England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(Mr Justice Dyson)

		Royal Courts of Justice Strand London WC2 Monday, 29th January 2001

1. LORD JUSTICE BUXTON: This is an application by Mr Oyekan for permission to appeal from an order made by Mr Justice Dyson on 3rd August 2000. Mr Oyekan sought permission to apply for judicial review of various decisions of the London Borough of Merton ("Merton") and Westminster City Council ("Westminster").
2. The application was originally before Lord Justice Ward, who expressed some concern about one aspect of it (to which I shall come shortly) and instructed the two respondents, Merton and Westminster, to appear by counsel on the renewed application. A certain amount of correspondence then took place in order to find a date suitable for everybody. Today's date was chosen and notified to Mr Oyekan.
3. When the application was called on at 10.30am today Mr Oyekan was not present and he had not, by that time, notified the court as to any difficulty of attendance. Having given him 15 minutes' grace, I ordered the application to be called on. I then dismissed it for non-attendance and awarded costs of the day to Westminster and Merton.
4. During the course of the morning I was informed that Mr Oyekan had telephoned the List Office at approximately 10.50am, saying that because of a medical condition he was not able to attend at the appropriate time but proposed to be here later in the morning. As it so happens, he did arrive in court at about 11.30am, or possibly shortly before that. By a fortunate chance, I had completed the case I was then hearing by something like 11.40am. I therefore invited Mr Oyekan, who was still in court, to make an application to me to set aside my order earlier in the day.
5. As a result, Mr Oyekan has addressed me on the substance of the matter for some forty minutes. I would point out, in passing, that that is a period of time substantially longer than he would have been allowed had he moved the original application. In the circumstances, I shall not take time considering Mr Oyekan's failure to attend, though it is unfortunate that he did not notify the court in time as to that failure. I will deal with the substance of the matter.
6. The matter goes back to February 2000, when Mr Oyekan, who suffers from mobility problems, was admitted to bed and breakfast accommodation by Merton as a case of priority need. Mr Oyekan's appropriate payment for the accommodation, over and above housing benefit costs, was £8.80 a week. That charge was imposed pursuant to section 206(2) of the Housing Act 1996. In February 2000 Mr Oyekan tendered a cheque drawn on a Barclays business account as payment of the accommodation charges. That alerted the officers of Merton as to whether they had full details of Mr Oyekan's finances and, in order to review the question of reasonable charge, they required him to provide information about that account. He declined to do so.
7. In explanation to me today, Mr Oyekan claims it to be the law that, once a person is in receipt of income support, further inquiries into his finances and entitlement are inappropriate. That contention seems to me not to be correct. Although the receipt of housing benefit has connections with income support, it does not preclude a local authority from conducting its own independent inquiries if a matter comes to its attention which suggests that it does not have the full picture of the financial situation.
8. Because Mr Oyekan would not give further information, Merton determined that the proper charge should be, not £8.80, but £50. That was of course an arbitrary amount, but it was one that was no doubt fixed in the hope of getting to the bottom of what the actual financial position was. Mr Oyekan did not pay that amount and fell into arrears. Merton, because of those arrears, cancelled the accommodation. He was told that he must vacate the premises on 20th March 2000. What happened thereafter is a matter of dispute. I shall come back to it.
9. On 3rd April Mr Oyekan applied to Westminster to be treated as a homeless person. Westminster refused, saying that he had made a prior application to Merton and back to Merton he must go. It is accepted that Westminster were wrong in law in taking that attitude because under section 188 of the 1996 Act they had a duty to consider the applicant's eligibility for temporary accommodation "irrespective of any possibility of referral of the applicant's case to another local housing authority". They therefore should have considered the matter when Mr Oyekan applied to them.
10. Not having received satisfaction from Westminster, Mr Oyekan commenced proceedings, complaining: (1) of Westminster's decision, as I have already mentioned; (2) of pain, suffering and loss that had been occasioned to him by that decision; (3) of the charge demanded by Merton; and (4) of the failure by Merton to discharge their duty under section 211 of the Housing Act 1996 to safeguard Mr Oyekan's property when he left the accommodation in which they had placed him.
11. Before Mr Justice Dyson the London Borough of Westminster accepted, as I have said, that they had been in error in their letter of 4th April. But they said that if Mr Oyekan had raised the legal position with them directly rather than going to court they would indeed then have dealt with the matter on the proper basis. They repeated before the judge, as they had repeated before, an offer so to do. In those circumstances the judge considered (and in my judgement he was within his discretion so to consider) that it would not be appropriate to pursue judicial review proceedings against Westminster in view of the offer that they had made. He did not deal directly or specifically with the claim for damages but, once the substantive matter had disappeared, it would be inappropriate for that claim to be pursued in judicial review proceedings. The matter against Westminster, therefore, was correctly dismissed by Mr Justice Dyson and there is no prospect of the Court of Appeal going behind that.
12. So far as Merton is concerned, the first question was the assessment of the £50 a week. Mr Justice Dyson took the view that the sum of £50 in the circumstances was a reasonable sum to be posited as, if one likes, a starting point, the judge pointing out that it was less than one third of the total cost to Merton of the accommodation, which was £175. In those circumstances the judge did not think that Merton had erred in law in taking that step. He no doubt had in mind (I think he did not say specifically) that if Mr Oyekan wished to put the matter right, he only had to do what Merton had reasonably asked him to do - that is to say, make a proper disclosure of the finances that he was operating through what appeared to be a business account on his own behalf. The judge was right, therefore, to say that Merton did not err in that respect.
13. The third matter is something that the judge did not deal with, and that is why Lord Justice Ward expressed some concern. When Mr Oyekan was told to leave with effect from 20th March, he wrote a letter to Merton on that same day (clearly being aware, so far as I can see, of the legal position), saying:

"... I have no possible means of securing the safety and removal of my possessions at this hotel as required by the management and the London Borough of Merton. These include ..."

14. He then set out a list of what appears to be extremely sophisticated computer equipment and matters of that nature, which he valued at over £3,000, and further software, CDs and WordPerfect 8 computer programmes valued at over a further £2,000. He added that there were a number of personal effects stored in two bags, together with some cooking equipment. He went on to say:

"The manager of this bed and breakfast hotel has informed me that he is anxious to be on good terms with this local housing authority and that he is bound to comply with its instructions. Accordingly, he intends to throw out all my aforesaid possessions in the room. Please be assured that I will sue for any loss or damage or lack of access to my possessions, as I do intend to leave everything in situ."

15. Merton do not appear to have reacted to that letter. Nor, it should be noted, did Mr Oyekan react by approaching the court for assistance. He did not do that until some three months later. However that may be, he now complains that Merton failed to exercise its obligation under section 211 of the Housing Act, which provides that:

"... where a local authority have reason to believe that

(a)there is danger of loss of, or damage to, any personal property of an applicant by reason of his inability to protect it or deal with it, and

(b)no other suitable arrangements have been or are being made", they have a duty to take reasonable steps to prevent the loss of the property or prevent or mitigate the damage to it.

16. Mr Oyekan's case appears to be that Merton should have taken the property into custody. He has no idea what has happened to the property. He appears to have made no inquiries about it since. It will be noted that he wrote the letter on 20th March 2000. In paragraph 49 of his affidavit in support of these proceedings, sworn on 20th June, he said:

"I was informed by the management of the bed and breakfast hotel on 20 March 2000 that I was required to vacate the room immediately as the first proposed Respondent [Merton] had informed them of the cancellation of the booking for my room that morning. I sought a delay by paying £75 for 3 additional nights whilst I tried to make suitable arrangements for the removal and storage of my possessions, including a high specification multimedia computer workstation."

17. He produced his receipt for the three additional nights. He then continued:

"Unfortunately, I was unable to find affordable removal expenses and a suitable affordable storage at such short notice. My possessions were removed from the room and disposed of and the room was let out to someone else."

18. When I asked him who removed the possessions from the room and disposed of them, he was not able to tell me. That appears to have been assumption on his part.
19. As I have said, it does not appear that this matter formed any significant part of the proceedings before Mr Justice Dyson. At least, that judge did not deal with it. Having been required by Lord Justice Ward to address the matter, Merton have now filed further evidence from a Mr Stephen Frederick Langley, who was the deponent on their behalf in the proceedings originally and is the chief lettings officer. He deposes, from records which I have no reason to think were not contemporaneous records, that Mr Oyekan had complained on 16th February about the size of the room allocated to him. He complained that the room was too small for what he then appears to have described as his "gym equipment". That may well be the equipment that he uses to assist in his back trouble. He was told then that he could be provided with storage which, however, he would be required to pay for. The matter does not seem to have been pursued.
20. Mr Langley also made enquiries of the management of the hotel, who denied to Mr Langley that the computer was left in the room and said that their practice would be to inform the respondent if that in fact happened. Mr Langley also spoke to a Mr Kennedy, a worker at the hotel, who said that he remembered Mr Oyekan calling a cab and putting all his belongings, including a computer, into the cab. Mr Kennedy declined to give any witness statement to that effect. Mr Oyekan tells me that he has contacted Mr Kennedy since receiving this evidence and Mr Kennedy says that he did not in fact remember Mr Oyekan doing that and, indeed, seems to suggest that he had not spoken to Mr Langley at all.
21. Whatever may be the rights or wrongs of that latter point, it seems to me that the evidence is clear that an opportunity for storage was made available to Mr Oyekan. I do not think that it is the responsibility of a local authority to homeless persons to provide accommodation suitable for, or to provide free storage for, equipment of the nature, complexity and value that Mr Oyekan sets out in his letter. It seems to me that, when the Act is talking about personal possessions, it is talking about something a good deal closer to what might be expected to be the normal equipment of a household than that which is dealt with here.
22. However that may be, I am quite certain, in the state of this case as it stands, that it is not an appropriate matter to be pursued by way of judicial review. There is obviously a serious factual dispute, not improved by the fact that complaint was not made until some time after the events occurred, and it is simply not, in my judgement, a matter suitable for pursuit in a judicial review court. Whether or not Mr Oyekan has some other complaint which he can pursue elsewhere is not a matter for me, but I do not think that these proceedings are a suitable locale for that dispute to be pursued, in view of the explanation now given by Merton. I therefore do not give permission for this application to go forward.
23. As a result of that, the order that I made this morning stands and is not set aside.
Order: application dismissed; costs of today awarded to the respondents.