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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> S, R (on the application of) v London Borough of Lewisham & Ors [2008] EWHC 1290 (Admin) (15 May 2008) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2008/1290.html Cite as: [2008] EWHC 1290 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		15 May 2008

1. MR JUSTICE DAVIS:

Introduction

2. These proceedings were commenced as long ago as June 2004. By them the claimant, who may be styled S, claimed accommodation and support under the provisions of section 21 and section 24 of the National Assistance Act 1948, as amended ("the 1948 Act"). There were three defendants to those proceedings, the London Borough of Lewisham, the London Borough of Lambeth and the London Borough of Hackney. The reason for that is that those defendants were, between themselves, disputing which one of them was obliged to offer S such accommodation and support. S herself adopted a primary position that the borough which was responsible was the London Borough of Lewisham; but the matter was in issue.
3. In the subsequent period that has elapsed S has, on a change of circumstances and under different statutory provisions, been accommodated by the London Borough of Bromley. Thereafter she has had no reason to continue to be involved in these proceedings save perhaps on the question of costs. Likewise, in circumstances which I will come on to explain, the London Borough of Lambeth has also dropped out of the picture save perhaps in its case also on any outstanding question of costs.
4. The live issue which remains is between the London Borough of Lewisham, on the one hand, and the London Borough of Hackney, on the other hand. In essentials it is as to which of those two boroughs is responsible for paying the costs of accommodating and supporting S in the period before she came to be housed by the London Borough of Bromley.
5. The dispute between these two local authorities raises a point of statutory interpretation. The relevant provision is section 24 (3) of the 1948 Act. The point is perhaps a little difficult to summarise but it comes, in effect, to this. Where an individual who has no fixed abode and is in urgent need of accommodation and support makes an application to a local authority for the provision of such accommodation and support under the provisions of the 1948 Act, is that individual entitled to seek such accommodation and support from that authority by reason simply of physical presence in the area of that authority at the time of the application?

Background Facts

6. The background facts are not now in dispute and can be relatively shortly stated. The claimant S was born on 29 December 1969. She came to the United Kingdom from Jamaica in October 1999 but remained in the United Kingdom following the expiry of her visa (which then made her an unlawful overstayer) in 2000. From some point in 2000 until her imprisonment in May 2003 for a drugs related offence S was residing in the London Borough of Lambeth, together with her son and a half-sister. S was diagnosed as HIV positive shortly after commencing her custodial sentence, for which she receives treatment. S also has and had significant mental health problems.
7. During S's stay in prison - the prison being HMP Holloway - her half-sister and her son moved away from the London Borough of Lambeth to an address in the area of the London Borough of Lewisham, this being in around June 2003. It appears that both, since that date, have been accommodated in the area of or by the London Borough of Lewisham, S's son having been at that time placed in foster care by the borough.
8. An indication was made at that time that S might be deported. In the event in January 2004 she attempted suicide on being notified of that as a possibility. However as I will come to explain, the threat of deportation has been removed for the time being.
9. Upon S's release from prison, which was on 12 May 2004, she went to stay with a friend in Hackney, a lady who may be designated as M. It is plain from the documents that the arrangement was intended to be entirely temporary, the accommodation being small and M having a partner who sometimes was there and several children. S herself slept on the sofa at M's home in Hackney. The documents indicate that M n fact had required S to leave the home no later than 28 May 2004.
10. By this time it appears that S was in receipt of legal advice from solicitors. Those solicitors prepared a letter for S dated 25 May 2004. The letter was addressed to Lewisham Social Services. It enclosed a medical report and a psychiatric report indicating that S was an extremely vulnerable lady and was at a very significant risk of self-harm or even suicide. The letter went on to point out S's connection with Lewisham in that S's sister and her son were both now within the London Borough of Lewisham's area. The letter stressed that S was clearly very unwell and was in a desperate situation and that support under Section 21 of the 1948 Act was urgently sought. A full community care assessment was also requested.
11. This letter was not posted: one can infer on legal advice. Instead S took it with her when she vacated her friend's home in Hackney on 26 May 2004. S travelled by public transport to the London Borough of Lewisham. When there she went to a social services office within Lewisham and, in person, presented the letter. An assessment was commenced that day by the London Borough of Lewisham but that had not been completed that night. In the event, S returned to Hackney where her friend M again proved prepared to accommodate her, at all events for that night.
12. The next morning S returned to Lewisham. At that stage Lewisham refused to assess her further. Lewisham considered that because S had been staying with her friend M in Hackney for the previous 14 days or so after her release from prison, as S had told them, or because S had been living in the London Borough of Lambeth before she had been sent to prison, then in those circumstances the local authority which was responsible for S under the 1948 Act was either the London Borough of Lambeth or the London Borough of Hackney: but at all events not the London Borough of Lewisham.
13. There was then lengthy legal correspondence. S's solicitors were making it clear that they regarded Lewisham as the responsible local authority. But none of the three authorities concerned would at that stage accept responsibility for housing S: although there was no real dispute but that S was in urgent need of and entitled to accommodation and support. In such circumstances S's friend M proved prepared again to continue to allow her to stay temporarily at the flat, she continuing to sleep on the sofa, until proceedings were commenced on 10 June 2004. On 11 June 2004 Mr Justice Mitting made an order requiring the London Borough of Lewisham or one of the other two authorities to support S until further order. In the event, the London Borough of Lewisham did this on a basis without prejudice to its claim that either the London Borough of Lambeth or the London Borough of Hackney was the true responsible authority.
14. The matter in due course came before Mr Justice Collins. He granted permission on 29 July 2004 in these terms:

"I am sorry to have to grant permission since it is clear that one or other of the defendants must be responsible and litigation is not a sensible solution. One should take on the responsibility and some costs sharing arrangement made. If they are adamant that they want to fight, let it not be at the expense of the claimant and to more public funds.

She is still here unlawfully - perhaps removal might be the answer, but that is for the Home Office.

Interim order to continue."

15. Thus it was that the London Borough of Lewisham continued to provide accommodation and support to S on a "without prejudice" basis. The London Borough of Lambeth and the London Borough of Hackney, for their part, would not agree to share in those costs even on an interim basis. All authorities however came to agree that there should be referred to the Secretary of State for Health under the provisions of Section 32 (3) of the 1948 Act the question of where S was ordinarily resident, if anywhere.
16. There was then a great deal of delay. It is not necessary for me for present purposes to go into the reasons for that.
17. The eventual determination of the Secretary of State for Health upon the issue of ordinary residence was given on 26 September 2007. The determination was that S was of no settled residence. The findings in the detailed determination however had the effect that, as was common ground, the London Borough of Lambeth could have no liability with regard to S's accommodation and support. It was from that stage that the London Borough of Lambeth dropped out of the picture.
18. In the meantime, on 31 August 2007 it was notified that S had been granted discretionary leave to remain in the United Kingdom until 2010. Until then she had continued to be accommodated at the London Borough of Lewisham's expense. The notification of this decision altered the situation. Thereafter S successfully made application, under different statutory provisions and on the footing that she was now lawfully in the United Kingdom, to the London Borough of Bromley for housing on the basis that she was a homeless person. It was at that stage, so far as S was concerned, that proceedings became academic against her also, save as to the question of costs.
19. Thus it is that the remaining issue is between the London Borough of Lewisham and the London Borough of Hackney, in particular as to who is liable to pay the costs of accommodating S in the interim. The sum involved is put at £42,336. In addition it seems likely that the determination of that issue may have a bearing on the question of costs of the various parties involved. Those costs are likely to be very substantial.

Statutory Provisions

20. I turn to the relevant provisions of the 1948 Act. In the relevant respects section 21 provides as follows:

"(1) Subject to and in accordance with the provisions of this Part of this Act, a local authority may with the approval of the Secretary of State, and to such extent as he may direct shall, make arrangements for providing -

(a) residential accommodation for persons aged 18 or over who by reason of age, illness, disability or any other circumstances are in need of care and attention not otherwise available to them; and

(aa) residential accommodation to expectant and nursing mothers who are in need of care and attention which is not otherwise available to them."

Passing to sub-section (1A), it reads:

"(1A) A person to whom Section 115 of the Immigration and Asylum Act 1999 (exclusion from benefits) applies may not be provided with residential accommodation under sub-section (1) (a) if his need for care and attention has arisen solely -

(a) because he is destitute; or

(b) because of the physical effects, or anticipated physical effects, of his being destitute."

I should add that it was common ground that, by reason of the mental and physical condition of S, she was not someone who could be described as needing care and attention solely because she was destitute.

21. Passing to section 24, which is the key section for the purposes of these proceedings, that provides in the relevant respects as follows:

"(1) The local authority empowered under this Part of this Act to provide residential accommodation for any person shall subject to the following provisions of this Part of this Act be the authority in whose area the person is ordinarily resident.

.....

(3) Where a person in the area of a local authority -

(a) is a person with no settled residence, or

(b) not being ordinarily resident in the area of the local authority, is in urgent need of residential accommodation under this Part of this Act,

the authority shall have the like power to provide residential accommodation for him as if he were ordinarily resident in their area.

.....

(5) Where a person is provided with residential accommodation under this Part of this Act, he shall be deemed for the purposes of this Act to continue to be ordinarily resident in the area in which he was ordinarily resident immediately before the residential accommodation was provided for him."

I need not read more of that section.

22. I was referred also to the provisions of section 29 which relates to welfare arrangements for the blind, deaf, dumb and crippled persons and so on. But it is common ground that the wording of that section is significantly different from the wording contained in section 24 even though that section has some analogy in its approach with section 21.
23. I should also refer to section 32. Section 32 (1) provides:

"(1) Any expenditure which apart from this section falls to be borne by a local authority to pay for provision under this Part of this Act for accommodation for a person ordinarily resident in the area of another local authority ..... shall be recoverable from the said other local authority and in this sub-section any reference to another local authority includes a reference to a local authority in Scotland.

.....

(3) Any question arising under this Part of the Act as to the ordinary residence of a person shall be determined by the Minister."

24. It is clear from the provisions of Section 24 (3) that two categories of person are embraced by that sub-section. The position is supplemented by approvals and directions given by the Secretary of State, as empowered to do by section 21 of the 1948 Act. Those approvals and directions were released as Circular No LAC (93) 10 in March 1993. They are expressed to be made under the provisions of Section 21 (1) of the 1948 Act. For present purposes the relevant part is paragraph 2 of Appendix 1 of Circular No LAC (93) 10. That provides in the relevant respects as follows:

"The Secretary of State hereby -

(a) approves the making by local authorities of arrangements under Section 21 (1) (a) of the Act in relation to persons with no settled residence and, to such extent as the authority may consider desirable, in relation to persons who are ordinarily resident in the area of another local authority, with the consent of that other authority; and

(b) directs local authorities to make arrangements under Section 21 (1) (a) of the Act in relation to persons who are ordinarily resident in their area and other persons who are in urgent need thereof,

to provide residential accommodation to persons aged 18 or over who by reason of age, illness, disability or any other circumstances are in need of care and attention not otherwise available to them."

25. Thus it will be noticed that by sub-paragraph (b) of paragraph 2 there is a direction, so far as local authorities are concerned, with regard to persons satisfying the relevant criteria who are in urgent need of the necessary support.
26. Also in March 1993 the Department of Health issued guidance in Circular No LAC (93) 7. That is titled "Ordinary Residence". In the second paragraph of the opening summary of that Circular it is stated:

"The purpose of the Circular is to clarify where possible where responsibility lies between social services authorities, so that the scope for disputes is reduced. Authorities should note in particular that the provision of services for individuals requiring social services should not be delayed because of uncertainty about which authority is responsible, and that when an individual does not appear to have any settled residence, it is the responsibility of the authority of the moment to provide any residential care required to meet their needs. The Circular also sets out in Part II the procedure for referring to the Secretary of State for determination any disputes that cannot be resolved between the local authorities concerned."

27. In paragraphs 3 and 4 of Part I of that Circular this is stated:

"3 If a person comes within the terms of Section 24 (3) it is the responsibility of the local authority of the moment to make a care assessment if it appears to the authority that he may be in need of services. For example an urgent need might arise in the case of someone ordinarily resident elsewhere who is visiting or on holiday. The local authority where the person is ordinarily resident can arrange for the assessment and the provision of services to be carried out on its behalf by the local authority of the moment. A person who arrives in a local authority's area from abroad (including for example a person returning to this country after a period when they have been resident abroad and who had given up their previous home here) who appears to the authority to be in need of social services assistance may come within the terms of Section 24 (3). If the person does not come with[in] the terms of Section 24 (3) then it is the local authority where [he] has his settled residence that should carry out the care assessment. If there is a dispute about the ordinary residence of a person in need of services it should be debated after the care assessment and any provision of service.

4 Section 32 (3) of the NA Act gives the Secretary of State the responsibility to determine disputes about ordinary residence where such disputes arise between local authorities and the authorities concerned cannot resolve the issue themselves. A determination by the Secretary of State should only be sought as a last resort, and local authorities are expected normally to resolve disputes themselves. Further information about referrals to the Secretary of State for decision is in Part II."

28. In paragraph 16 of that Circular this is stated:

"16 The test of 'ordinary residence' is not the same as that of 'local connection' used in the homelessness legislation for establishing which housing authority has the responsibility for securing accommodation for homeless applicants in priority need. When a person states that he has no settled residence or describes himself as NFA (no fixed abode) the social services authority where he presents himself should normally accept responsibility. For a person in urgent need, the social services authority of the moment cannot argue that the possible existence of a 'local connection' elsewhere excuses it from the duty to assess and provide any necessary social services; decisions on where the responsibility for the funding of such services rests, based on ordinary residence, should be decided subsequently. Rules for determining responsibility under Housing Acts should not be used to identify ordinary residence for social services purposes. Any outstanding ordinary residence questions should be clearly recorded in social services records at the time they arise. Failure to do this may prejudice subsequent consideration."

29. It was common ground before me that the relevant date for assessing S's application was 26 May 2004, which was the day when she presented herself at the London Borough of Lewisham's offices.

Submissions

30. It was the submission of Mr Matthias QC, on behalf of the London Borough of Lewisham, that it was not enough that S was physically present in Lewisham when she handed in her application letter to Lewisham social services. S had not lived or stayed in Lewisham at any stage before presenting herself on 26 May. It was clear that she had travelled from Hackney to Lewisham on that day - and doubtless having regard to her legal advice - precisely so that she could hand in her letter of application to Lewisham and seek support and accommodation from Lewisham. That, he submitted, was not enough to bring her within the ambit of the phrase "a person in the area of" as used in Section 24 (3) of the 1948 Act properly understood.
31. Mr Matthias supported his argument by a number of points. He relied on the determination of the Secretary of State for Health in the decision of 26 September 2007. That, it may be recorded, was a most thorough and detailed determination, setting out the statutory background and fully assessing the facts before reaching a conclusion - accepted by all concerned as a proper conclusion - that at the relevant date, 26 May 2004, S was of no settled residence. However at the very end of this detailed determination the official deciding the matter on behalf of the Secretary of State said this:

"Having determined that Ms S was of no settled residence on the relevant date, it is not for the Secretary of State to determine which local authority is responsible for providing services pursuant to that provision. However noting that Ms S was residing in Hackney on 26 May 2004 (the date she presented to Lewisham) and the 14 days or so preceding this, I would draw the parties' attention to the case of Mohammed where the court gave a clear interpretation of what is meant by 'in the area of a local authority' under Section 24 (5) [meaning, I think, Section 24 (3)] of the 1948 Act. I note in particular Stanley Burnton J's remarks that a person claiming Part III services should not be able to 'choose which local authority he is to make liable and possibly in whose area he will live'."

This remark may have given some momentum to the London Borough of Lewisham in what it was already arguing.

32. Mr Matthias took me carefully through Mohammed N [2003] EWHC 3419 Admin, which was the case referred to in the Secretary of State's determination. Mohammed N was a decision of Mr Justice Stanley Burnton given on 6 November 2003. It was an extempore judgment on an application for permission to apply for judicial review and for continuation of interim relief.
33. The factual background, shortly put, was that Mr and Mrs MN had previously in 2001 been accommodated in Redbridge and had had regular contact with community services there. However at some later stage they moved to Newham and by August 2003 they had moved again to accommodation in Camden. Shortly after that or at around that time a proposal was made to disperse them. On 1 October 2003 Mr and Mrs MN's solicitors wrote to Redbridge requesting a community assessment. The question was whether under section 21 and section 24 of the 1948 Act Redbridge was the local authority required to provide such assessment and the requested accommodation and support. Mr Justice Stanley Burnton decided that they were not. Mr and Mrs MN were not, on 1 October 2003, as he found on the facts, ordinarily resident in Redbridge.
34. What Mr Justice Stanley Burnton said in his judgment on this point was this:

"40 ..... In my judgment, it is clear beyond argument that the claimant and his wife were not 'ordinarily resident' in Redbridge at the beginning of October 2003. They did not live there; they had no home there; their only hope of returning to live there depended on the acceptance of Redbridge of an obligation to provide accommodation within its area, or provision of accommodation in their area by NASS. It is true they had previously lived there. I doubt whether they were 'ordinarily resident' in Redbridge at any time however. The words 'ordinarily resident' in Section 24 must have the same meaning as 'settled residence' in Section 24 (3) (a). Paragraphs (a) and (b) of that sub-section are clearly alternatives. A person of unsettled immigration status, whose residence is dependent on the allocation of accommodation by NASS, may well not be ordinarily resident anywhere. That is a conclusion which is consonant with the provisions of Section 24 (5). But in any event, as of 1 October 2003, it would have been perverse to have described the claimant and his wife as having a settled residence in Redbridge. Furthermore they were not persons 'in the area' of Redbridge. It is not suggested that sub-section (4) of Section 24 applies in the present circumstances. Accordingly Redbridge were not under a duty to provide accommodation under Section 21 and Section 24."

35. Given the background facts as recounted by Mr Justice Stanley Burnton, there could be no possible dispute as to his conclusion. Moreover on any view of the facts Mr and Mrs MN could not be said to be in the area of Redbridge at the relevant date. Not only were they not staying there, even temporarily, at the time (on the contrary they were in Camden), but they also had not even presented themselves physically. What they had done was simply to write a letter from Camden to Redbridge.
36. Mr Matthias however placed particular reliance on paragraph 41 of Mr Justice Stanley Burnton's judgment which he says justified the comment made on behalf of the Secretary of State in the determination of 26 September 2007:

"41 This is a conclusion which I reach without regret, despite the claimant's strong community ties to the area of Redbridge. The practical effect of the claimant's submissions, as has been seen in this case, is to enable an applicant in arguable need for residential accommodation under Part III of the 1948 Act to choose which local authority he is to make liable, and possibly in whose area he will live. In asylum cases, applications for residential accommodation under the 1948 Act are often made in order to avoid dispersal by NASS, as Camden has pointed out. In many cases, and this may be one, the objection to dispersal is meritorious. In the present case, there is no suggestion that it was unreasonable for the claimant to be accommodated in Camden, where he was living at the relevant time. It would be curious if an applicant in urgent need can choose any local authority from which to obtain accommodation, whether or not he has a connection with it. The requirement of presence may well be important to local authorities who are already under pressure on their stock of accommodation."

37. I should also refer briefly to paragraph 45 of the judgment because there Mr Justice Stanley Burnton, after referring to a passage in the decision of Mr Justice Laws in R v Royal County of Berkshire ex p P [1996] EWHC Admin 25, said:

"While there is room for argument in many cases as to where a person is ordinarily resident, it seems to me that it is unlikely that there would be argument in many, if any, cases as to the local authority in whose area a person is within the meaning of Section 24 (3). It is difficult therefore to see that a person in urgent need of accommodation would be left without an authority to which he could turn."

38. Basing himself in particular on the passage set out in paragraph 41 of that judgment, Mr Matthias said that it was not acceptable for a person to make a particular local authority liable for providing support and accommodation under the 1948 Act simply by adopting the expedient of physically presenting himself at a social services or community care office within the area of the local authority of that person's choice. That would give rise, in his words, "to an open season for cherry pickers". He submitted that if that were so, solicitors' advice, if sought, would start with the question "In the area of which local authority would you like to be?" He submitted that if a person could not achieve such a result by writing a letter from the area of a different local authority to the authority of choice - as MN itself indicates and as Mr Cowen, on behalf of the London Borough of Hackney, accepted could not be achieved - then no more could such a result be achieved by simply travelling to the area of the authority of choice to make the application in person.
39. Mr Matthias said that in order to avoid such a mischief applicants should be required to make that application to the authority in whose area they were at the time the need for support and accommodation arose.
40. For his part Mr Cowen, on behalf of the London Borough of Hackney, submitted that the words "a person in the area of" as used in Section 24 (3) should not be glossed. He submitted that when S made her application to Lewisham on 26 May 2004 - agreed to be the relevant date - she was indeed "a person in the area of" Lewisham because she was physically present at that time, making the application. That also, he says, accords with the last sentence of paragraph 41 of the judgment of Mr Justice Stanley Burnton in Mohammed N.
41. Such interpretation and approach is not only, he submitted, clear, it is also one that gives rise to desirable certainty: in that any local authority would know what its potential obligations were and unedifying squabbles between local authorities, each seeking to deny responsibility and perhaps having the consequence of a highly vulnerable person being left in limbo (as indeed illustrated by this particular case) are avoided. He acknowledged that possibly that could sometimes give rise to what some people might view as hard cases, looking at it from the view of a local authority. He agreed that that could give a well advised applicant a choice in some cases. But he said that was an acceptable price to pay given that the underlying premise is that the applicant is in urgent need of accommodation and support. He also observed that over time it can pragmatically be said that things could even themselves out. For example, in this case it was a case where S had removed from Hackney to Lewisham to make the application. In another case it could be that the individual in question removes from Lewisham to Hackney to make the application.
42. Mr Cowen also - and understandably - emphasised paragraphs 3 and 16 of LAC (93) 7 which clearly, he submitted, give guidance to local authorities on the footing that a person with no fixed abode who presents himself to an authority ("the authrotiy of the moment") is to be assessed by the authority to which that individual has presented himself and not by some other authority.
43. Mr Cowen accepted that the Circular cannot guide, let alone alter, the interpretation of the primary statute or impose a duty which is not imposed by the 1948 Act itself. He said however that the Circular correctly understands section 24 (3) in this respect and the guidance given is entirely consistent with the correct meaning of that sub-section.

Disposition

44. I decidedly prefer Mr Cowen's submission which, in my view, accords both with the actual and literal wording of section 24 (3) and also achieves a sensible and practical result.

The application of section 21 and section 24, taken together with LAC (93) 10, is premised on the basis that applicants are assessed as potentially in urgent need of accommodation or support. In the present case, for example, it has not been disputed that S was properly so to be assessed. Yet she only achieved the accommodation to which she was entitled after a lapse of several days - and even then only because a court order was made - just because local authorities were disputing responsibility. That, in my view, is a mischief which Parliament can reasonably be taken to have wanted to avoid; and also, in my view, accords with the ordinary and literal wording of the words "a person in the area of".

45. LAC (93) 7 wholly understandably reflects that.
46. Although Mr Matthias sought to interpret LAC (93) 7 to the contrary, he dwelling closely for example on the words "may" and "normally" and so on, it is clear that that is what those paragraphs of the Circular, and the use in the Circular of the phrase "authority of the moment", are designed to achieve. Moreover that consideration, in my view, comfortably outweighs the cherry picking point strenuously advanced by Mr Matthias. In a sense indeed an applicant will always be choosing. For example, when S came out of HMP Holloway she had to choose where to go. Had she chosen to go straightaway to Lewisham any subsequent application under section 21 and section 24 would have been properly made to Lewisham. In the event, she chose to go to Hackney simply because a friend - M - who was prepared temporarily to accept her and let her sleep on the sofa happened to live in Hackney.
47. Mr Matthias's argument seemed to assume that as a matter of merits Hackney should be liable for the subsequent Section 21 and section 24 application. But that would be pure happenstance. Hackney could say that on that approach Hackney would have become liable because of the happenstance that the friend M who offered the accommodation happened to live in Hackney and happened to be the choice of S as the friend to whom was made the request to stay.
48. Yet further Mr Matthias's approach seems to me to give rise to a real uncertainty. On Mr Cowen's approach the words "a person in the area of" are to be read simply as connoting, on a scilicet basis, a person "being" or "who is" in the area of the authority. That is a natural and grammatical way to read the words "a person in the area of". It is clear. It is certain. It therefore connotes a person being otherwise of no settled residence present in the area of the local authority at the time of the application. Yet the words Mr Matthias would seek to read in on a scilicet basis are by no means so clear. Some degree of residence was needed, he said, to be a person "in the area of a local authority".
49. What degree of residence? At one stage he said that the statutory understanding was that an applicant had to be a person who is "based" in the area of the local authority concerned. At another stage he said the words to be read in were "who is staying ". At another stage again he said the words to be read in were "who is temporarily residing". In reply, he eventually said that the words "a person in the area of" connotes a person who is "staying temporarily" or "staying albeit temporarily". This is, with respect, utterly unclear. How can this be assessed by a local authority? What degree of residence or stay is needed? What constitutes being "based" or "temporarily staying"? Where is the line to be drawn? How long or how short a period of stay is needed to qualify? Is staying at the home of a friend for a night or two to be equated with sleeping on a park bench for a night or two?
50. In argument I put to Mr Matthias the following example, not too far removed from the circumstances of the present case. A person comes out of prison; he has no settled residence; he goes to stay with a friend in the London Borough of X for four weeks; he goes to stay with another friend prepared to have him in the London Borough of Y for one week; he goes to stay with another friend in the London Borough of Z for one day. After that he applies to the London Borough of Z under section 21. Mr Matthias had some difficulty on this scenario in identifying, on his argument, which local authority would have the ultimate responsibility under section 21 and section 24. I do not think it unreasonable to think that if Mr Matthias had that difficulty then an official at a local authority dealing with an urgent application might likewise have difficulty.
51. My unease on this point was increased when Mr Matthias at one stage stated in the course of argument that had S only stayed for one night on a park bench in Lewisham before applying she would have been entitled to be assessed there under section 24 if she had applied the following day. It seems to me most surprising that a one-night stay on a park bench can, on his own argument, make so great a difference. In any case, if Mr Matthias's other arguments are right, a local authority might not itself take that view. Mr Matthias also at one stage relied on the fact that not only had S stayed with her friend M in Hackney for 14 days before presenting herself in Lewisham, she then went back there on the night of 26 May and then, when the London Borough of Lewisham continued to refuse to offer support, was permitted to stay by the friend M for several days more before the court intervened. But that can be of no real relevance in circumstances where Mr Matthias also both asserted and conceded that his argument would have been the same had the friend M in Hackney closed her door on S once and for all on the morning of 26 May 2004 before S departed for Lewisham.
52. In my view, the cherry picking argument cannot displace what to me are the clear words and meaning of Section 24 (3), a meaning which also gives rise to certainty in its outcome.
53. The case is different from Mohammed N. Self-evidently Mr and Mrs MN could not be persons "in the area of" Redbridge when they simply were not there. Rather they had written a letter to their solicitors from Camden which is where they were. No doubt for that reason LAC (93) 7 was not even mentioned in Mohammed N. Moreover one advantage of actual presence - as Mr Justice Stanley Burnton was perhaps contemplating, as indicated by the last sentence of paragraph 41 of his judgment - can be taken to be that actual presence enables the local authority where the person is presenting himself properly to make an assessment of that applicant. This interpretation, moreover, is not to make the words "in the area of" otiose, as Mr Matthias suggested. On the contrary, those words are necessarily there to identify the local authority which is to have the liability to provide accommodation and support.
54. As may be gathered, I do not share the apparent sense of outrage which the London Borough of Lewisham seems to hold at someone such as S being able to claim support from it by the expedient of travelling to Lewisham in person in order to present herself in person. As I have said, S was only in the London Borough of Hackney through happenstance, the happenstance being that her friend M was prepared to offer temporary accommodation and the friend happened to live in Hackney. On the information known to me S had no other connection with Hackney at all. But S had real reason to wish to be supported by and live in Lewisham. Her son was there. Her sister was there. Given that this was, as agreed, a highly vulnerable woman shown to be in urgent need of support, I see no reason at all to be outraged by a conclusion whereby she gets support from a local authority in an area where she has most reason to want to be. I appreciate and accept that connection or community ties alone are not the test here. But once S is, as in my view she is, established as being a person "in the area of" the local authority, there is no reason to be dissatisfied with an outcome that that authority where S does have a real connection is the one that has responsibility under section 21 and section 24.
55. It might be said that that ought to be so for persons such as Mr and Mrs MN who themselves had strong ties with the London Borough of Redbridge. The simple reason why that is not so is that, whatever the community ties may be, a person cannot become "a person in the area of" a particular local authority simply by writing a letter from another area where that person is.
56. That does not come within the words of the statute. Furthermore such a conclusion avoids the degrading result of a vulnerable person such as S being required to travel away from where she had sought support and accommodation to an uncertain reception in Hackney or elsewhere. As Mr Cowen pointed out, in some cases, if the London Borough of Lewisham's arguments be right, the travel distances could be much greater and reception at the other end entirely unknown and uncertain. It is very undesirable that potentially vulnerable persons be exposed to such a risk. Parliament can be taken not to have desired such a result.
57. I therefore conclude that the responsible authority here was the London Borough of Lewisham. Such a decision accords, in my view, with the wording of section 24 (3). Furthermore such conclusion gives rise to desirable certainty. It also follows that I consider that LAC (93) 7 proceeds on a correct understanding of the meaning and intent of the 1948 Act and its guidance therefore does not depart from the 1948 Act but is, on the contrary, as I see it, guidance which can properly be and ordinarily should be followed by local authorities. The comment perhaps suggesting a different result in the concluding remarks of the determination of the Secretary of State was, in my view, with all respect, based on an incorrect appreciation of the statutory provisions and of the ambit of the decision in Mohammed N.
58. I also add that this interpretation seems to me to be consistent with cases falling within (b) of Section 24 (3). Clearly a local authority cannot avoid its obligations in a case falling within that sub-sub-section by asserting that the applicant is ordinarily resident elsewhere: just because that sub-sub-section covers precisely that scenario. But if an applicant is ordinarily resident elsewhere and is in urgent need of residential accommodation under the Act from another local authority, again it is very difficult to see any rationale for glossing the words "a person in the area of": which words apply to sub-sub-section (b) as much as to sub-sub-section (a). Indeed to do so could undermine the operation of section 24 (3) (b). Why in such a case should "something more than presence" or "some degree of residence" be needed to bring a such an applicant within the provisions?
59. Likewise, where there is a dispute as to ordinary residence pending resolution under Section 32, the authority in whose area the person is when applying for urgent accommodation is statutorily empowered to provide accommodation in the meantime pending resolution of the dispute. Again LAC (93) 7 seems to me to give entirely proper guidance on this.

Conclusion

60. There therefore will be judgment in favour of the London Borough of Hackney on the issue argued before me. The consequential issue of costs, including the costs of S and of the London Borough of Lambeth, will need further consideration.
61. I add that I do not think that this decision is likely to open any floodgates, as Mr Matthias suggested. Mr Justice Stanley Burnton does not seem to have thought so judging by his comments in Mohammed N. It also must be remembered that under section 21 and section 24, read with LAC (93) 10, support is legally required to be provided only in cases of established urgent need. If that is not the position then the entire obligation falls away. I also think that I can take it that local authorities have thus far been for the most part applying LAC (93) 7 without undue fuss. Besides they may well reckon that things do even themselves out over the passing of time. In many cases, too, applicants under section 21 and section 24 may choose to make their application in the area where they had already been staying. At all events the very fact that this issue has not, according to the researches of counsel, surfaced before in the courts - aside from the decision in Mohammed N in 2003 - before this instant case came before me suggests that the understanding of section 24 (which in my view is the correct understanding) as reflected in LAC (93) 7 is one which is capable of being satisfactorily implemented by local authorities without unacceptable consequences for them.
62. MR COWEN: We have given consideration to the issue of costs. As I think was intimated, the sums are regrettably potentially very large. Certainly it would not be right - and I think it is Mr Matthias's view it would not be right - to deal with it, assuming agreement cannot be reached and I hope agreement can be reached, on written submissions. If agreement cannot be reached that is perhaps all the more reason why there would need to be a hearing. I would propose, first, we would like a transcript of the judgment.
63. MR JUSTICE DAVIS: What about costs as between yourself and Mr Matthias? You have won.
64. MR COWEN: Costs as between myself and Mr Matthias I would ask for in any event. The issue that arises is the costs of the entire proceedings. I would say I am entitled to my costs as between myself and Mr Matthias. That leaves the question as to what that means. We would say it is our entire costs of and occasioned by the proceedings.
65. MR JUSTICE DAVIS: Some aspects of that can be left to the costs judge. I suppose you also have the costs position of S and London Borough of Lambeth to think about. I cannot make a decision in their absence.
66. MR COWEN: That is right. I am sure they would be happy for a decision in their absence if the decision was they are also entitled to costs of an occasioned by the proceedings.
67. MR JUSTICE DAVIS: For all I know Mr Matthias might say they should not have them or at least not have all of them.
68. MR COWEN: Yes.
69. MR JUSTICE DAVIS: What do you say about costs, Mr Matthias?
70. MR MATTHIAS: What has been said as between the parties - and both claimant and Lambeth have been told or assured - that an application for costs will not proceed today and that they will have an opportunity to be heard on costs. What I would propose is that you give the parties time to see if they cannot agree in terms of costs.
71. MR JUSTICE DAVIS: I think that that is right. I will say nothing in those circumstances about costs even as between the two of you. I would rather do it in one go.
72. MR MATTHIAS: Would you approve us restoring the matter?
73. MR JUSTICE DAVIS: I would hope that the parties can agree the question of costs. If the parties cannot, I would want written submissions identifying what the issues are between you on the question of costs and what the submissions are. I do not want a great tome from anyone. My present instinct is that I might resolve it on the papers. If the parties want an oral hearing, they can have an oral hearing.
74. MR MATTHIAS: Shall we say if within 28 days the parties have not resolved issues of costs, then written submissions to be forwarded?
75. MR JUSTICE DAVIS: I will say in the event that parties cannot agree the question of costs, written submissions to be with me within 35 days of today.
76. MR MATTHIAS: Then the parties can indicate whether they would - - - - -
77. MR JUSTICE DAVIS: In lodging those submissions the parties can indicate whether they are content for me to decide the issues of costs on the papers or whether they want an oral hearing, and I will consider whether an oral hearing is necessary.
78. I should warn you that I will not be back in the Royal Courts of Justice as of the end of this month until the end of October.
79. MR MATTHIAS: Thank you for a long and careful judgment. I am instructed to ask if we may have permission to appeal. Lewisham, as you know, do take the view that it is an important matter of public importance not just to them but to all authorities.
80. MR JUSTICE DAVIS: If you are right and LAC (93) 7 has been completely re-written, yes. What do you say about permission to appeal?
81. MR COWEN: I would oppose the application. In my submission your Lordship has given a very comprehensive judgment on supporting the guidance.
82. MR JUSTICE DAVIS: Mr Matthias is probably too polite to say so, but would say I am comprehensively wrong.
83. MR COWEN: In my submission, his case was clearly flawed and there are no reasonable prospects in relation to the appeal. It is just more public funds unnecessarily so.
84. MR JUSTICE DAVIS: I do not think I am going to grant permission to appeal in this case, Mr Matthias. I think the Act is clear, and also the result is what the LAC has told the world at large for many years.
85. I will not grant permission to appeal.