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 ORDER OF HIS HONOUR JUDGE OPPENHEIMER
(Brentford County Court)

		Royal Courts of Justice Strand London WC2 Tuesday, 23rd April 2002

1. LORD JUSTICE BUXTON: This is yet another appeal to come before this court arising out of Section 204 of the Housing Act 1996. As is well known, by that section Parliament conferred upon the generality of circuit judges the obligation to consider questions of a judicial review nature arising out of decisions on housing matters by local authorities. That is an obligation that falls only on a comparatively limited number of judges of the High Court; Parliament has entrusted it to County Court judges generally. On this occasion that burden fell on His Honour Judge Oppenheimer.
2. The decision contested is a decision of the respondent London Borough of Ealing upheld by its Review Panel constituted under the 1996 Act that when Mr Goodger applied to Ealing for accommodation as a homeless person he was not qualified for the whole of 1996 Act rights because he was regarded by Ealing as being intentionally homeless. There were many and varied grounds of complaint made to the County Court in respect of Ealing's handling of the matter and, more particularly, the decision of its Review Panel. As the judge said, they were probably most of the grounds in the book. But the judge fastened on one particular question, that of procedural unfairness: the unfairness in his view being that Mr Goodger's housing file held by the local authority was only produced to him and those advising him some five or six working days before the review hearing, which hearing is conducted on paper and thus requires such submissions as are going to be made to be made in writing in advance of that hearing. That very short period during which Mr Goodger and his representatives have had the file was despite the fact that there had been several previous requests by Mr Goodger's solicitors, it is fair to say with an increasing degree of insistence, for a sight of that file. None of these requests were responded to by Ealing save by eventually simply handing the file over. The judge held (page 6 C of his judgment, page 65 of our bundle):

"I hold that the failure of the Borough to give sufficient time for representations was a piece of procedural unfairness sufficient to vitiate the review decision, given the history of the matter."

3. The judge then went on to consider what remedy the court should provide.
4. There was some argument earlier in the history of this appeal though not before us today as to the ambit of Section 204 (3) of the 1996 Act, but we do not need to address that question because the judge was quite clear that he reached his conclusion on remedy not on a basis of jurisdiction but on the basis of his view of the facts of this case. He said (page 6 G):

"I decide [the case] on the basis that it would be quite unfair to allow the decision of the Borough to stand."

5. The judge then referred to an argument advanced by counsel for the Borough that the local authority's decision was in any eventinevitable and therefore it would not be right, even though the judge had found a breach of natural justice, to issue any relief. Of that the judge said (page 7 C):

"My view is that that is not something I am prepared to embark upon. This court has not been asked to look at the housing file in detail in order to try to see whether the Borough is or is not likely to come to the inevitable conclusion that this man is intentionally homeless and that therefore, upon a further review, he would be bound to fail.

This matter looks unfair because the appellant has been deprived of something to which he is entitled. He may make submissions to the Borough which may appeal not only to the issue of law of intentional homelessness, but may make them exercise their discretion in a benevolent direction or may not. I could not possibly predict the outcome of further representations. The whole unfairness is that the appellant has not had, through his solicitors and counsel, sufficient time to consider the file and make representations before the review decision was given."

6. In considering the judge's judgment and approach in the context of this case, it is important to bear in mind that the principles of public law and, more particularly, the requirements of disclosure and of opportunities for representation are not to be approached in a mechanistic fashion. The requirements of fairness and how they shall be put into practice vary according to the issue that is under scrutiny. The first task for a court exercising a judicial review jurisdiction or one akin to it, which is what the judge was exercising in this case, is to identify the decision said to be undermined by the lack of fairness and to ask what fairness in fact required in respect of that specific decision. The judge did not approach the matter in that way. He was led into treating the failure to produce the file as conclusive in itself of an error of public law; or, alternatively, to view the failure to produce the file sufficiently early as conclusive in itself, without identifying the issue before the Review Panel and the respect in which the perceived unfairness undermined the decision upon that issue.
7. I should emphasise that that formulation is not the same as saying that the court should consider whether an admitted breach of the rules of natural justice has, in any event, made any difference to the decision; although failure to have regard to that principle may produce a result such as that which occurred in this case, where the decision was quashed even though, for reasons I shall develop, there is no conceivable way in which it could have been taken differently even if the alleged breach of natural justice had not occurred. Rather, it is a question of looking realistically at what the rules of natural justice require in the context of the particular decision that the decision-maker has in hand. This all becomes clear if one looks at the history of this particular case.
8. At some date in 1990 Mr Goodger became the tenant of 86D Dukes Avenue within the London Borough of Hounslow. In 1995 a lady called Miss Bingham moved into those premises with him. We know, by way of evidence, not much more than that. Also in 1995, most unfortunately, he was diagnosed as suffering from hepatitis C. In 1997 he was prosecuted in the Crown Court for possessing cannabis with intent to supply. He pleaded guilty to that charge. We know really nothing about the details of it save that it appears that he was sentenced to a six-year custodial sentence against which he either did not appeal or the appeal was unsuccessful. In view of what has been said in the course of the hearing today, I should perhaps emphasise at this stage that this court is concerned in relation to that sentence only in respect of its factual or causal impact upon Mr Goodger's housing situation and what thereafter occurred. The court does not take an adverse view of him in the context of these proceedings simply for that conviction, serious though it must have been for so substantial a sentence to have been passed on a guilty plea. It appears that the London Borough of Hounslow, his landlords, either were not aware of that event or administratively failed to take any action in respect of it. Miss Bingham continued to pay the rent on Dukes Avenue and to reside there, as we understand it, while Mr Goodger was in prison. However his absence, and the reason for it, came to attention of Hounslow. In July 1999, while he was still in prison, a possession order was obtained in respect of Dukes Avenue, the grounds no doubt being that Mr Goodger had been in breach of covenant: because, as it appears, his dealing in cannabis or (strictly speaking) his possession with intent to supply had taken place from the premises. In July 2000 he was released to a bail hostel or similar premises in Ealing.
9. In November 2000 he applied to the Ealing London Borough Council as a homeless person. The original position taken by Ealing was that Mr Goodger was not in priority need. A review of that decision was sought by the solicitors who have acted for him throughout his dealings with Ealing. In the course of seeking a review of the decision that he was not in priority need the solicitors made a first request for a copy of the housing file on 1st February 2001, saying that they wished to look at it before final representations were made. In the middle of February Mr Goodger was interviewed by housing officers from Ealing in respect of his application.
10. On 22nd March 2001 the council took a decision on the case, directing it to Mr Goodger, and not having responded to the solicitor's request for a copy of the file. First, Ealing accepted then that Mr Goodger had a priority need. Secondly, however, Ealing stated its finding that he had become homeless intentionally because he had been evicted from his previous council flat by breaching his tenancy agreement, that state of affairs falling under Section 191 (1) of the Housing Act. The council set out in that letter that Mr Goodger in his interview with them had admitted that conviction and admitted using his dwelling house for that criminal purpose, but that he had stated that he was a reformed person and had asked in that interview that the council should take a lenient view of his case. The council officer writing the letter went on as follows: (page 22)

"However, the Council has a statutory obligation to consider the circumstances of your homelessness and to make a determination in accordance with the material facts of your case. The Council is satisfied that your action was deliberate being fully aware of your action, which resulted in the loss of your accommodation."

11. A formal statement in respect of one of the terms of Section 191 - not particularly apt in this case - follows. The letter then said:

"The Council has also taken into account the general housing circumstances prevailing within the Borough of Ealing and in particular, the chronic shortage of housing available to this Council to meet both its statutory and non-statutory duties.

As a result of this decision, the Council accepts no legal responsibility under the provisions of the above Act to secure accommodation for you."

12. Mr Goodger's solicitors wrote on 6th April asking for the file again and said further representation would be made on the receipt of the file. Ealing wrote back acknowledging receipt of that letter and saying a review would be held on 17th May 2001. As we have seen, the file came into the hands of solicitors on 8th May and they did not, from that period until 17th May, ask for any extension of time or change of the date of the 17th May review.
13. By that decision of 22nd March Ealing had determined, first, that Mr Goodger had priority need and, secondly, he was intentionally homeless because of the eviction from 86D Dukes Avenue. The only issue for review therefore was the question of intentional homelessness. That turned on two questions of fact. First, was Mr Goodger evicted? And, secondly, was the reason for the eviction something deliberately done by Mr Goodger in terms of Section 191 (1) of the Housing Act 1996? Those questions, as posed, answer themselves by reference to the eviction having been because of the criminal conviction. Mr Goodger's representatives said earlier in the proceedings that they wished to argue that a suspended possession order might have been more appropriate or could have been expected to be imposed and, secondly, that Miss Bingham continued to have rights of occupation. They made those two points clear to the person conducting the review on behalf of Ealing in a letter of 6th April 2001 in the following terms (page 25 of our bundle):

"So far as concerns the review we are advising our client that there is additional information which should be submitted to you concerning the possession proceedings as we are of the opinion that he has a reasonable chance of showing the authority that in fact the loss of his home followed an unfortunate set of events leading to the possession proceedings which might have been successfully defended by his then partner who was living in the property, paying the rent and had property rights by virtue of the Family Law Act 1996.

We shall submit further representations with regard to the s.184 decision once you have provided us with our client's file as requested on 2nd February 2001. As you are aware you must provide this in accordance with the Data Protection Act 1998 and we ask that you do so as soon as possible because to fail to [do] so would infringe our client's right to a fair hearing. Clearly he should have an opportunity to consider the evidence before submitting further information and before any review decision is reached."

14. Ealing were reminded that payment had been made for the housing file on 2nd February but it had not been received.
15. As to those arguments that Mr Goodger's representative claimed to assert as relevant to the hearing and to the decision as to intentional homelessness, I would venture to comment as follows. First, the first argument seems extremely optimistic in view of the very serious offence committed on the premises. Secondly, even if the rights of Miss Bingham had been asserted at the time in connection with the possession proceedings (which, as I understand it, they were not), it is difficult to see how that could justify the retention of the tenancy by and in the name of Mr Goodger.
16. All that was in any event irrelevant to Ealing's task and duty. Ealing had to decide what in fact had happened, not what might have happened if Hounslow or the court to which Hounslow applied had taken a different view of the matter. On that basis there was only one conclusion to which Ealing, in my view, could have come: as they set out in their letter of 22nd March 2001.
17. Before us today Miss Bretherton, on behalf of Mr Goodger, has said that in fact the matter went a good deal further than appears from the papers. Mr Goodger's explanation of what his solicitors had described as an unfortunate set of events leading to possession proceedings was that he had committed the criminal offence under duress, the duress apparently being particularly directed at a then young child of his family. He would have wished, and his solicitors would have wished, to make that representation to Ealing apparently to demonstrate, as I understand it, that his giving up the premises was not intentional at all because he had committed the offence of supplying the cannabis under duress, and, Miss Bretherton says that Mr Goodger was prevented from making those submissions to Ealing because of the absence of the file. Even though I think it is admitted and if not admitted it is certainly the case, there would, almost beyond peradventure, be nothing in the file that could improve on what Mr Goodger's solicitors could have said on instructions from him in respect of these incidents, the view taken by the solicitors was that all available arguments -not just this very important argument but any other argument that happened to be available on the basis of the file - should all be put together at the same time, and that they would not therefore put forward the argument about the defence of duress until they had the file.
18. There are a number of difficulties about that. I do not intend to descend into what the implications would have been for the intentionality or otherwise of Mr Goodger's giving up possession of his premises simply by reason of the fact that he could adduce a defence of duress in the criminal proceedings, a defence which does not prevent the acts of the offender having been done intentionally. I pass that over. We heard no argument about it. More to the point is this, that it is self-evident from the account I have given, and was, as I understand it, agreed, that that argument could have been put to Ealing at any time. It did not need the file. The solicitors may have decided for good or ill to put all matters together, as they thought, at the same time. But the fact is that the argument was never put. The fact that it was not put had, in my view, no logical connection at all, and certainly no connection that should be laid at the door of Ealing, with the fact that the file had not been produced. Further, even if the argument had been put, it is of course conspicuously the case that this defence of duress was not asserted in the criminal proceedings. And as I understand it, it was not put before the County Court on possession proceedings as some sort of explanation as to why Mr Goodger found himself in a difficult position.
19. In those circumstances, granted that the only question for Ealing was whether Mr Goodger had been intentionally homeless and granted that the evidence or basis of that conclusion was simply and only the criminal proceedings followed by the County Court proceedings, I do not, for my part, see how - even if that argument had been adduced in the light of the view taken by Ealing generally as set out in its letter - it could have had any effect on their conclusion as to intentional homelessness. What is clear beyond peradventure is that the absence of the file and the alleged unfairness on Ealing's part did not preclude Mr Goodger from making that argument to them had he been so minded. I would not be prepared to find that there had been a breach of natural justice on the basis that an argument that was available but that was not put would otherwise have been made if an irrelevant (for this purpose) handing over the file had taken place.
20. That is the review decision. As I have said, no application was made for it to be postponed while the file was perused. On 22nd May the solicitors wrote and asked for the review period to be extended. That request was not granted. We have no indication in this case, nor has it ever been suggested, what there was in this file that would have assisted Mr Goodger had he had it earlier. If there were matters of mitigation - such as that which I have referred to in some detail because it is a new point taken in this court - they were already known to Mr Goodger. There was, in practice, no likelihood of those matters of mitigation being acted on by Ealing in view of what they had said as to the chronic shortage of housing they already suffer in coping with cases where they are obliged to provide housing.
21. For that reason, I am unable to agree with what the judge said at page 7 D of his judgment, the passage I have already quoted. When the judge said that he could not possibly predict the outcome of further representations, as it seems to me there were no representations that could have taken away the fact of intentional homelessness, which is the decision complained of; and other representations, not specified, could have been made without access to the file. Granted therefore the limited value of the file, I would not hold that in the circumstances of this case the decision was rendered unfair by reason of the fact that the file was only in the solicitor's hands for that comparatively short period before the hearing. It would have been a great deal better if, on receipt of the solicitor's request for the file, Ealing had done one or other or possibly both of two things: either simply to hand the file over, as they eventually did; or, alternatively, to ask the solicitors why they wanted it, pointing out, as Ealing would have been perfectly correct in pointing out once they set out their position in the letter of 22nd March, that there would be nothing in the file relevant to the issue before them, that is to say, the issue of intentional homelessness.
22. I am therefore constrained to say that in this case the judge did not ask himself a sufficiently specific question. He should have been guided by the authorities on fairness in the context of disclosure, one of which is conveniently cited in the skeleton before us. In Crown v Secretary of State for the Home Department ex parte Doody [1994] 1 AC 531 Lord Mustill said at page 560 G:

"Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer."

23. Mr Goodger knew not only the gist of the case he had to answer but the full detail of all that was put against him, and he had no relevant answer. Once the solicitors had the file and once they had determined or realised that intentional homelessness was the only issue in this case they, in my view, did have time, not to scrutinise the whole file - because it was extremely unlikely there was anything in it that would assist them - but at least to look at it to make sure there was nothing in it that affected the point they wished to make about intentional homelessness. The fairness of deciding the question of intentional homelessness in the way that they did could not, in my view, be affected by the circumstances of the eviction and thus by anything in fact that was in the file. The arguments to the contrary to which I have referred, which are said to be reasons for seeing the file, are, in my view, misconceived.
24. There was not therefore, in my judgement, a failure in this case to give adequate access to the file once the context and reasons for that access is understood. Even on the assumption there was such unfairness in form that did not, in my view, render the hearing of the Panel with regard to the question of intentional homelessness, which is the question they decided, unfair, and thus it forms no basis for quashing this decision.
25. Miss Bretherton says that is not the end of the matter. As we have seen earlier in this judgment, a number of other reasons were adduced other than absence of the file why the local authority's decision should not be upset. She said those are set out in her grounds of appeal to the County Court and should be reviewed even if the reason of the judge focused on is not well founded.
26. I am not persuaded by any of those. Insofar as they add anything to what has already been said, the first complaint is that Ealing failed to carry out any adequate inquiries into (a) why Hounslow sought possession of the premises or (b) as to rights of occupation of Miss Bingham. I entirely accept that Ealing carried out no inquiries at all in these matters, or at least I am prepared to assume that. For reasons already set out in this judgment, they did not need to do so, because those matters, so far as they were relevant to this case, had been determined, and conclusively determined, either by decision or by omission on the part of Mr Goodger in the previous County Court proceedings. It is also complained that inadequate account was taken of certain authorities under the Human Rights Act 1998, more particularly, concerning double punishment. What has happened to Mr Goodger is not second punishment for committing his original offence of possessing cannabis. It is a logical and inevitable result of that act in the context of his housing arrangements, as set out in Section 191 of the Housing Act. Further, it is complained that Ealing should have taken account of authorities under the Housing Act in respect of possession on the grounds of nuisance which suggested that a suspended order might have been appropriate. That was not a matter for Ealing at all. All that was - to use an old-fashioned lawyers' expression - behind the curtain, in the sense that those decisions had been made for good or ill by the County Court to which Hounslow had recourse, and Ealing was not only entitled but obliged to take those matters as a fact.
27. I therefore cannot agree that there is any point - indeed, any justification - in remitting those questions to the County Court. I note Miss Bretherton's point that, in principle, Mr Goodger would be entitled to the view of the County Court judge on those matters before they came to us. But since it is, in my judgement, absolutely clear that in the light of the guidance given in this judgment today as to the nature and approach to this case the County Court judge could come to no conclusion other than not to accept those matters, I can see no justification for remitting them to him.
28. The final point is this. If this decision is not quashed it must be in any event remitted for further consideration. But any further consideration of this decision, for the reasons I have indicated, is bound to reach the conclusion I have indicated as correct. I see therefore no point whatsoever in doing anything other than simply to reverse the decision of the County Court judge and to reinstate the decision taken by the Review Panel in its decision of 17th May. On that basis, and for reasons I have indicated, I allow this appeal.
29. MR JUSTICE JACKSON: I agree with the judgment which my Lord has just delivered. The respondent was evicted from his former accommodation because he had committed a serious drugs offence at those premises, for which he had been sentenced to six years' imprisonment. On the basis of those facts the decision reached by the appellant's Review Panel on 17th May 2001, namely that the respondent had become intentionally homeless, was the only possible decision which could be reached. Nothing which the housing file might contain could affect the correctness of that decision. In those circumstances the appellant's delay in handing over the file could not form the basis of a successful appeal to the County Court under Section 204 of the Housing Act 1996.
30. Accordingly, the decision of the judge in Brentford County Court cannot stand and this appeal must be allowed.
31. LORD JUSTICE BUXTON: The appeal is allowed for the reasons given.
Order: Appeal allowed