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 QUEEN'S BENCH DIVISION
(Mr Justice Grigson)

		Royal Courts of Justice Strand London WC2 Monday, 18th February 2002

Monday, 18th February 2002

1. LORD JUSTICE SEDLEY: This application for permission to appeal, which has been adjourned on more than one occasion, is made today by Miss Orhue in person. It was both her hope and the hope of the court that she would be able to be represented on this application, because it was not without its complexities. But it is plain from what she has told me today that she does not have, and has not for a long time had, the benefit of a legal aid certificate for this purpose.
2. Following the giving of judgment in her application for judicial review by Grigson J in May 2002, she obtained a fresh legal aid certificate, with effect from June 2002, for judicial review proceedings - not, I note, an appeal - limited to obtaining counsel's opinion. It may be that those judicial review proceedings were intended to strike at the further decision which Hull City Council (the respondent) had meanwhile taken and was the basis of Grigson J's decision. It may be that what was meant was an appeal. But in either case, Miss Orhue tells me, counsel's opinion was adverse, and it does not appear that her representations to the Legal Aid Board (as it then would have been, I think) succeeded in persuading them that counsel was mistaken. So, in spite of the wishes expressed by Pill and Henry LJJ, before whom this matter has been on earlier occasions, Miss Orhue comes before me today in person. She has presented her case with clarity and with courtesy. Having read the papers in full, I think I understand what her case is. Mr James Findlay also attends today on behalf of Hull City Council at the request of Henry LJ, but I have not found it necessary to call on him on the substantive issue.
3. The substantive issue in brief is this. Miss Orhue has a claim going back a decade against Hull City Council for its failure to pay directly to her housing benefit which, it is her case, was being paid to a tenant of hers who was pocketing it and not passing it on as rent, as he should have been. The Council, after a certain period of such withholding, has a power but not an obligation to pay directly to the lessor. However, such payment was never made to Miss Orhue, and the Council, at one stage anyway, was saying it had never received an application from her.
4. There are somewhat complex review and appeal mechanisms (all of them administrative) in relation to claims of this kind. But by the time the matter came before Grigson J, the Council had corrected its stance as to the applicability of some of its powers and had proceeded to make what it asserted was a sufficient determination of the matters within its competence relating to Miss Orhue's claim. Grigson J so found. He was satisfied, to quote the concluding paragraph of his judgment, that:

"... in effect the Respondents did precisely that which they had been asked to do in the initial application for judicial review."

5. In her application for permission to appeal Miss Orhue expresses dissatisfaction, not with the substance of that decision in terms of what it contains, but in terms of what it omits. She says that it omits two other things that she was asking for, namely costs and further or other relief.
6. The further or other relief, short of an order to pay the amount she was claiming, which simply was not within the competence of Grigson J or of this court, does not seem on the material before me to have any substance. It is put in there by lawyers simply in case they have forgotten something that turns out to be material.
7. The question of costs was canvassed before Grigson J in full at the conclusion of the argument. What he finally did was to make no order for costs. He did that not to shrug off the problem, but because it was accepted by counsel on both sides that costs fell to be awarded in both directions. Up to the point where the Council had changed its stance and agreed to review matters properly, it was accepted that Miss Orhue was entitled to her costs. Thereafter, it was accepted (and I stress the word "accepted") by her counsel that the local authority was entitled to its costs. That being so, it was apparent that the expense of quantifying and setting off the costs was going to be pointlessly incurred when the odds were that the two would cancel each other out. Hence the judge's order.
8. The matter which may very well have remained and have been the subject of the further application for legal aid for judicial review was the determination, which Hull had proceeded to make, to the effect that there had been no decision or determination in the first place which was now capable of being reviewed. They also held that they would have refused to reconsider the position in any event. Neither of those decisions was formally challenged, as it could have been, by appeal or application to a housing benefit review board. If it was desired to challenge them by way of judicial review instead, then it is unsurprising that legal aid was refused, since a domestic remedy was available. In any event, it is not the matter which is before me today. The fresh decision of the Council was not the subject of challenge on its intrinsic merits before Grigson J.
9. In these circumstances, the only question for me is whether there is an arguable case that the judge erred in relation to costs in point of law or erred otherwise in relation to the withholding of further or other relief.
10. For the reasons which I have given, it is not only not arguable that he did so, it is plain, in my judgment, that he did not. It was not within his power to order the Council to make the payment. That was a matter which had to be decided through the Council's own systems. There was no application before him seeking further to contest the way in which the Council had operated the mechanisms; and, as to costs, his order was not only plainly a justifiable one but, indeed, was accepted by counsel in the light of his findings.
11. It seems to me that it would be doing Miss Orhue no favours to give her permission to appeal. It would involve her in a greater bill of costs and it would not, in the light of what I have said, carry any prospect of success.
12. For those reasons I refuse permission to appeal.
Order: Application dismissed with costs summarily assessed at £1,500, not to be enforced without the leave of the court.