England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL
LONDON COUNTY COURT
(His Honour Judge Bradbury)

		The Royal Courts of Justice The Strand London WC2A Tuesday 27 March 2001

Tuesday 27 March 2001

1. LORD JUSTICE MANCE: This is a renewed application for permission to appeal from a decision of His Honour Judge Bradbury at the Central London County Court on 5 October 2000. An appeal would, on the authority of Asimi v Newham London Borough Council (unreported, CA 26 July 2000) be a second appeal for the purposes of CPR 52.13, so that permission to appeal should only be given if this case raises some important point of principle or practice or there is some other compelling reason for an appeal.
2. I note, however, that the two decisions below were to opposite effect. The first was a decision by the London Borough of Newham, constituted by Mr Clark's review decision dated 29 August 2000 (which was itself, in fact, a second review decision) which determined that Mr Miah was not in priority need. A second factor in Mr Clark's second review decision was that Mr Miah's daughter, Nazmena, was not financially dependent upon him. The reasons for that conclusion were set out in his letter of 29 August 2000, of which I need read only part:

"Your youngest daughter Nazmena is currently working part time in a local supermarket. You say that she is about to enter education. You have not provided any details of the qualifications she has obtained over the last year, nor have you provided any details of the course she will be following next month. The Code of Guidance (14.2) says that authorities 'may wish to treat as dependent [...] all children who are in, or about to begin, full-time education or training [...]'. Most students in higher or further education are entitled to a grant and/or loan. She has managed to find employment during the Summer vacation; and is in any event almost 18 (and will be on 18.9.00). You are unemployed and you are not currently receiving benefits for Nazema [sic]. I am satisfied that Nazema is not financially or otherwise dependent upon you."

3. The relevance of Nazmena's dependency, if any, and in that connection her age, appear from s 189(1) of the Housing Act 1996 and the Code of Guidance, to which Mr Clark's letter referred, issued under the Act by the Department of the Environment. Under s 189(1):

"The following have a priority need for accommodation...

(b) a person with whom dependent children reside or might reasonably be expected to reside. . ."

4. The judge said:

"The 1996 Act does not fully define the words 'dependent children' or 'vulnerable', but guidance as to the interpretation of those words is given in the Code of Guidance on the Housing Act 1996 and issued by the Department of the Environment.

On dependency, the first two sentences of paragraph 14.2 of the Code read:

'Priority need arises when an applicant has one or more dependent children living with him/her or who might reasonably be expected to do so. The 1996 Act does not define dependent children, but authorities may

wish to treat as dependent all children under 16 and all children aged 16-18 who are in or are about to begin full-time education or training, or who for other reasons are unable to support themselves and live at home."

5. It is evident that Mr Clark's second review decision treated Nazmena's 18th birthday on 18 September 2000 as of some importance. His decision in my judgment only really makes sense on the basis that Nazmena was working during the summer of 2000 and would then reach the maximum age at which she could be regarded as a dependent.
6. For good measure, I add that His Honour Judge Bradbury found in his judgment that, so far as the decision letter dealt with the position after Nazmena's 18th birthday at all, it misrepresented information which Mr Clark had been given about Nazmena's future educational plans: see the judgment, bundle page 24. There was in any event, as the judge found, a paucity of reasoning on this aspect which was not in the event supplemented, as it appeared in his view, by subsequent evidence filed by Mr Clark. That paucity of information seems to me hardly surprising, bearing in mind that Mr Clark was, as I have said, evidently of the view that it was only the position up to 18 September 2000 which was really decisive: see in particular his reference in his letter to Mr Miah's failure to provide "any details of the course she will be following next month", as well as his reference to the 18th birthday of Nazmena.
7. His Honour Judge Bradbury disagreed with Mr Clark's interpretation of the Code of Guidance. He said in his judgment, at bundle pages 30 to 31, that the reference to "16-18" in the Code of Guidance could not be a reference to a period of time ending on an 18th birthday, as had been submitted before him by Miss Bretherton, and as she submitted to us. He said:

"In my judgment. . . the phrase 16-18 needs to be interpreted in a commonsense way, and must include children throughout the period when they are aged 16, 17 and 18."

8. I agree that this is the only correct interpretation of the code, and see no prospect of any alternative result on appeal. Accordingly, I see no basis for any appeal on this ground.
9. It follows that Mr Clark appears, from his letter of 29 August 2000, to approach the matter of Nazmena's dependency on a wrong basis. It is hardly surprising in these circumstances that, as the judge held, his decision letter was insufficiently reasoned on any other basis. His mind was primarily directed to the very short remaining period during which Nazmena could, on his erroneous interpretation of the code, remain a dependent. The judge was, however, understandably (and rightly, in my view) sceptical about subsequent attempts by Mr Clark to justify his decision on different grounds relating to the period between Nazmena's 18th and 19th birthdays. Further, as I said, the judge found that Mr Clark mistook Nazmena's plans for that period and misrepresented them in his letter.
10. It is submitted that the judge was wrong in these respects, but it seems to me that any challenges to his decision on these scores can raise no important point of principle or practice, and there is no compelling reason to hear it. Indeed, I would also say that it would have no real prospect of success. It seems to me that if the officer, Mr Clark, had been directing his mind to any position after 18 September 2000, he would have approached the matter differently. He would have investigated it further and he would have been bound to have given fuller and more comprehensive reasons for any grounds for refusing to recognise dependency at all.
11. It has been submitted in the skeleton by Miss Bretherton that it was a matter of discretion whether to admit a dependency. The code of practice is certainly couched in terms which use the word "may", but I would not accept that it is a matter of uncontrolled discretion. It seems to me that it would have to be a matter of rational decision and, on the face of it, once the position was correctly approached (on a correct interpretation of the code of practice and in the light of the information which the judge thought was available, or should have been available, to Mr Clark) it would seem to me that the decision which the judge arrived at was one which was almost certainly bound to result.
12. However that may be, as I say, it seems to me that any challenges to the judge's decision raise no possible ground for a second appeal. I would therefore dismiss this renewed application.
13. LORD JUSTICE SIMON BROWN: I agree. When initially I refused permission to appeal on the documents on 20 February 2001 I said this:

"I think the only way the (second) review decision of 29 August 2000 can be explained is on the basis that Mr Clark understood the reference in paragraph 14.2 of the code to 'all children aged 16-18' as a reference to children between their 16th birthday and their 18th birthday rather than, as the judge held. . . up to their 19th birthday. As, however, I think the judge was clearly right about that, I do not give permission to appeal (as otherwise I would) on this point.

There is certainly no other 'important point of principle or practice' or 'other compelling reason' in the case such as to permit a second tier appeal here under s 55 of the Access to Justice Act 1999."

14. Despite Miss Bretherton's submissions this morning, and her reference to a passage in the judgment of Nourse LJ in R v Kensington and Chelsea Royal Borough Council ex parte Amarfio (1995) 27 HLR 543, 545, which I need not cite, I remain of that view. It is perfectly obvious that the Court of Appeal in Amarfio could not have been addressed on the critical question at issue here: the child in that case was 16 years of age; not, as here, an 18-year-old. The application accordingly fails.
ORDER: Application refused