England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(MR. JUSTICE MAURICE KAY)

		Royal Courts of Justice Strand London WC2 Thursday, 13th December 2001

Thursday, 13th December 2001

1. LORD JUSTICE POTTER: In this case the applicant, who is a litigant in person, seeks permission to appeal the order of Maurice Kay J. dated 5th September 2001, whereby he refused the applicant's oral application for permission to apply for judicial review of a decision of the respondent, who is the Local Commissioner for Administration for England, and ordered that the applicant pay the respondent's costs which the judge summarily assessed at £1750, such costs order to be adjourned generally.
2. The applicant seeks to challenge by way of judicial review the way in which the respondents, and in particular Mrs. Commissioner Thomas and Mrs. Investigator Watson, dealt with complaints he had made to them about the treatment of his affairs by two local authorities, Swindon Borough Council and Ashford District Council, between 1997 and 1999. Turner J. had previously refused the applicant permission to apply for judicial review on the papers by an order dated 2nd July 2001 on the basis that the applicant was out of time, with no proper grounds shown for extending such time, and in any event that he showed no properly arguable grounds.
3. The applicant filed his appellant's notice on 19th September 2001, seven days out of time. He therefore applies for an extension of time on the grounds that he noticed belatedly the time limit.
4. The facts are set out in brief summary in the transcribed judgment of Maurice Kay J., and they are somewhat complex. As they are recited, they extend back to 1997. But I should make clear by way of background that the applicant, who is in his mid-40s, has for some time suffered ill health. He is single and on incapacity benefit, and apparently suffers from a heart condition. By reason of bad health and the lack of means, he has had a problems since, it appears from his oral address to me, as far back as 1989, in finding and remaining in suitable accommodation in the areas in which he has resided. He has (through no real fault of his own as he sees it, and indeed as is plainly the case) lived in what might be called a nether world of interruptions to his place of residence in a situation where, as he sees it, the duties of the local authority in relation to the Housing Acts and the duty to deal with questions of homelessness have not been properly complied with.
5. I have now made clear to him on this application, and I think he accepts, that, so far as judicial review is concerned, it is a remedy relating to orders or decisions made by persons amenable to review, such as the Local Government Ombudsman, in relation to specific complaints; so that where there is a general situation of difficulty, it is nonetheless necessary for a person who suffers misfortune of the kind that the applicant has suffered for him to formulate a complaint, whether of maladministration for the Ombudsman to adjudicate, or thereafter of misunderstanding or wrongful decision by the Ombudsman, with a degree of precision which, so far as this applicant is concerned at any rate, represents a kind of straitjacket which produces a picture not truly reflective of the difficulties which he has faced.
6. The respondent of course acts as a Local Government Ombudsman dealing with complaints about local authorities, and the Commissioner's jurisdiction to investigate complaints is set out in section 26 of the Local Government Act 1974.
7. I return now to the events of 1997 and thereafter as being the time relevant to this application for judicial review. In November 1997 the applicant was evicted from a property where he was living by a building society. As a result, Swindon Borough Council classified him as unintentionally homeless and housed him at 30 Manchester Road, Swindon, which was a privately let property. In May 1988 the applicant ceased residing there pursuant to a notice to quit because the lessor required vacant possession of the property. The mechanics of this termination of residence are not entirely clear but the applicant did not at that stage ask Swindon Borough Council to rehouse him because he was able to take up residence for a time in the house of his recently deceased mother at 99 Papplewick Lane, Hucknall, Ashfield. He was an executor of her will, and, in any event, the practical situation was such that he was able to move in until property could eventually be sold with vacant possession so as to realise the estate.
8. The applicant was able to occupy that house without paying rent to the estate. However, he became liable for council tax on the property to Ashfield District Council between May 1988 and February 1990 as a result. In February 1999 the Ashfield District Council offered the applicant an introductory tenancy at 56 Lancaster Road, Hucknall, Ashfield, and at that stage the applicant agreed to a tenancy there because of the position which he was about to face, namely that he would have to vacate his mother's house. However, the applicant refused at that stage to pay any rent because of difficulties over gas supply. For a long time, indeed, there was a lack of any gas supply at those premises. He stayed on at his mother's house until June 1999 and then did move into Lancaster Road. But it was not long before Ashfield issued possession proceedings against him for rent arrears, and a possession order was made by the Nottingham County Court in July 1999. The applicant was eventually evicted from the property in October 1999 and his furniture was removed to storage.
9. At that stage the District Council did not consider him to be unintentionally homeless and did not rehouse him. Although it might well then have been open to the applicant to go back to Swindon and apply for housing as a homeless person, he succeeded in obtaining other accommodation in Mansfield and has since lived in a bedsit, paying rent but at any rate supplying his own housing need.
10. The applicant complains essentially (and this was a categorisation at which the Ombudsman arrived in considering the complaint which he made):

(1) that having categorised him as homeless, the Swindon Borough Council failed to treat him as homeless in November 1997;

(2) that in May 1988, following his leaving 30 Manchester Road, the Swindon Council failed to rehouse him;

(3) also that Ashfield District Council failed to rehouse him in May 1998, so that he went to his mother's house;

(4) that in February 1999 Ashfield failed to offer him a secure rather than an introductory tenancy;

(5) that Ashfield wrongly charged him council tax between May 1998 and February 1999;

(6) that they failed to ensure a gas supply at 56 Lancaster Road;

(7) that they evicted him and removed his furniture; and

(8) that they failed to rehouse him after this latter eviction, having concluded that he was not unintentionally homeless.

11. In September 1999 the applicant lodged an application for judicial review of the District Council's decision to evict him. However, that complaint was never pursued to court in circumstances described to me by the applicant but which I need not deal with here. In early 2000 he made an oral complaint about his treatment to the respondent, and in February 2000 he made his first written complaint about the matters currently in question, which I have categorised.
12. Those complaints were initially investigated by Mrs. Watson, an investigator acting on behalf of the respondent, who by letter dated 15th March 2000 wrote to the applicant identifying the eight complaints which she had distilled from his correspondence to her and which I have already described. She asked for confirmation whether her analysis of the complaint was complete or accurate. The applicant has told me that he did not get that letter. But he later made lengthy submissions in writing in a further letter, which submissions are not altogether easy to follow, relating generally to the law. At any rate he did not give an answer to the specific question of confirmation or otherwise for which Mrs. Watson had asked.
13. By a letter dated 29th June 2000 ("the preliminary decision") Mrs. Watson addressed each complaint in turn. She found that the first five complaints did not fall to be considered by her, first because they were made more than 12 months after the dates on which the complainant had notice of the circumstances giving rise to the complaint, contrary to section 26(4) of the 1974 Act, and secondly because the complaints did not disclose any evidence of maladministration by the councils, as required by section 26(1) of that Act. She accepted the final three complaints for investigation.
14. Pursuant to her investigation into those complaints, the Commissioner herself, rather than Mrs. Watson, wrote to the applicant by letter of 8th January 2001, which is the decision sought to be reviewed. She concluded, in relation complaint (6), that the council had probably turned the gas off for safety reasons and there was nothing obviously wrong with the Council's action in that respect; in relation to complaint (7), that she could not interfere with the applicant's eviction and that the Council had his furniture in store, ready for collection; and in relation to complaint (8) that the applicant had failed to exercise his right of appeal against the council's decision not to rehouse him as homeless. She indicated that, in the circumstances, the Council's decision did not appear unreasonable, and accordingly she would not exercise her discretion under section 26(6) of the 1974 Act. She therefore concluded that her investigations would come to an end because there was no evidence before her of injustice in consequence of maladministration pursuant to section 26(1) of the Act.
15. The applicant then wrote back to the Commissioner by way of protest, and she responded by letter dated 2nd February 2001, stating that, having reviewed each complaint and her decision, she stuck by her original decision of 8th January.
16. The applicant filed his application for judicial review on 28th September 2000, relating to solely to Mrs. Watson's preliminary decision in her letter of 29th June of that year. It is not clear to me why this application was not considered by the court within the usual period of time. However, the applicant filed a further or amended application on 30th April 2001, seeking to challenge the letters of 8th January and 2nd February 2001. He had previously issued judicial review proceedings against the Swindon and Ashford Councils.
17. The applicant has put in copious submissions and arguments of law in a skeleton argument, a first and second supplement to those arguments (the second supplement having been produced to me on this hearing without previous notice), and has also addressed me orally. As I have already indicated, there are a number of respects in which he has sought to raise complaints, I may say in the most courteous and helpful manner, about the history of his treatment. But it is necessary to tease out of the overall papers and submissions before me those matters which go to the questioning of the decision of the Ombudsman.
18. In broad terms, the applicant seeks to argue that the Commissioner failed to take into account relevant matters and took into account irrelevant matters in reaching her decision. But his principal complaint is that the Commissioner was wrong to sub-divide his complaints for the purpose of investigating them in detail in the way that she did, not least because the result of that was to identify distinct elements of his claim as being out of time when, in his view, the whole matter falls to be considered in the round and cannot properly be sub-divided. He contends that the Commissioner should simply have accepted his status as of the date of his written complaint to her as unintentionally homeless and that she should have treated the council's on-going decision from a much earlier stage not to treat him as unintentionally homeless as amounting overall to maladministration, resulting in an injustice.
19. In his decision Maurice Kay J. identified the relevant decisions that the respondent had made which were potentially judicially reviewable as being the Commissioner's letters of 29th June 2000 and 8th January 2001, holding that the letter of 2nd February 2001 was not a separate decision for the purposes of judicial review but was no more than a reply. This was entirely legitimate as a matter of fact and law (see R. v. CLA ex parte Colin Field, a transcript of which is before me).
20. Maurice Kay J. identified the nature of the respondent's investigatory powers as being discretionary and not obligatory, and was correct to do so. He found that, whatever way the matter was analysed, the applicant's applications stood to be refused because they had not been made promptly and there was no good reason for extending time. Therefore, they fell to be dismissed as time-barred. However, he went on to analyse the merits of the applications and found that there were no arguable grounds of challenge. None of the three letters suffered from any legal error or irrationality but were, as he found, rational and legal. The applications therefore fell to be dismissed.
21. The applicant has set out grounds of appeal in section 7 of his appellant's notice. They are somewhat cryptic. He says that the judge failed to apply the overriding objective provisions, in that he should have identified the issues as early as possible (that is to say starting at 25th November 1997 when the applicant was first provided with accommodation on the basis that he was homeless), and should have considered the applicant's claim for a declaration as to his accommodation right at that date and a further declaration as to his eviction shortly after 26th October 1999 under the Housing Act 1996. The applicant also says that the judge should have encouraged the parties to co-operate after the claim was made on 28th September 2000.
22. The applicant puts forward a summary of arguments in support of these grounds at section 8 which, in some respects, is not easy to follow. He says that:

(1) The judge rejected his papers in favour of the defendant's papers in April 2001.

(2) The judge (Turner J.) said it was out of time and there were no arguable grounds.

(3) The hearing judge (Maurice Kay J.) clearly thought that the claimant's task was to knock down the points made in the decision of the Ombudsman and to show them Wednesbury unreasonable.

23. That seems to me a significant point and I emphasise that because, as I have tried to make clear to the claimant, with an adjustment of the crude terms of that complaint, that is indeed what the claimant's task was.

(4) The claimant's point was that by imposing a deadline of 12 months at the date of receiving the LGO form of 9th February 2000 and creating a cut-off date of February 1999, the Ombudsman thereby had a date of February 1999, which bore no relation to any identifiable event in the claimant's scheme of things.

(5) The Ombudsman then gave answers to later points (those are clearly points (6) to (8)) and refused to answer earlier points ((1) to (5)) without recognising that all the answers depended on whether the claimant was intentionally or unintentionally homeless in November 1997.

(6) The Ombudsmen should have refused to deal with any points at all if she thought that the evidence of intentionality was unavailable due to the 12-months rule.

24. The applicant, as I have indicated, has also filed a skeleton argument and supplements to that skeleton argument in which he makes a variety of further points. He criticises Maurice Kay J. for not beginning the hearing by asking him certain questions relating to his declaration and argues that his application for permission for judicial review had been made within 12 months of the consequence. He argues that the Crown Office, the judiciary and the respondent are "working too hard", in violation of Article 3 of the European Convention of Human Rights, and that the court did not pay sufficient regard to Article 8, "respect for the home". He states that the overriding objective means that the court should deal with cases justly. Again I emphasise the following two grounds as being of real relevance. He appears to seek to appeal the costs order made by Maurice Kay J. and he states that he could have sought to attack the respondent's decision as Wednesbury unreasonable as "simply on the basis that sublingually she is claiming that I made myself homeless intentionally".
25. In his first supplemental skeleton argument, the applicant contends that he was in fact unintentionally homeless and that the judge erred in finding that he was not homeless because he was living in his late mother's house. He also contends that the decision maker, Mrs. Watson, was not a Commissioner herself and so was not entitled to make an executive decision of the type that she did. Finally he contends that Mrs. Watson acted in breach of confidence and/or in breach of Article 8 and/or in breach of her powers by sending information about the applicant to Swindon Borough Council. Of those last three points, the first is obviously one of substance. But because of the role of Mrs. Watson as investigator and her duty to investigate the matters, there is no substance in the second and third points raised.
26. Bearing in mind the nature of the Ombudsman's decision and the nature of judicial review, I have no doubt that the decision of Maurice Kay J. was correct on the merits of the application. Under section 26(1) of the 1974 Act the respondent has a discretionary power -- not a duty -- to investigate:

(a) a written complaint

(b) made by a member of the public

(c) who claims to have suffered injustice

(d) in consequence of maladministration.

27. Under section 26(4) the respondent is prevented from entertaining any complaint made more than 12 months after the date on which the cause for complaint arose, subject to a discretionary proviso. Under section 26(6) the respondent is prevented from entertaining any complaint where the complainant has a right or remedy by way of appeal or direct action, subject to a discretionary proviso, which disappears if the complainant has exercised his or her primary right. The exercise of the Commissioner's discretion is amenable to judicial review if she has exercised her discretion unreasonably in the Wednesbury sense. The decision as to whether a set of circumstances amounts to injustice and/or maladministration is largely a matter of fact and judgment for her (see R. v. Parliamentary Commissionary ex parte Balchin [1997] General Planning Law 917).
28. The position in this case is that the Commissioner exercised her discretion against the applicant in findings of fact that the matters which were within the 12 months available for her examination did not amount to maladministration or injustice. It seems to me that they were decisions she was entitled to make and they cannot be shown to be unreasonable
29. The applicant has contended that the 12 month time-bar is not applicable to his complaint since the substantial act by Ashford District Council that he was complaining about was the decision in October 1999 not to rehouse him after his latter eviction despite the fact that he was, in his eyes, unintentionally homeless. However, even if some of his complaints were brought out of time, I was obliged to consider the matter as one purported global complaint. But that still does not mean that the applicant is entitled to any order setting aside her decision. There would only be grounds for such an order if her decision could be faulted as unreasonable or plainly erroneous. The respondent found no evidence before her of any maladministration by the local authorities or any injustice in not offering the applicant rehousing in October 1999.
30. As I have made clear to the applicant, the position in regard to homelessness is practically a question of whether, at any given stage, and quite apart from intention or lack of intention, the applicant actually had no place in which to live. The findings of fact made by the respondent were findings she was entitled to make for the reasons she gave and which led to her exercising her discretion to investigate no further and take no further action.
31. Nor do I think it is possible to fault the decision of Maurice Kay J. on the applicant's lack of promptness. The applicant does not appear to put forward any clear argument challenging the finding of Maurice Kay J. (and of Turner J. earlier) that his application was not made promptly, and the judge was entitled to conclude that it was not made promptly, whether in response to the Commissioner's decisions of 29th June 2000 or 8th January and/or 2nd February 2001.
32. In so far as the applicant seeks to rely on the overriding objective governing the court's case management powers in conjunction with the fact that he is a litigant in person and unfamiliar, as he says, with housing law and the complaint mechanisms before the ombudsman and by way of judicial review, I see no reason for interfering with the factual findings of the two earlier judges, one after an oral hearing with the applicant present, that nonetheless the application for judicial review could have been made at an earlier stage and has not been made promptly in all the circumstances.
33. For the reasons stated, I can see no possibility of the applicant persuading the court to reverse or vary the order of Maurice Kay J.
34. Finally, it seems to me that the reasoning behind the costs order of Maurice Kay J., which is set out in the transcript of his judgment, cannot be faulted. The costs order of £1750 summarily assessed, to be adjourned generally, was plainly within his discretion and unimpeachable on appeal.
35. In those circumstances, the applications of the applicant must be dismissed.
ORDER: Applications dismissed.