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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Ealing v Surdonja & Ors [2000] EWCA Civ 7 (21 January 2000)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2000/7.html
Cite as: [2000] 2 All ER 597, (2000) 32 HLR 481, [2000] 3 WLR 481, [2000] EWCA Civ 7, [2000] NPC 5, [2001] QB 97
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Case No: CCRTF 99/0558/2
CCRTF 99/0732/2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRENTFORD COUNTY COURT
(HIS HONOUR JUDGE MARCUS EDWARDS)
AND
WANDSWORTH COUNTY COURT
(HIS HONOUR JUDGE RICHARD WALKER)
Royal Courts of Justice
Strand, London, WC2A 2LL
Friday, 21st January 2000
LORD JUSTICE HENRY
and
LORD JUSTICE POTTER
- - - - - - - - - - - - - - - - - - - - -
LONDON BOROUGH OF EALING |
Appellant (1) | |
- and - |
||
NIKOLA SURDONJA |
Respondent (1) | |
AND |
||
ABDURAHMAN MOHAMMED |
Appellant (2) | |
- and - |
||
LONDON BOROUGH OF HAMMERSMITH & FULHAM |
|
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Kelvin Rutledge Esq (instructed by Messrs Richard Polson for Appellant (1))
Jan Luba Esq (instructed by Messrs Sutovic & Hartigan for Respondent (1))
Stephen Knafler Esq (instructed by Hammersmith & Fulham Community Law Centre for Appellant (2))
Robert Levy Esq (instructed by London Borough of Hammersmith and Fulham for Respondent (2))
Judgment
As Approved by the Court
Crown Copyright ©
Friday, 21st January 2000
LORD JUSTICE HENRY:
1) We are asked to hear these appeals together, and to treat them as test cases to answer three issues which we are told are unresolved (at Court of Appeal level) yet frequently arise. All flow from the situation where an eligible applicant (homeless or threatened with homelessness and in priority need) applies to the receiving local housing authority ("LHA") for assistance with his accommodation, and that LHA, instead of providing that assistance itself, refers the applicant to another LHA ("the notified LHA") under Section 198 of the Housing Act, 1996 ("the Act") to provide it. This the receiving LHA may do when enquiry reveals that the applicant has no "local connection" with the receiving LHA, but has such a connection with the notified LHA to whom the reference is made. In all cases where I simply refer to a section number, the reference is to the Housing Act, 1996.
2) As Turner J said in R -v- Southwark London Borough Council ex parte Hughes [1983] 30 HLR 1082 at 1089:
"Housing is about the most basic social requirement of an individual. It is not conceptual, it is factual. The Housing Act is intended to be of social effect."
When dealing with the priorities of those of the homeless who are in priority need, the statute by definition deals with those who need support and stability the most. And, in addition to catering to British nationals, there are, as these two cases show, the problems of refugees, often from bloody civil conflict in their own lands (here Croatia and Somalia respectively). These appeals therefore concern real problems, real needs, and a shortage of resources to meets those problems and needs.
3) The three issues are:
i) What is the material date for determining whether the eligible applicant has a "local connection"? Is it: a) the date he applies as homeless; b) the date when the authority reaches its decision (under Section 193(2)) whether to refer the application to another LHA or to secure that accommodation is available for the applicant; or c) the date it reviews its decision? (Paragraphs 22 - 37)
ii) Can occupation by such an applicant of interim accommodation pending the decision or its review constitute "normal residence of [his] own choice" for the purposes of Section 199(1)(a) of the Act? (Paragraphs 37 - 48)
iii) What is the scope of the Section 202 review: a) must the reviewing officer consider all the facts of the case afresh? b) May he do so? c) Or might he limit his role to considering any representations he receives from the applicant, and checking for evident errors in the initial decision? (Paragraphs 49 - 50)
4) In these cases, both applicants presented as homeless, Mr Surdonja to Ealing London Borough Council ("Ealing") and Mr Mohammed to Hammersmith and Fulham London Borough Council ("Hammersmith"). Those receiving LHAs were under a Section 184 duty to enquire as to the applicant's eligibility for assistance, the duty owed to him, and (under Section 184(2)) they may enquire whether the applicant has a local connection with the district of another LHA to which his application may be referred. Section 184(2) uses the "may" in relation to the receiving LHA's power to enquire into the possibility of referral, but they are not obliged so to do. They are quite entitled to take on responsibility for the applicant whether or not they would have established power to refer.
5) In each case the receiving LHA embarked on the enquiry under Section 184, found that each household was eligible for accommodation to be provided, but in each case referred the duty to provide that assistance to another LHA, the notified LHA.
6) We are concerned here with the situation postulated in Section 193(1) of the Act:
"...where the local housing authority are satisfied that [the] applicant is homeless, eligible for assistance and has a priority need, and are not satisfied that he became homeless intentionally."
7) In those circumstances, Section 193(2) obliges the LHA receiving an application "... to secure that accommodation is available for the occupation of the applicant" for a minimum of two years (see Section 193(3)) unless the receiving LHA "... refer the application to another local housing authority".
8) The powers of referral to another LHA are dealt with in Sections 198 to 201 of the Act. Section 198(1) provides that where the receiving LHA would be subject to the Section 193(2) duty to secure that accommodation is available for the applicant but "... consider that the conditions are met for referral of the case to another local housing authority", they may notify that authority. The relevant conditions of referral to another LHA are met if:
"a) neither the applicant nor any person who might reasonably be expected to reside with him has a local connection with the district of the authority to whom his application was made, and
b) the applicant or a person who might reasonably be expected to reside with him has a local connection with the district of that other authority"
[Subsection c) deals with victims of domestic violence, and does not here apply.]
9) Thus the receiving LHA cannot refer the applicant to another LHA where the applicant (or any person in his household) has a local connection with the receiving LHA's area. Nor can it refer where the applicant has no connection with its area nor with any other area. It can only refer where the applicant has no connection with it but has a local connection with the notified LHA.
10) "Local connection" is defined by Section 199 of the Act. Section 199(1) limits the meaning of "local connection" in Section 198 to connections caused by any one or more of four things:
"(a) because he is, or in the past was, normally resident there, and that residence is or was of his own choice,
(b) because he is employed there,
(c) because of family associations, or
(d) because of special circumstances."
Those listed causes of a local connection emphasise matters that go to having a place in the community: choice, employment, the continuity of support that family associations can give, and all special circumstances which can contribute to such a socially beneficial "local connection".
11) The requirement that to operate as a qualifying cause, normal residence must be "of his own choice" does not exclude all involuntary reasons for non-qualifying residence. Subsection 3) identifies two disqualifying causes: service in the armed forces, or detention under Act of Parliament (eg prison). Subsection 5) gives the Secretary of State power to specify
"... other circumstances in which:
...
b) residence in a district is not to be treated as of a person's own choice"
and he has not so specified.
12) In deciding whether the applicant has a local connection with the area being considered, it seems to me that the words of Lord Brightman in R -v- Eastleigh Council ex parte Betts are still relevant, despite the fact that the statutory background (and in particular the "jumping the queue" element) is not precisely as it was: see [1983] 2 AC 613 at 627E:
"But `local connection' means far more than that. It must be built up and established: by a period of residence; or a period of employment; or by family associations which have endured in the area; or by other special circumstances which spell out a local connection in real terms."
13) In Mr Surdonja's case, by decision letter of 2nd November 1998, Ealing found him to be eligible for assistance, not intentionally homeless, and with priority need (ie that he was owed a duty by some LHA to arrange temporary accommodation for his household) but referred his application to Westminster LHA on the grounds that neither he nor his wife had a local connection with Ealing, but he had a local connection with Westminster.
14) In Mr Mohammed's cases, by decision letter of 28th July 1998, Hammersmith & Fulham accepted that he was owed such a duty but referred that duty to Ealing on the basis that neither he nor his wife, Mrs Farah, had any local connection with Hammersmith, but she had a local connection with Ealing.
15) Each decision letter informed the applicant of his statutory right to a review. This was introduced for the first time by the 1996 Act.
16) In Mr Surdonja's case, the letter said:
"If you disagree with this decision you have the right to request a review, which will be carried out by Senior Officers in the Housing Department.
If you wish to request a review, you must do so within 21 days of receiving this letter. You will be able to make written representations which the review panel will take into account.
You may also send written representations made by other people on your behalf.
The review panel will make its decision based on all the information available to it at the time it meets, including your written submissions. It is therefore essential that you tell us everything you consider relevant."
The head of the panel conducting that review wrote on 20th November 1998, implicitly confirming that the panel would take into account all information received. In the light of those letters, it is somewhat surprising that Ealing's first ground of appeal against the trial judge's quashing of that decision letter was:
"That the learned judge erred in law ... in holding ... that the material time for assessing local connection for the purposes of Section 198 was the date of the review (ie December 1998). The learned judge ought to have directed himself that the starting point for assessing local connection was the date of the ... application for housing assistance (ie August 1998)."
17) In Mr Mohammed's case, the letter read:
"If you feel that the Council has acted unreasonably in deciding that your application should be referred, you have the right to request a review of this decision ... within 21 days ...."
18) In each case, a review was requested within time and in each case up-to-date letters supporting the claim for local connection with the receiving LHA were sent.
19) The statutory provision giving applicants the right to review a referral to another authority is found in Section 202(1) c), d) and e). Section 203 empowers the Secretary of State to make provision by regulation for the procedure to be followed in connection with a review. At the time of the review in these cases, the Allocation of Housing and Homelessness (Review Procedures and Amendment) Regulations 1996 governed the review. It provided that the review should be conducted by an officer senior to the one who made the decision (Regulation 3), the decision should be notified within eight weeks (Regulation 4), and that the review should be carried out "on the basis of facts known to them at the date of the review" (Regulation 8). This is also reflected in the official Code of Guidance, 1997 version at 17.11. Regulations 2 to 8 have since been replaced by the Allocation of Housing and Homelessness (Review Procedures) Regulations, 1999, which Regulations do not contain the passage from Regulation 8 quoted above.
20) In the event, in each case the review confirmed the decision taken. And in each case, the review decision letter expressly stated that all the matters raised subsequent to the decision under review had been taken into account: that is to say that the date of final decision was the date of the review.
21) Section 204 of the Act gives an applicant who has requested a review an appeal to the County Court on a point of law if dissatisfied with the decision on the review, giving the court power to confirm, quash, or vary the decision. That is the scheme of the legislation.
22) The first issue is what is the material date for determining whether the eligible applicant has a "local connection".
23) The three dates suggested are the date of the application (presenting as homeless), the date of the housing and referral decision, and the date of the decision letter after the review.
24) In the appeals with which we are concerned, the time elapsed between application and the end of the process with the review was 3½ months in one case and 5 months in the other. Other reported cases suggest that such times are not untypical. The Code envisages 30 working days between the commencement of the enquiry and the decision. The 1996 Regulations provide that the review decision will be within 8 weeks of the request for review unless the authority and the appellant agree a longer time.
25) The significance of the date for determination of the local connection is well illustrated by the facts in Mr Surdonja's case. He had come to this country as a refugee from Croatia on 14 August 1997. He shared a studio flat in Westminster with his brother for a year while awaiting his wife and three small children, then all under seven, from Croatia. Over the year in question Mr Surdonja had done little or nothing to integrate himself into that community. His brother, after five years here, does not speak English. All changed when his wife arrived with their three children. His wife has an English speaking uncle in Ealing. When she arrived with her children in August 1998 they moved to the uncle's home. But that could never be a viable long term solution - four adults and five children in a two bedroom house. So within a couple of days of the wife's arrival in this country, they presented as homeless to Ealing. Ealing was to refer the housing duty to Westminster, on the basis that there was no local connection in Ealing, and Mr Surdonja had a local connection with Westminster. The judge was to quash Ealing's decision referring the housing duty to Westminster on the basis that there was an arguable case not addressed by Ealing that by the time of the decision letter (some 3½ months later) there was evidence by reason of residence and/or family association to support local connection with Ealing, which there was not and could not have been at the date of presenting as homeless.
26) The bulk of that time had been spent in interim accommodation provided under Section 188 of the Act by Ealing. The nature of the case was that the local connection was established by residence in Ealing including the time in interim accommodation, together with all the facts connected with it, such as the support from the English speaking uncle, and the fact that the three traumatised children had, after great initial difficulties, settled into a local school - their mother having attended with them every day for the first month. Additionally, one parent (the documents are contradictory as to which) is attending the local tertiary college to learn English. All, it was argued, added up to a local connection.
27) That case for recognition of a local connection arose entirely from events after the application. At the date of application there was no case whatsoever for a local connection with Ealing. Ealing's initial decision letter (2nd November 1998) makes it clear that they had only considered as residence in the Borough the time the family spent with the uncle, Mr Prosenica, from 23rd August (the date of application) to 16th September, when Ealing provided interim accommodation. So if Ealing are right as to the relevant time to consider local connection, their appeal must succeed; there would be no arguable case for local connection if the cut-off date were either 23rd August or 16th September.
28) There are certain similar features in Mr Mohammed's case. Mr Mohammed and his wife, Mrs Farah, were displaced by the brutal civil war in Somalia. In late 1992 they went with their two sons (then 5 and 4) to Kenya. In 1995 Mrs Farah came to the United Kingdom. She lived most of the time, until her husband's arrival, in Ealing.
29) Mr Mohammed arrived in England on 31st January 1998. He had lost contact with his wife. He lived in Hammersmith with the blind son of a close friend, now dead. He was re-united with his wife. Together they applied (on 16th April 1998) to Hammersmith for assistance with their accommodation. That application was decided by letter dated 23rd July 1998, which held that neither spouse had a local connection with Hammersmith, but Mrs Farah had one with Ealing. Accordingly, the housing duty was accepted and referred to Ealing. The applicants sought a review, which, on 29th September, confirmed the decision. The applicants then appealed to the County Court (under Section 202 of the Act) and on 17th June 1999 that appeal was dismissed. The County Court decision is now challenged before us.
30) There are two grounds of challenge common to both appeals. First, in each case the local authority has continued to provide interim accommodation, initially until the date of original (pre-review, if applicable) decision (see Section 188), and has voluntarily continued to provide that accommodation pending the outcome of this appeal, and in each case it is said that residence within the borough in that accommodation does not count. Second, the treatment of "family associations" and "special circumstances" when dealing with refugees arise in each case. As to this second point, we say no more than in our judgment the starting point is the position of the applicant and his household and, in having regard to both "family association" and "special circumstances", while we do not discourage general rules such as are to be found in the Local Authority Agreement, we note that Parliament left those broad phrases undefined, and to be judged as a matter of fact and degree in every case. For instance, the actual closeness of the family association may count for more than the precise degree of consanguinity.
31) The first difficulty that the LHA face is that there is no support for their case in the statute. Where, as here, there is a statutory entitlement to a review, there may be two decision times - first the initial decision, and then the review. One would expect both tribunals to consider all relevant facts before them. If either stage of decision taking was to be artificially limited in what facts it could consider, one would expect the statute to make it plain. Otherwise, after the decision but before review the court would have to shut its eyes to a subsequent event which might either entitle or disentitle the applicant to the local connection in issue. In fact, as the applicants point out, the statute uses the present tense to describe the issue - see Section 184(2) the duty to enquire "... whether he has a local connection".
32) Nor is there conclusive authority to support the LHA's case. They rely on two cases, both decided before the 1996 Act introduced the statutory entitlement to a review of the decision.
33) The first case is R -v- Newham London Borough Council ex parte Smith [1996] 29 HLR 213, a decision of Sir Louis Blom Cooper QC sitting as a deputy High Court Judge. I have little quarrel with the ratio of his decision on the law as it then stood (ibid at 221):
"In my judgment a local authority may properly ask itself whether the applicant had a local connection ... at the date of the application under Part III of the Housing Act, 1985 so long as it is prepared to review its decision in that regard should the delay in its investigations under Section 62 [cf Section 184 of the 1996 Act] be prolonged in such a way as to call for a reconsideration of its decision on referral."
34) The review was clearly an extra-statutory voluntary review. Now that the right to a review is statutory, that right is not dependent on there having been any delay, and all relevant matters put before the reviewing officer or panel must be considered.
35) Next, there is the Court of Appeal decision in R -v- Hammersmith & Fulham London Borough Council, ex parte Avdic [1996] 30 HLR 1. There a refugee from Bosnia moved from Dewsbury to London, where she applied as homeless. Hammersmith accepted that she was owed a duty, but referred her back to Kirklees (which covered the Dewsbury area) in September. Her solicitors then sent in more material which the LHA considered before, in January, refusing her again. The reconsideration of the case was voluntary. Lord Justice Simon Brown said (albeit obiter) at 8:
"To my mind it is far from clear that an appellant's claim to be housed under Part III of the 1985 Act can be improved in this fashion simply because the local authority accede to a request to review the matter, as this local authority has done after the initial decision was taken."
He said he found it unnecessary to deal definitively with the point on that occasion. What the Lord Justice was in fact questioning was whether the local authority should have acceded to the request for a review. I do not read him as suggesting that where statute grants the applicant a right of review, that review is limited to his case as originally put forward. That in my judgment would require express language which is not there. It would also, as I will develop, not contribute to the purpose of the legislation.
36) The point was considered by Turner J in R -v- Southwark London Borough Council ex parte Hughes (see above). That too was under the 1985 Act, before there was a statutory right of review. Turner J concluded the passage quoted in paragraph 2 of this judgment:
"It may be thought therefore that there are compelling reasons why the circumstances of an individual at the time the inquiry is carried out and the decision made, must be the circumstances which the local authority is required to investigate for the purpose of coming to their decision whether or not the applicant is homeless" (emphasis added)
37) I agree with that, and it is clearly all the truer after the introduction of the statutory right of review. For the statutory appeal to the County Court to lie, that appeal must be against the review (Section 204(1)). So the review is the final administrative stage, and the statutory appeal to the County Court only lies after the review. Accordingly, I would answer the first issue that the material date for determination whether the eligible applicant or member of his household has a local connection is the date the LHA reviews its decision.
38) Linked to the first issue is the second issue: can occupation by the applicant of interim accommodation pending decision and review constitute normal residence "of his own choice".
39) This seems to me to be a question of statutory construction. As set out in paragraph 11 of this judgment, it is clear that Section 199(3) gives a restricted statutory meaning to the phrase "of his own choice", that meaning can only be extended by the Secretary of State, and he has not extended it. Therefore, even if the applicants did not occupy the interim accommodation out of choice (an existential concept not explored) their occupation would be of their own choice for the purposes of Section 199(3).
40) Once the meaning of "choice" is clarified, there is no problem as to "normally resident". Both families are normally resident in their respective boroughs - they certainly are not normally resident anywhere else. As Lord Brightman made clear in the Eastleigh case, "normal residence" is but a factor in the whole of the existence of a local connection. Part of the commitment which could help to turn normal residence into local connection is the schooling of the Surdonja children.
41) Support for the applicant's case that interim residence pending final decision counts is to be found in Regulation 8 of the Allocation of Housing and Homelessness (Review Procedures and Amendment) Regulations 1996, as to which see paragraph 19. Though those Regulations are expressed to be procedural, Regulation 8 is supported by the statutory Code of Guidance on the Act, 1997 Edition, which states:
"17.11 The authority should then carry out the review on the basis of the facts as known to them at the date of the review, including written representations."
Those words would seem conclusive of Issue 2. Ealing however contend that this simply reflects the position under the old statutory instrument. They rely on the 1999 statutory instrument which removes the old Regulation 8(1)b with its general duty to
"... carry out the review on the basis of the facts known to them at the date of the review"
and replaces it with an entirely different Regulation 8(1)b. I am puzzled by that amendment, and in doubt as to what, if anything, beyond the literal fact that something is replaced by something entirely different and unrelated, to read into it. If a drastic change was contemplated, I would not expect the guidance to remain unchanged in the form of the 1997 edition. But the original 8(1)b was in force when Ealing took their decision. They did not apply it. In my judgment they should have. And, while not suggesting they did, they should not have taken the 1999 draft regulations into account, even if they knew what they were, five weeks before they were signed. The same applies in Mr Mohammed's case.
42) The question still remains as to what Regulation 8 in its form as at the date of review means when it says that:
"... the authority shall ... carry out the review on the basis of the facts known to them at the date of the review."
43) The Code, in paragraph 17.11, expands that to add:
"... including any written representations. It may in some cases be necessary to make further enquiries of the applicant."
Judge Marcus Edwards, in Surdonja, held (judgment, page 8) that the relevant circumstances must be:
"... the circumstances of the individual [known to the authority] at the time the decision is made, or as thereafter updated at the time of review."
Judge Richard Walker, in paragraph 12 of his careful judgment, read these words as including all further facts which, had they been known, might have led to a different conclusion, but excluding all changes in circumstances subsequent to the original decision. I prefer the judgment of Judge Marcus Edwards on this point. I cannot find support for the thesis advanced by Judge Richard Walker in the primary legislation, the Regulations or the Code. It seems to me clear that if, between decision and review, there was either a change of circumstance which might establish the local connection with the LHA to which the application had been made (eg that the applicant had obtained permanent employment in the borough) or, conversely one which disqualified him from looking to that LHA to meet his housing needs (eg ceasing to be entitled to priority need, or losing employment in the borough, or family associations in the borough moving away) then in either case the reviewing officer should take those changed circumstances into account. It follows that, as a matter of statutory construction, the reviewing officer must take into account all relevant facts at the date of review.
44) I am not persuaded to the contrary by the case mounted by the LHA that the statute must be construed purposively to reflect the fact that the mischief aimed at is to relieve the pressure on boroughs which prove to be targets for applicants, and to spread the load more equitably between boroughs. The argument runs that to count towards a local connection the time spent in residence in a borough only by grace of being a beneficiary of the interim obligation imposed by Section 188 on the LHA to which application is made, is to defeat the redistributive purpose of the legislation. It is also submitted that it is internally unfair, in that it is not a legal requirement that interim Section 188 accommodation be provided within the receiving LHA (see Section 208) and it is also unfair that those accommodated within their desired district should be advantaged by their good fortune. More fundamentally, there is the "jumping the queue" argument that played its part in the Eastleigh case. And linked to this is the third issue, the scope of the review.
45) First, the Act's purpose. I accept that there was a redistributive "spreading the load between LHAs" purpose to the Act. But that purpose was to be achieved not by any merit-free reallocation formula, but by rewarding applicants who had a local connection with the borough of their choice, where they applied. It was to be achieved by providing that the receiving LHA was not entitled to refer the statutory responsibility elsewhere when the applicant had a local connection with them. That is a statutory purpose which must equally be taken into account. The statute's redistributive mechanisms are certainly no more significant when construing the Act than the reward the Act gives to those who have, by satisfaction of the local connection rules, become an active part of the community. That seems to me to be as important a purpose as a straight redistributive purpose.
46) Second, recognising good (or more significantly, involved) citizenship is a worthy legislative intention, and the incentive to applicants to establish a local connection with the LHA to which they apply more than compensates, in the balance sheet of public good, for the fact that other applicants whose Section 188 housing is outside the district are not so well placed. Insofar as it may seem unfair in that such persons do not have the same opportunity as those whose interim housing is within the borough, that is not a reason for denying the latter the benefit of a local connection if that is what they have created by the time of the review.
47) Third, the "jumping the queue" unfairness. At the time of Lord Brightman's speech in Eastleigh, if the qualifying applicant established a local connection with the LHA to which he had applied, he went to the top of the housing list. One of the innovations of the 1996 Act is that help given under Section 193(3) is temporary - see sub-sections (3) to (7). So, Mr Knafler and Mr Luba for the applicants are right to submit, that provision of the "full" housing duty under Section 193 results in the provision of temporary accommodation only, in which the homeless person remains until his "waiting list application" eventually succeeds on its merits in accordance with the LHA's general allocation scheme. So to that extent the element of queue jumping is reduced and any residual "unfairness" is not sufficient to impose the construction the LHAs propose on the Act.
48) Accordingly, I would answer Issue 1: the material date for determining whether a Part VII applicant has a local connection is at the date of the review of the decision if reviewed, and otherwise the date of the decision. In answer to Issue 2, occupation of interim accommodation under Section 188 of the Act pending the decision can constitute "normal residence" contributing to a local connection under Section 199(1). The weight to be given to the fact of that residence is a matter for the LHA in the initial decision, and the reviewing officer or panel later, who will naturally pay attention to the extent to which the applicant has used that period of residence to establish that element of permanence and commitment to the district in question: local connection in a real sense, as used by Lord Brightman in Eastleigh above.
49) I turn to Issue 3, the scope of the review and the duty of the reviewing officer. The LHAs' initial decision is an inquisitorial one. It is their duty to conduct a proper enquiry (albeit they often will have to rely on facts obtained from the applicant). After the applicant has initiated the LHAs' Section 184 enquiry by applying under Section 183, he has no obligations other than to assist the enquiry as required until the decisions as to housing duty owed and referral are taken. Then the applicant has a statutory right to request a review under Section 202(1)(c), (d), and (e). I have already dealt with the outline provisions under paragraphs 19 to 21, and with the practical application of the review at paragraphs 40 to 43.
50) "Review" is the appropriate word for the act of submitting for examination and revision an inquisitorial administrative decision affecting the applicant's "most basic social requirement" (per Turner J, R -v- Southwark London Borough Council ex parte Hughes above at 1089). Given the importance of the decision, and everything that has been said in this judgment thus far, the reviewing officer must consider all of the facts afresh. The Code (1997 revision) still in Paragraph 17.11 limits the review to "... facts as known to [the LHA] at the date of the review." That is a necessary qualification, given the fact that the review is ordinarily a review of the file, in that it is a decision on the documents without a hearing. As I have previously said, I am not prepared to assume that that plain requirement survives in the Code by oversight. The scope of the review must be wide enough to consider all the up-to-date facts with all others afresh, to see whether the local connection has been made out.
That is how I would answer the third issue.
51) Having answered the three issues in a way favourable to the applicants, I turn to the individual appeals.
52) In relation to Mr Surdonja's application, the fundamental error of law relates to the dates when the question of local connection falls to be considered: the date of decision and the date of review, if applicable. Had the LHA rightly applied the law, they would have considered at the respective decision times the whole time over which the Surdonja's had been resident in the LHA district, and would not have ignored the period in interim accommodation under Section 188.
53) At the date of decision (2nd November 1998) paragraph 2 dealt with normal residence in the LHA and restricted it to residence with Mr Prosenica, the wife's uncle, at 37 Anstey Court - that is to say three week's residence only, with all the time occupying interim accommodation in the Borough under Section 188 wrongly excluded. In their request for a review the applicant's solicitors did not challenge this part of the finding, themselves only mentioning residence to say: "Although our client has not lived at 37 Anstey Court for very long ...". The review decision letter does not mention residence at all, but both before Judge Marcus Edwards and before us, the LHA argued that the right date for consideration was the date of application, thus ignoring all residence through Section 188 accommodation, as well as all the integration which the family have achieved, with the assistance of the wife's uncle, since that date. In my judgment, the judge was right to conclude that the decision letter
"... makes no reference to the Panel having reviewed the possibility of local connection by reason of normal residence or family associations"
as well as having ignored what was achieved during the time of the Section 188 accommodation.
54) The error of law was therefore fundamental, and precluded the LHA from asking themselves the right question. Such an error of law would normally be fatal to the decision, but by their notice of appeal, the LHA contends that, as the point as finally developed was not spelled out in the applicant's solicitor's letter submitted for consideration at the time of review, the LHA was not bound to consider it. The judge found that:
"The duty of the local authority is to review the decision which it is requested to review, in this case the decision to refer.
Their duty is to apply the provisions of the Act to the facts before them on the file, together with any further representations and evidence put before them.
In my judgment they are not limited to, and should not limit themselves to, reviewing particular points, to the exclusion of other relevant, or potentially relevant, points. They must review the facts afresh, as a whole, and apply the Act to them."
Those facts of course must be facts known to them, hence the judge's reference to the facts in question being found in the documents. The decision taken here was fundamentally in error as to the law on the correct application of those facts, and the judge was right in his analysis of the principles involved and in the order he made. I would dismiss the LHA's appeal in this case.
55) I turn then to Mr Mohammed's case. Again, in his case it is clear that both in the decision letter (23rd July 1998) and on review (letter of 23rd September 1998) the LHA ignored all residence after the grant to the applicant of interim Section 188 accommodation in the LHA area - that is to say they too misdirected themselves in law, and consequently only considered a further five months plus (or nearly eight months in all - see the judgment paragraphs 37 - 47).
56) Secondly, complaint is made that the judge glossed the statute, and in so doing imposed too stringent a test on the establishment of a "local connection". On review, the LHA's reviewing officer said:
"I have also considered the cumulative effect of all of these various factors, but I am not satisfied that the household's stated need to live in this borough is an essential compassionate, social or support need ... sufficient to have given rise to a local connection with this authority in real terms."
57) The applicant's case is that this is a misdirection. Proving a local connection is one thing: proving that you have an essential, compassionate social or support need is quite another. Forensic archaeology suggests that the source of this phrase is its use by the Hammersmith LHA in their 1996 decision letter in the case of Hammersmith & Fulham London Borough Council ex parte Avdic (above, at 28 HLR 897 at 901), where it was quoted, without comment, at first instance and not referred to at all on appeal. In my judgment that is a clear misdirection in law. In so finding, I have gone back to Lord Brightman's speech in R -v- Eastleigh Council ex parte Betts. I have already made the point that the queue for permanent housing is no longer "jumped" as a result of Section 193, and have already accepted that the local connection should be real and not illusory, and where real, should be rewarded. There is no "purposive" construction case for requiring that the applicant show an essential compassionate, social or support need to live in the LHA's district. That is to put the test for a local connection too high.
57) I look no further than those two fundamental errors of law. The applicant is entitled to have the decision on his application reviewed on a correct legal basis. His case should be considered on the law as properly applied, and on the facts at the time of that review. I would allow this appeal.
LORD JUSTICE POTTER:
I agree.
Order:
CCRTF 99/0558/2
Appeal dismissed with costs; legal aid assessment; permission to appeal to the House of Lords refused; order as per minute of order.
CCRTF 99/0732/2
Appeal allowed; respondent to pay appellant's costs; detailed assessment of legal aid.
Orders do not form part of approved judgment.