ON APPEAL FROM THE ADMINISTRATIVE COURT
HHJ MACKIE Q.C.
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE ETHERTON
SIR MARK POTTER
| THE QUEEN ON THE APPLICATION OF IA (By his litigant friend, the Official Solicitor)
|- and -
|THE SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT
THE LONDON BOROUGH OF WANDSWORTH
Rupert WARREN and David BLUNDELL (instructed by Treasury Solicitor) for the 1st Respondent
Matthew REED (instructed by ASB Law) for the 2nd Respondent
Hearing dates: 26th July 2011
Crown Copyright ©
Sir Mark Potter:
THE FACTUAL BACKGROUND
"51. Convention Rights are not absolute and can be interfered with if a clear public interest case is made out and the action is proportionate. In this case the public interest case is not made out and the action is not proportionate. The Appellant has taken steps to improve the property and occupies the property."
(1) There was a substantial housing need in the area and the Council was justified in seeking to bring back into use vacant and/or defective properties.
(2) The property had serious and widespread defects which clearly rendered it unsuitable for the needs of the appellant who was a registered disabled person or, indeed, for anyone else.
(3) The appellant had used the property in the past to "sleep over" on many occasions and was currently using a few rooms "as a base including a place to sleep".
(4) That if no concerted and comprehensive action were taken to restore the house it would deteriorate yet further, increasing the potential for adverse effects on the adjoining properties.
(5) The Council's proposals would provide an assurance that the property would be restored to beneficial housing use within a reasonable and identifiable period.
(6) A proposal of the appellant, produced for the first time at the inquiry, for conversion of the property into two flats, of which the appellant could occupy the ground floor, would have to be funded by other parties or agencies, the appellant having no personal funds to support the scheme.
(7) It was doubtful that the proposals were acceptable in planning terms.
(8) Various funding proposals mooted had not been applied for and were in any event unlikely to be available in any reasonable timescale.
(9) There was a real risk that the scheme proposed by the appellant could not be progressed, or progressed expeditiously, because of the uncertainties as to planning and funding.
78. On balance, it is reasonable to conclude that confirmation of the Order would affect the Appellant's right to private and family life. He has possessions at the Order property and it is the only place identified in the evidence that he could call "home", even if he is making only a very limited use of the accommodation. The Council has confirmed that if implementation of the Order had the effect of making the Appellant homeless, it would be under a duty to consider his housing needs . I find it inconceivable that under such circumstances, accommodation would not be offered to him suitable for his needs as a declared registered disabled person . In these circumstances whilst the Appellant Article 8 rights would be engaged, the outcome would not be disproportionate and there would in my view be no violation of those rights.
Article 1 of the First Protocol
79. The Appellant has the right of peaceful enjoyment of his possessions. The evidence clearly indicates that in recent years he has made only a very limited use of the Order property, whether due to his own inaction or due to the actions of others [8-9, 20, 22, 24, 26, 32-36, 44-45, 49]. Whilst he can rightly claim that his traumatic injury affected his ability to take control of the situation he has found himself in [18, 20], that does not totally explain his failure to respond effectively to action the Council was seeking to take before it made the subject Order, although I recognise that the time period between the Section 11 notice and the making of the CPO was only a few months [8-10].
80. Mr Claude Rapose maintains that there is no element of the public interest that justifies taking away the Order property from the Appellant . I disagree. Two aspects of the public interest are called into play, namely firstly the need to make full use of the Borough's housing stock in view of the level of housing need and the housing demand in the Borough, and secondly the key duty of the Council as a Housing Authority to take action to remedy Category One hazards that had been identified, of which the Order property has many . I consider that these aspects of the public interest outweigh the Appellant's Article One, First Protocol rights.
81. The Appellant would be compensated in accordance with the compensation arrangements explained in paragraphs 64 and 65 of Circular O6/2004, or in default of agreement as to the amount, on reference to the Lands Tribunal.
Overall Conclusions on the Order
82. I am satisfied that there is a compelling case in the public interest for the confirmation of the Order. The Order has been correctly made under section 17 of the Housing Act 1985. Implementation of the Order would lead to a quantitative and qualitative housing improvement, by restoring a dwelling which is at the best in very limited occupation for full residential use after restoration to a "Decent Homes" standard.
83. The Council's proposals for the Order property are much more likely to result in the restoration of the Order property and its full occupation as a dwelling house to a decent standard within a reasonable time period, than those of the Appellant. There appears to be no early prospect of the property being brought into full residential use other than by the implementation of the Order."
"I write to the court to make clear so that there is no misunderstanding that my 13 November 2009 CO/13567/2009 application made to the High Court is, as I am legally entitled under the [ALA] 1981 Section 23 (1), as I am aggrieved by the Compulsory Purchase decisions made by the SoS and LBW with regard to my home."
"This claim is totally misconceived. The challenge to the CPO should have been made under s. 23 of the Acquisition of Land Act. Wild allegations of fraud unsupported by any evidence are an abuse of the Court's process. The claimant will receive compensation and the council will through its social services be obliged to provide any necessary assistance to which the claimant may be entitled (if any) having regard to his disability. Mr Rapose has no interest in this claim which the court recognises and correspondence from him is to be ignored."
It is not clear whether or not Mr Justice Collins had the letter of 10 December 2010 before him at the time of such refusal.
3. The Claimant is to notify the Court and the defendants in writing by no later than 19.2.11 as to whether he wishes to pursue these proceedings in a claim under s. 23 Acquisition of Land Act 1981. In the event that he does, he shall at the same time . file and serve:
a. an application formally to convert these proceedings to a claim under that provision, and
b. proposed substituted grounds for that claim and written evidence in support of the claim.
"(1) The Inspector and the Secretary of State failed to consider whether the Appellant had the relevant capacity to conduct the proceedings before him and whether he required the assistance of a litigation friend. The failures constituted a breach of natural justice and/or a breach of a relevant requirement within the meaning of Section 23 (2) of the ALA 1981 rendering the CPO invalid;
(2) the Inspector and/or the Secretary of State misdirected themselves in relation to the test to be applied under Article 8 of the ECHR thereby rendering the CPO invalid;
(3) The council and/or the Inspector and/or the Secretary of State failed to have regard to their duties under the Disability Discrimination Act 1995, in particular the need for a Disability Equality Assessment under Section 49A of the DDA. These failures were a breach of a relevant requirement within the meaning of Section 23 (2) of the ALA 1981 and meant that the CPO could neither be properly made or confirmed."
"(1) No valid application had been made within the 6 weeks statutory time limit and the court has no power to permit the applicant to raise any application now;
(2) Even if the court has powers to allow the applicant to amend his grounds, it should refuse to exercise the power as the draft grounds have no prospect of success."
The Legal Framework
"(1) If any person aggrieved by a compulsory purchase order desires to question the validity thereof, or of any provision contained therein, on the ground that the authorisation of the compulsory purchase thereby granted is not empowered to be granted under this Act or any such enactment as is mentioned in Section 1 (1) of this Act he may make an application to the High Court.
(2) If any person aggrieved by
(a) A compulsory purchase order, or
(b) A certificate under Part III of, or Schedule 3(2) to this Act,
desires to question the validity thereof on the grounds that any relevant requirement has not been complied with in relation to the order or certificate he may make an application to the High Court.
(3) In sub-section (2) above "relevant requirement" means
(a) any requirement of this Act or of any regulation under Section 7(2) above, or
(b) any requirement of the Tribunals and Inquiries Act 1992 or of any rules made, or having effect as if made, under that Act.
(4) An application to the High Court under this Section shall be made within 6 weeks
(b) in the case of a compulsory purchase order to which the said Act of 1945 does not apply, from the date on which notice of the confirmation or the making of the order is first published in accordance with this Act."
"7 The question then is whether there should be an adjournment which the claimant seeks.
8 The first aspect of that is whether the claim should or can be permitted to continue as a Section 23 matter. It is possible in principle for an application for judicial review to be so converted. There is a strict 6-week time limit under Section 23 which is absolute and cannot be extended, there being well known public policy reasons behind that requirement.
9 Counsel for the first and second defendants say that the claim is simply out of time. It had to be made within 6 weeks. No proper claim had been made in the 6-week period. The letter which the claimant relies upon as being made in the 6 week period was never more than a couple of lines. It did not give the grounds or substance of what the application was about. To the extent it was developed, it is common ground that those issues are hopeless and cannot succeed. They say that is the end of the matter.
"12. I draw from those observations the conclusion of the Court of Appeal that an application must be more than simply a document saying that it is an application.
13. It is argued on behalf of the claimant by reference to the statute that the way to approach it is to see an appeal under Section 23 as being like a Part 8 claim. The letter in November was the equivalent of a claim form. The matter comes forward, and if the defence do not like the form in which the proceedings are constituted it is for them to apply to strike out or for the claimant to seek to amend. If he seeks to amend, his amendments would be permitted provided of course he satisfies the usual requirements, including most obviously that of a real prospect of success.
14. It is not possible, or useful, for me on this application to try to define what is or is not an application in every case. Looking at the substance of what the court said in Okolo against a background where there is no provision for extensions of time, policy reasons for that and an obligation to put forward some sort of grounds for the application, it seems to me that the letter [dated 10 December 2010] cannot constitute a proper application and the case is doomed to failure for that reason.
15. The application is made in two or three lines. If one were to ask what was the basis for the application what were the arguments behind it the answer is those that accompanied the judicial review application. Those were completely hopeless. It seems to me not open to this court to treat as part of that application grounds now being put forward almost a year later which are acknowledged to be completely different and where the grounds for the original "application " were totally misconceived.
17. On those ground[s] alone the application which would follow if this request for an adjournment were granted is doomed to failure. For that reason it is going to cause uncertainty and unnecessary expense to prolong the matter further. One has on the one hand health concerns and difficulties faced by Mr Akhtar; one has on the other hand, in the evidence put forward by the London Borough of Wandsworth, the powerful reasons why it may not even be in Mr Akhtar's own interests for him to remain in this property, and the other reasons in the interests of community why the matter has to be regularised without delay."
"18 The first of these is a contention that there had been a breach of natural justice in relation to proceedings before the inspector because of the Claimant's lack of capacity. That lack of capacity is not yet established. Mr Akhtar attended the proceedings and appears to have taken some part in it from what one sees in the inspector's report. But from what one sees in reading the inspector's report as a whole, the inspector conducted the inquiry appropriately and carefully, not only out of consideration for the Claimant in recognising the Claimant had health difficulties, but also, as it were, prodded by Mr Rapose who made a very large number of points, most of them bad but one or two arguably sound."
"19 It is suggested next that the inspector misdirected himself about Article 8, but, looking at the passages at paragraph 78 where he dealt with the matter, it seems to me that that claim is an unpromising one given the public considerations which the inspector had to have regard to which arise on the particular facts of this case."
"20 It is now established that the inspector and indeed the defendants do not have to articulate the duties under the Disability Discrimination Act in terms. It really does seem improbable given the heart of the case which the inspector was reviewing that the inspector did not have the Claimant's disability closely in mind. It is right at the start of the case."
Grounds of Appeal
(1) The appellant contends that the Judge erred in law in concluding that the court required a valid application to be made under Section 23 of the 1981 Act within the six week limitation period before it had the power to permit an amendment to it after the expiry of that period. It is said that the Judge erred in concluding that the decision of the Court of Appeal in Okolo and the earlier decision in Burton v The Secretary of State for Transport  2 EGLR 35 were binding authorities for the above conclusion.
(1) The application for judicial review issued by the appellant within six weeks of the inspector's decision could and should have been treated as an application under Section 23 by virtue of the appellant's letter to the court dated 10 December 2009. The application and the letter should have been read together. So read, they amounted to something which was recognisably an application brought under Section 23, in that the documents made clear that the appellant sought (i) to challenge the validity of the CPO and (ii) an order that the CPO be quashed.
(2) The failure to supply any or proper grounds as the basis for such a challenge was simply a defect in procedure in the form of a failure to comply with the provisions of Part 54 of the CPR (so far as the judicial review application was concerned) and the requirements of Practice Direction 8A, and para 8.2 of the Part 8 procedure (in respect of the application under Section 23). Thus the letter constituted a 'live' application, made within the relevant six week period, in relation to which it was open to the court in accordance with the overriding objective to permit an amendment in order to demonstrate valid grounds for such application.
(3) In those circumstances the judicial review proceedings, now to be read as a claim under Section 23, should have been adjourned for the purposes of finalising the appellant's position and then deciding whether or not to apply to amend the judicial review application so as to pursue the indicative grounds placed before the court.
The Respondents' case
The 'validity' of the Section 23 application
"Although I have referred to the notice of motion as containing grounds, in fact it provides no grounds whatsoever. Grounds of this sort do not comply with Order 94. Grounds should identify the actual point relied on in terms which enable the department to ascertain the case it has to meet and whether or not it has any merit. If it is not done, then the department should consider making an application to strike out the notice of motion. In considering any such application the court will, I hope, bear in mind that parliament has laid down a six-week time-limit for making the application to the High Court which the courts have no powers to extend Schedule 2, para 2. Parliament has also indicated that such an application is the only means by which an order made by the Secretary of State can be challenged. The time-limit and the limited scope of appeal provided by the Schedule indicate that Parliament intended applications to the High Court to be dealt with expeditiously therefore the court should deal firmly with applications which are designed to frustrate that intention."
"It is clear that the provisions of the Highways Act 1980 are directed, in Section 10 of and Schedule 2 to that Act, to providing a remedy to which to be confined within strict limits. It savours, as Mann LJ has just commented, of the kind of relief which is envisaged by moving for judicial review within the provisions of RSC Ord 53, but providing within its own context the route by which a person aggrieved may, within a comparatively short period of 6 weeks, have recourse to the courts on the ground that any requirement of the Act, or of regulations made under the Act, has not been complied with by the Secretary of State responsible for the Order
There must be an onus on those responsible for presenting the originating motion under Ord 94 to ensure that the requirements of Ord 8 r 3(2) are met."
"Mr Popat has constructed an interesting argument. I see no prospect of the original application for leave to move for judicial review getting leave in its present form. I can see every policy argument against granting any extension of time after this passage of time. It is accepted by Mr Litton [for the Secretary of State] that the mere failure to get a particular form right will not always lead to something always being out of time just because one needs to alter the heading on the form. That is a concession rightly made, but the present case does not come anywhere near providing a form which can sensibly be described as a proper application. I would, therefore, allow this appeal and strike out the notice of motion."
"Mr Popat in his able submissions submits that the document of 24 June 1996 satisfies the provisions of s. 23 of the Acquisition of Land Act 1981. In my judgment, whether or not a document amounts a valid application is one of fact and degree to be resolved if in dispute by the court. The mere fact that something describes itself as an application does not automatically turn it into a valid application for the purposes of a particular legislation.
RSC Order 94 is headed "Application and Appeals to High Court under various acts: Queen's Bench Division Jurisdiction of High Court to quash certain orders, schemes etc" Rule 1(2) provides:
The application must be made by originating motion and, without prejudice to Order 8, rule 3(2) the notice of such motion must state the grounds of the application.
That rule and what was said by this court in Burton the relevant parts of which have already been read by Schiemann LJ, are particularly relevant to this issue. In truth the document of 24 June gives no grounds entitling Mr Okolo to relief under s. 23 of the 1981 Act. Apart from calling itself an application it bears none of the indicia of a valid application. In my judgment, it is not a valid application for the purposes of s.23. If I should be wrong in coming to that conclusion, I agree that the application would fall to be struck out for the reasons given by Schiemann LJ as an abuse of process."
a. Lack of empowerment to grant the CPO: Section 23 (1);
b. Failure to comply with a "relevant requirement" as defined in Section 23 (3).
Thus, if the claimant fails to identify, refer to or otherwise indicate any such ground in his application, the mere self-description or label that the application is made pursuant to s. 23 is inadequate in itself to render it to an application for the purposes of the 1981 Act.
The "Merits" of the Indicative Grounds
Did the Inspector act in breach of natural justice and/or Article 6?
"76. There was no suggestion at the inquiry that the inquiry procedure itself was unfair. It was necessary for me to indicate to Mr Akhtar and Mr Claude Rapose that certain lines of questioning should not be pursued further or not dealt with in a repetitious manner. I am satisfied that there was adequate time for the Objector and his supporters to present their cases and to question the Council's witnesses on all relevant matters in the five sitting days of the inquiry.
77. There has therefore been no violation of Mr Ishaque Akhtar's Article 6 rights. "
Did the Inspector fail to apply the correct "proportionality" test?
(i) whether the objective justifying the interference is sufficiently important to justify limiting the right;
(ii) whether the measures designed to meet the objective of the interference are rationally connected to it;
(iii) whether the means used to impair the Convention right are no more than is necessary to accomplish that objective.
To these there should be added the issue or element emphasised in Huang v. Secretary of State for the Home Department  2 AC 167 at paragraph 19:
(iv) whether the interference strikes a fair balance between the rights of the individual and the interests of the community, which require careful assessment of the severity and consequences of the interference.
"I conclude that the appropriate test of proportionality requires a balancing exercise and a decision which is justified on the basis of a compelling case in the public interest and as being reasonably necessary but not obligatorily the least intrusive of Convention rights."
Did the Inspector and/or the Secretary of State fail to consider the requirements of the Disability Discrimination Act 1995?
" 49A General duties
(1) Every public authority shall in carrying out its functions have due regard to
(a) the need to eliminate discrimination that is unlawful under this Act;
(b) the need to eliminate harassment of disabled persons that is related to their disabilities;
(c) the need to promote equality of opportunity between disabled persons and other persons;
(d) the need to take steps to take account of disabled persons' disabilities, even where that involves treating disabled persons more favourably than other persons;
(e) the need to promote positive attitudes towards disabled persons;
(f) the need to encourage participation by disabled persons in public life."
To what decisions does the duty apply?
The duty applies to all decisions taken by public bodies, including policy decisions and decisions on individual cases;
The duty "complements" specific statutory schemes which may exist to benefit disabled people;
The disability equality duty is at its most important when decisions are taken which directly affect disabled people
What does the duty entail?
vii. "Due regard" means specific regard by way of conscious approach to the specified needs;
viii. Due regard requires analysis of the relevant material with the specific statutory considerations in mind;
ix. General awareness of the duty does not amount to the necessary due regard being a "substantial rigorous and open-minded approach";
xi. The duty (and in particular DDA 1995 s.49A (1) (d)) may require positive steps to be taken if the circumstances require it to address disadvantage to disabled people;
xiii. Similarly, if a risk of adverse impact is identified, consideration must be given to measures to avoid that impact before fixing on a particular solution "
"In that way the decision maker is more likely to ensure that the relevant factors are taken into account and the scope for argument as to whether the duty has been performed will be reduced.": ibid at paragraph 38.
Lord Justice Etherton: I agree.
Lord Justice Pill: I also agree.