England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE CCRTI 98/0333/2

(HIS HONOUR JUDGE PREVITE )

Royal Courts of Justice

Strand

London WC2

Friday 24 July 1998

B e f o r e:

SIR STEPHEN BROWN

(President of the Family Division)

LORD JUSTICE OTTON

LORD JUSTICE MUMMERY

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LAYLA HUSSEIN ALI

Plaintiff/Respondent

- v -

LORD MAYOR AND CITIZENS OF THE CITY OF WESTMINSTER

Defendant/Appellant

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CCRT1 98/0374/2

(HIS HONOUR JUDGE COWELL )

ANDREW ROY NAIRNE

Plaintiff/Respondent

- v -

THE MAYOR AND BURGESSES OF THE LONDON BOROUGH OF CAMDEN

Defendant/Appellant

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(Transcript of the Handed Down Judgment of

Smith Bernal Reporting Limited, 180 Fleet Street,

London EC4A 2HD

Tel: 0171 421 4040

Official Shorthand Writers to the Court)

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MR C H JONES (Instructed by C Wilson, City Solicitor & Secretary, London, SW1E 6QP) appeared on behalf of the Appellant/City of Westminster.

MR M RUSSELL (Instructed by Messrs Moss Beachley & Mullen, London W1H 1HA) appeared on behalf of the Respondent/Ali.

MR B MCGUIRE (Instructed by Ms A Kelly, Borough Solicitor, London Borough of Camden, London, WC1H 9L)) appeared on behalf of the Appellant/London Borough of Camden.

MR T GALLIVAN (Instructed by Messrs Osbornes, London, NW1 7AH) appeared on behalf of the Respondent/Nairne.

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J U D G M E N T

(As approved by the court )

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©Crown Copyright

Friday 24 July 1998

JUDGMENT

LORD JUSTICE OTTON: These two cases raise the question whether the County Court has jurisdiction to grant an interlocutory injunction requiring a local authority to provide accommodation for a person who is proceeding with an appeal under s 204 of the Housing Act 1996 against a review decision made under s 202 of the Act.

Although the appeal is confined to this narrow point of law, it is useful to set the point in its statutory context. Housing Act applications to local authorities consist of up to five stages: the initial application, the inquiries or determination period, the final decision, the internal review of that decision, and finally, an appeal to the County Court. These cases are principally concerned with last two stages. These are new to the Housing Act regime. Under the previous legislation, the Housing Act 1985, challenges to the final decision of the local authority proceeded by way of judicial review.

I start with applications for accommodation, or assistance with accommodation, to a local authority under s 183 of the Act by those claiming to be homeless or to be threatened with homelessness. In such cases, the local authority is under a duty to make the necessary inquiries to satisfy itself as to the applicants’ eligibility for assistance, and if they are, to determine what duty might be owed to them (s 184). The local authority is under a duty to provide interim accommodation while it makes these inquiries if it believes that the applicants for accommodation may be homeless, eligible for assistance and have a priority need for accommodation (s 188). The local authority is under a similar duty to provide interim accommodation to the intentionally homeless in priority need for a reasonable period (s 190), and to applicants whom it intends to refer to another housing authority until the applicants are notified whether or not the conditions for their referral are met (s 200(1)), or while the local authority considers the availability of suitable housing in its area when the conditions for referral are not met (s 200(3)).

In these, and in other cases, section 202 provides for a right to request a review of the local authority’s decision.

Clearly then in some cases, eg under sections 188, 190, and 200, the local authority is under a statutory duty to provide interim accommodation pending a final decision to applicants for housing: Parliament has underlined this duty by the use of the word “shall” in the relevant sections. Parliament has also clearly stated when, and in what circumstances, the duty has come to an end. For example, there is no duty owed to accommodate the applicants while a review under s 202 is being carried out to applicants covered by, inter alia, s 188 (see s 188(3)) or s 200 (s 200(5), although the local authority has a discretion in deciding whether or not to continue to provide accommodation during this period. As section 188(3) and section 200(5) state:

The duty ceases when the authority’s decision is notified to the applicant, even if the applicant requests a review of the decision (see s 202)

(s 188(3))

The duty under subsection (1), (3) or (4) ceases as provided in that subsection even if the applicant requests a review of the decision (see s 202)

(s 200(5))

Both sections conclude:

The authority may continue to secure that accommodation is available for the applicant’s occupation pending a decision on review.

Section 204 then provides that an applicant who is dissatisfied with the outcome of the review, or has not been notified of the review decision within eight weeks of an application for review may appeal to the County Court on any point of law arising from the review decision or the original decision.

Section 204(4) further provides:

Where the authority were under a duty under section 188, 190 or 200 to secure that accommodation is available for the applicant’s occupation, they may continue to secure that accommodation is so available —

(a) during the period for appealing under this section against the authority’s decision, and

(b) if an appeal is brought, until the appeal (and any further appeal) is finally determined.

Nonetheless, might the local authority have this discretionary power overridden by the courts by means of an interim mandatory injunction? In these two cases, the applicants, who had undergone the review procedure and were bringing appeals against that review, asked the County Court for a mandatory interim injunction requiring the local authority to provide them with accommodation until the resolution of their appeals. The injunctions were duly granted. This Court is now asked to decide whether the County Court had jurisdiction to do so.

The County Court does not have an inherent jurisdiction to grant injunctions. It is a creature of statute and any such jurisdiction contended for must come from statute. The Housing Act 1996 does not confer any general jurisdiction on the County Court to grant injunctions, nor is there any specific jurisdiction to grant an interim mandatory injunction requiring a local authority to accommodate an applicant pending an appeal under s 204, after a review under s 202. Any jurisdiction, if it exists, must be located in s 38 of the County Courts Act 1984. Insofar as is relevant, it states:

(1) Subject to what follows, in any proceedings in a county court, the court may make any order which could be made in the High Court if the proceedings were in the High Court.

(2) Any order made by a county court may be —

(a) absolute or conditional

(b) final or interlocutory

(3) A county court shall not have power —

(a) to order mandamus, certiorari or prohibition; or

(b) to make any orders of a prescribed kind.

....

Section 37 of the Supreme Court Act 1981 deals with the High Court’s injunctory jurisdiction, and provides:

(1) The High Court may by order (whether interlocutory or final) grant an injunction or appoint a receiver in all cases where it appears to the Court to be just and convenient to do so.

The test therefore, for a County Court asked to grant an injunction in such circumstances, is whether it is “just and convenient” to do so. However, this phrase cannot be regarded a blank slate upon which the Court may write as it thinks fit. Indeed it has been carefully delimited over the years in a number of cases, including The Siskina (Cargo Owners) v Distos SA [1979] AC 210, Castanho v Brown & Root (UK) Ltd [1981] AC 557, British Airways Board v Laker Airways Ltd [1985] AC 58, and South Carolina Insurance Co v Assurantie Maatschappij “De Zeven Provincien” NV [1987] AC 24.

In South Carolina Lord Brandon of Oakbrook noted that although the terms of s 37(1) were on their face “very wide”, they had in fact “been circumscribed by judicial authority dating back many years”. After citing the relevant authorities, His Lordship (at p 40) outlined the two situations where it would be “just and convenient” to grant an injunction, these being:

(i) where one party to an action can show that the other party has invaded, or threatens to invade, a legal or equitable right of the former, for the enforcement of which the latter is amenable to the jurisdiction of the court;

(ii) where one party to an action has behaved, or threatens to behave in a manner which is unconscionable.

Most recently, Lord Brandon’s opinion that the power to grant injunctions was not unfettered was referred to with approval by Lord Bridge of Harwich in Pickering v Liverpool Daily Post Plc [1991] 2 AC 370 and again in Channel Tunnel Group Ltd v Balfour Beaty Construction Ltd [1993] AC 334, Lord Mustill reaffirmed the South Carolina principles, describing them as “too well known to need rehearsal.”

With this framework in mind, I proceed to analyse the particular provisions of the Housing Act 1996. I say first that I cannot entertain the notion that a local authority’s exercise of its discretion whether or not to accommodate the applicants pending internal review and/or appeal may be regarded as unconscionable behaviour per se.

Given that it is well established that the granting of an injunction depends therefore on the pre-existence of some substantive right to which it is ancillary, I turn therefore to the question of substantive rights. Pending review or appeal, what substantive right does the applicant have to which an interim injunction can properly be said to be ancillary? The answer is that there is none. While the local authority must provide the applicants with accommodation in the period between the initial application and the final decision, the provisions of the Act state that this duty comes to an end once the local authority has concluded its inquiries and made its determination, as sections 188(3) and 200(5) illustrate. Pending review or appeal, the duty to accommodate is replaced by a discretion to accommodate. There is no right leading to a cause of action which can be enforced against the local authority, only a statutory right to appeal against the review. It follows therefore that to grant an injunction falls outside the jurisdiction of the County Court.

While appeals to the County Court from a review are on a point of law only, challenges to the local authority’s exercise of discretion under s 202 or 204 may still be made by judicial review: R v Camden LBC ex p Mohammed 30 HLR 315. The 1996 Housing Act, insofar as this Court can see, did nothing to diminish or abolish this right to judicial review, and in our opinion, this is the proper approach for those seeking to be accommodated pending review or appeal to take when the local authority has not exercised its discretion in their favour. This right is of course, subject to the usual principles of judicial review applicable in these cases as expressed in Pulhofer v Hillingdon LBC [1986] 1 AC 484.

It was also argued before this Court that the County Court should have jurisdiction to grant injunctions pending appeal by analogy with the practice under the 1985 Act where injunctions were commonly granted once leave to move for judicial review of the local authority’s decision had been granted. However, the 1996 Housing Act introduced new features, namely the internal review and the right of appeal. This demands a fresh approach to the question of jurisdiction, and, for the reasons I have given, it becomes apparent that it would be contrary to the clear expression of Parliament’s intentions in investing a discretion to accommodate applicants in the local authority and creating a new statutory right of appeal by which to challenge the final decision, to also enable the County Court to override these measures by means of interim mandatory injunction when the local authority has already exercised the discretion given to it by Parliament.

I consider that Parliament appropriately vested a discretion in the local authority to decide whether or not to house an applicant asking for a review of the authority’s decision under s 202, or appealing against the review under s 204. Local authorities are well used to dealing with these types of cases. They know the circumstances of the applicants, and the range and availability of accommodation in their area. They have policies in place to guide them in exercising their discretion. It is a matter of common sense that such decisions should remain within their ambit, and not the courts.

Because of the uncertainty exhibited over this issue in the lower courts, I think it might be of some assistance to summarise the effects of this decision:

1. Where a request for review of a local authority’s decision not to provide accommodation is made, the local authority retains its discretion to decide whether or not to provide interim accommodation pending the resolution of the review.

2. Where an appeal from the review is lodged, the local authority again retains its discretion to decide whether or not to provide interim accommodation pending the resolution of the appeal.

3. Challenges to the exercise of this discretion are to proceed by way of applications for judicial review in the Crown Office.

4. Challenges to the review decision are to be made by way of appeal on a point of law only to the County Court.

5. The County Court on appeal has no jurisdiction to grant an interim injunction requiring the local authority to provide accommodation for the applicants pending the outcome of the appeal.

I would allow this Appeal and order that the injunction be lifted.

LORD JUSTICE MUMMERY: I agree.

THE PRESIDENT: I also agree.

Order: Appeal allowed. Injunction to be lifted. Section 18 costs order not to be enforced without leave of the court. Legal Aid Taxation of all parties' costs. Leave to appeal to House of Lords refused.

(Does not form part of approved judgment)