England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM DUDLEY COUNTY COURT
(HIS HONOUR JUDGE PEARCE-HIGGINS QC)

		Royal Courts of Justice Strand, London, WC2A 2LL
		25th April 2007

Lord Justice Maurice Kay:

1. In early 2006 the appellant, Michaela Rowley, and her partner Alan Taylor were living in Dartford, in Kent, in private sector rented accommodation. She was pregnant. They moved out of that accommodation on 2 February 2006. On 21 February they approached Rugby Borough Council on the basis that they were homeless persons in need of assistance. On 9 March they completed an application form in which they explained their homelessness and their need for accommodation. They referred to the reason why they were homeless as "landlord wanted property back". They detailed these circumstances:

"We lived at 264 Phoenix Place, Dartford, Kent, [sic] the landlord told us at Christmas he wanted to sell the property [sic] we told him we were thinking of moving. He then said he was wanting us out by the end of February, but didn't give any written notice.

We then decided that we would move to Rugby to be near Alan's brothers because Alan suffers from Graves disease and needs family around him. I am pregnant and need family close to me but I do not get on with my own family.

We could not stay with Alan's brothers because it would be overcrowded.

At present, Alan has been taking Subutex to control his drug addiction."

On 14 March, a housing officer telephoned the former landlord in Kent. The file note of the conversation reads as follows:

"Asked if he had given notice to Mr Taylor & Miss Rowley, he replied no that they had said they were leaving, he had previously mentioned that he may wanted [sic] the property back in the future but had not done anything about it."

Lower down on the file note, someone has added in manuscript "Mr Taylor gave four weeks' notice".

2. A week after that telephone conversation on 21 March, the same housing officer wrote to Miss Rowley and Mr Taylor in these terms:

"I am writing to confirm the information that you gave and also to detail any additional information gathered through our investigations into your homelessness case. It is as follows:

That you gave up your tenancy 264 Phoenix Place, Dartford, Kent, you were not given any written notice to leave [sic] your landlord had verbally told you that he was thinking of selling.

That your reason to move to Rugby is to be near to Alan's brothers because Alan has Graves disease.

Michaela is pregnant and your intention was to be near to family because Michaela does not have a good relationship with her own family.

"If there is any further information that you wish to be considered or you dispute the above facts, please contact me in writing within seven days.

If you agree with the facts of the case as outlined above, please return the tear off slip to the Housing Department within seven days. Once agreement of the facts has been reached a decision on you [sic] case will be made."

The tear-off slip was signed by Miss Rowley and Mr Taylor two days later on 23 March. By so signing, they were stating their agreement "with the facts of my case as outlined to me in writing by Rugby Borough Council".

3. On the basis of the information she had received, on 30 March the housing officer decided that Miss Rowley and Mr Taylor were homeless and in priority need within the meaning of part 7 of the Housing Act 1996. However, she refused the application for permanent accommodation because she concluded that they were intentionally homeless. She gave the following reasons for that decision:

"That you gave up your tenancy of 264 Phoenix Place … which was reasonable for you to reside in as a secure tenant. That you did not secure reasonable accommodation before moving to Rugby, this resulted in you making yourself intentionally homeless.

You were given the opportunity to provide further information, or dispute the facts that were used to make this decision.

You signed to confirm that you did agree with the information and facts.

As you are intentionally homeless, the Council will not be providing you with permanent accommodation."

Miss Rowley and Mr Taylor then requested a review pursuant to Section 202 of the 1996 Act. On 13 April the Council wrote asking for any further relevant information but no reply was forthcoming. The reviewer did not invite them to attend a meeting or attend an oral hearing, although one had been requested. The outcome of the review was communicated in a letter dated 27 April. The original decision was upheld and the following reasons were given:

"You had a tenancy of 264 Phoenix Place that started in April 2005 and was continuing. The tenancy agreement required the landlord to give 2 months' written notice to terminate the agreement. This notice had not been given.

You gave the landlord one month's notice to quit the property, having decided you were coming to Rugby to be nearer your relatives.

You had not made any arrangements for accommodation in Rugby but applied to the Council as homeless.

The Code of Guidance, dealing with Intentional Homelessness, states that the homelessness must be the consequence of a deliberate act or omission. It further states that it should be reasonable for the person to continue to occupy the property.

Having examined all the facts in this case, I find that you did deliberately act to give up the tenancy of a property it would have been reasonable for you to continue to occupy. You have offered no information to suggest that there is any other explanation for your actions."

In due course, Miss Rowley appealed to the county court, pursuant to Section 204. On 22 June HHJ Bellamy refused an application for interim accommodation and on 2 September HHJ Pearce-Higgins QC dismissed the substantive appeal.

4. The case now comes before this court as a second appeal, for which Neuberger LJ, as he then was, refused permission on papers, but Arden LJ granted permission following an oral hearing.
5. It is necessary to refer to some of the provisions of the 1996 Act. By Section 193, the local housing authority has a duty to secure that accommodation is available for occupation by applicants who are homeless and in priority need, but the same duty does not arise if the homelessness arose intentionally. Section 191 then provides:

"(1) A person becomes homeless intentionally if he deliberately does or fails to do anything in consequence of which he ceases to occupy accommodation which is available for his occupation and which it would have been reasonable for him to continue to occupy."

6. The primary decision of a local housing authority on these issues is made and communicated pursuant to Section 184. The right to request a review is provided for by Section 202. By Section 203, the Secretary of State may make provision by regulations as to the procedure to be followed in connection with a review and, in particular, provision may be made "as to the circumstances in which the applicant is entitled to an oral hearing and whether and by whom he may be represented at such a hearing" (see section 203(2)(b))
7. Pursuant to that regulation making power, the Secretary of State has promulgated the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999. Regulation 8 states:

"(1) The reviewer shall … consider:

…

(b) any representations made under paragraph (2) below.

(2) If the reviewer considers that there is a deficiency or irregularity in the original decision, or in the manner in which it was made, but is minded nonetheless to make a decision which is against the interests of the applicant on one or more issues, the reviewer shall notify the applicant:

(a) that the reviewer is so minded and the reasons why; and

(b) that the applicant, or someone acting on his behalf, may make representations to the reviewer orally or in writing or both orally and in writing."

Section 204 of the 1996 Act, which is headed "Right of Appeal to County Court on Point of Law", provides:

"(1) If an applicant who has requested a review under section 202 –

(a) is dissatisfied with the decision on the review

…

he may appeal to the county court on any point of law arising from the decision or, as the case may be, the original decision."

The jurisdiction of the county court is essentially one of judicial review; see Runa Begum v Tower Hamlets London Borough Council [2003] UKHL 5 [2003] 2 AC 430, per Lord Bingham of Cornhill at paragraph 7.

8. I now turn to the decision of the county court in the present case. The judge dealt with a number of grounds of appeal, not all of which are relevant to our task today. Dealing with one of them, he said:

"4 … It is common ground that the Landlord in Dartford never served written notice to terminate the tenancy. At most he gave oral notice. It is the Appellant's case that she believed that she had no alternative but to leave the property in those circumstances and the Respondents failed to consider that matter in determining whether or not the Applicants were intentionally homeless and whether it was reasonable for them to remain in the rented accommodation …"

Having referred to the numerous documents in the case, the judge continued:

"6. What is apparent from those documents is that the factual basis of the complaints now made was not before the Council at the material time. Nowhere did the applicant and her partner state that they felt obliged to leave the Kent property or that they wanted to stay in that property but felt obliged to leave. The picture that was presented was that the Landlord's intimation of a desire to sell coincided with the discovery by Ms. Rowley that she was pregnant and the decision by them (for, no doubt to them, good family reasons) to move to Rugby. They all agreed that the Applicant and her partner would leave in February 2006 and they gave one month's notice to end the tenancy (which would appear to be the event which actually brought the tenancy to an end). The duty it is said that the Council was subject to and failed to discharge might have arisen had the Applicants put before the council what Ms. Rowley now alleges. But they did not …

7. In those circumstances I do not see how any complaint can be made against the Council for the decision it reached which is consistent with the facts as presented to it and which on those facts it was reasonable for it to make."

Dealing with the contention that the reviewer ought to have invited written and oral representations pursuant to regulation 8(2), the judge said:

"9 … Here the reviewer did not consider that the original decision was deficient or irregular. It had set out the reasons, albeit summarily. The reviewer confirmed the decision on the same grounds giving fuller reasons. The Applicant was given full opportunity to submit additional evidence, but did not do so. I can see no obligation to permit an oral hearing. No reason was given for one."

Finally, the judge concluded:

"13. In my judgment the decision reached by the Council was one that was open to it on the facts as they appear and as presented by the Applicant. There was no unfairness or want of procedure. There is no error of law."

9. Before this court, Mr Cottle seeks to advance grounds of appeal under two main headings. His fundamental concern is with the fact that the reviewer did not invite oral or written representations pursuant to regulation 8(2). The condition for activation of regulation 8(2) is "if the reviewer considers that there is a deficiency or irregularity in the original decision". There was a sterile debate in the skeleton arguments as to whether that is to be assessed objectively or subjectively.
10. In my judgment it is abundantly clear that the matter is one for the reviewer in the first place but that his decision is susceptible to challenge on a point of law in the county court, on grounds which conventionally would permit a judicial review; see Hall v Wandsworth London Borough Council [2004] EWCA Civ 1740, paragraph 29 per Carnwath LJ. The submission now made by Mr Cottle is that, in the present case, the reviewer ought as a matter of law to have considered that the original decision letter of 30 March was "deficient" because it failed to explain why, when the landlord had said that he wanted Miss Rowley and Mr Taylor out by the end of February, the homelessness was found to be intentional.
11. I cannot accept this submission. It is common ground that the word "deficiency" in regulation 8(2) is to be construed broadly. As Carnwath LJ said in Hall paragraph 29, it simply means "something lacking". He then added:

"29 … On the other hand, the 'something lacking' must be of sufficient importance to the fairness of the procedure to justify an extra procedural safeguard."

12. The Code of Guidance gives a non-exhaustive list of examples of relevant deficiencies and irregularities. The question for us becomes: was it wrong in law for the reviewer not to conclude that there was something lacking in the original decision which was of sufficient importance for the fairness of the proceedings to activate regulation 8(2)? In my judgment, the answer must be in the negative. Mr Cottle's argument is that, from the outset, the applicants had asserted that the reason why they were homeless was that the landlord had wanted the property back by the end of February because he wanted to sell it. The original decision letter of 30 March and the review document of 27 April did not address that assertion. Although it was at variance with the version of events put forward by the housing officer in the letter of 21 March, and Miss Rowley and Mr Taylor had indicated their assent to that version by confirming their acceptance on 23 March, the housing officer should have addressed the inconsistency and explained why she had decided to proceed on the basis of the facts as set out in the letter of 21 March.
13. The flaw in this submission is that it seeks to deny to the housing officer the right to take the acceptance of the facts set out in the letter of 21 March and its endorsement at face value. It seems to me that any implication from the account in the application form, that Miss Rowley and Mr Taylor had had no alternative but to vacate the accommodation at the behest of the landlord -- and such an implication could never have been a clear one -- was superseded when they gave their assent to the account proffered by the housing officer following the receipt of information from the landlord. I do not consider that it is now possible to invoke the vulnerability of the applicants, as a pregnant young woman and a reforming drug addict, so as to maintain that the housing officer was obliged to treat the signed acceptance of the asserted facts as something less than that. There is no question here of any manipulation or oppression on the part of the local housing authority. Thus, in my judgment, by the time the housing officer made her decision, there was no factual dispute to resolve or explain.
14. The decision letter of 30 March was not afflicted by any deficiency of reasoning. It explained that Miss Rowley and Mr Taylor had given up the tenancy without securing reasonable accommodation before moving to Rugby. It pointed out that by endorsing the letter of 21 March they were indicating their agreement with the account attributed to the landlord, namely that he had not given notice to quit but "they had said they were leaving". Eventually, in the county court, Miss Rowley was to put the case in a different way and assert that "she had no alternative" but to leave the accommodation in Kent. But neither the housing officer who made the original decision nor the reviewer had to consider the matter on that basis, notwithstanding the repeated opportunities to advance it subsequent to 21 March. On the material that was before him, it simply cannot be said that the reviewer erred by not considering that there was a deficiency in the original decision and accordingly, the additional procedural safeguard provided by regulation 8(2) never came into play.
15. As for the second ground of appeal, which is to the effect that Miss Rowley ought not to have had her endorsement of the facts set out in the letter of 21 March held against her, I find nothing in this. The housing officer had fairly placed before Miss Rowley and Mr Taylor a version of the facts for them to agree, to dispute or to supplement. They unequivocally agreed it. In those circumstances it was not unfair for the housing officer or, later, the reviewer to proceed on the basis that it was accurate. It is significant that, at two stages, upon receipt of the letters of 21 March and 13 April, Miss Rowley and Mr Taylor declined opportunities to make further representations in writing.
16. It follows from what I have said that in my view the judge in the county court was correct to hold that neither the housing officer nor the reviewer had fallen into legal error, albeit that his judgment on the regulation 8(2) point was somewhat terse. It is appropriate to record that Mr Cottle accepts that if regulation 8(2) does not arise, he cannot complain about the refusal of a meeting or oral hearing.
17. For the reasons I have given I would dismiss this appeal.

Lord Justice Wall:

18. I agree.

Lord Justice Pill:

19. I also agree.


Order: 1. Appeal dismissed.

2. The Appellant do pay the Respondent's costs of the appeal subject to a determination of the Appellant liability to pay those costs pursuant to Section 11 of the Access to Justice Act 1999, such assessed to be adjourned generally with adjourned with permission to restore.

3. There shall be a detailed assessment of the Appellant's costs pursuant to paragraph 4 of the Community Legal Services (Funding) Order 2000.