possibility that an application founded on facts which are new but obviously trivial or fanciful (on their face and without further inquiries) can be rejected. Future cases may well go on to test the limits of the application of these terms. However, the hypothetical examples provided in Minott — of an application simply having been made on a different day of the week as a trivial fact (§40) and an applicant’s home having been destroyed by a meteorite as a fanciful one (§75) — suggest that these exceptions to the general rule in Fahia will apply only in the rarest of circumstances.
There also remains the possibility that an application can be rejected for abuse. Prior caselaw has suggested that a deliberate drip feeding of evidence might constitute ‘abusive conduct’ (see R (Hoyte) v Southwark London Borough Council [2016] EWHC 1665 (Admin) at §51 and R (Ibrahim) v Westminster City Council [2021] EWHC 2616 (Admin) at §99) but the Lord Justices in the present case declined to give examples of what they considered might rise to meet the threshold of abuse. Again, absent the most clear-cut indication of deliberate abuse of the system, the safest course for authorities will be to accept a fresh application.
Riccardo Calzavara and Lois Lane were instructed by Angela Byrne of Welwyn Hatfield BC.
