England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT (QUEEN'S BENCH DIVISION) (ADMIN)
Sir Wyn Williams (sitting as a High Court Judge)
CO10032017

		Royal Courts of Justice Strand, London, WC2A 2LL
		31 July 2018

Lord Justice Peter Jackson:

Introduction

1. At a hearing on 26 July 2018, we dismissed the appeal in this matter. These are my reasons for concurring in that decision.
2. The central issue is whether a local housing authority can reconsider its determination of an applicant's eligibility for assistance under Part VII of the Housing Act 1996 ('the Act') after it has made a 'local connection' referral to another authority. On 19 May 2017, Sir Wyn Williams, sitting as a High Court Judge, held that it could not: [2017] EWHC (Admin) 1190; [2017] HLR 31. He therefore granted a claim for judicial review brought by Mr Romeo Sambotin and quashed an adverse eligibility decision made by the London Brough of Brent ("Brent") on 10 February 2017. That decision had purported to reverse a favourable eligibility determination made on 30 January 2017.
3. Once a public authority exercising a statutory power has decided how the power is to be exercised, it will lack further authority and be functus officio. Any later attempt to remake the decision will be outside the authority's powers (ultra vires). Aside from these limits on powers, there is a strong and obvious public policy interest in finality, which allows individuals to rely on statutory decisions without having to worry that they may later be changed. Nevertheless, in the interests of justice and of good administration there are certain limited circumstances in which public authorities can reconsider final decisions: where there has been fraud (R v LB Southwark ex p Dagou (1995) 28 HLR 72) or fundamental mistake of fact (Porteous v West Dorset DC (2004) HLR 30). Moreover, an authority is not to be taken to have made a final decision where its enquiries are incomplete (Crawley Borough Council v B (2000) 32 HLR 636). Here, Brent's reason for reconsideration was its belief that its first decision was wrong. It argues that it was entitled to remake the decision because, on a true interpretation of the scheme of Act, it had not in fact made a final decision about its housing duty. The judge however found that the decision of 30 January was a final one and quashed the decision of 10 February as being an illegitimate reconsideration.
4. It should be recorded that Brent raised three other arguments in relation to this central issue during the course of the proceedings, arguments that are not now pursued. The first is that even if the 30 January decision was a final one, the 10 February reconsideration fell within the Porteous exception, as being a reconsideration following a fundamental mistake of fact. That submission was rightly rejected by the judge and was not pursued in this court. What happened here was not a mistake of fact but a rethink on the basis of the same facts. That is what the principle of finality is intended to prevent. The second submission that has fallen away is the contention that the limited categories of case where reconsideration is permissible should be expanded to cover cases where the original decision was simply wrong; this plainly unsound contention was wisely abandoned by Ms Ferber. The third submission not pursued is that the wrongness of an initial decision may be relevant to the exercise of the discretionary remedy of judicial review in respect of the later decision. This argument was not developed before the judge, nor was it a ground of appeal. I am doubtful of its validity, but it could anyway have no applicability in this case, where the alleged incorrectness of the original decision is very far from having been established and could not in any event be established in these judicial review proceedings.
5. Brent's second and subsidiary ground of appeal arises from the judge's further conclusion that the decision of 10 February was unlawful in that, while it gave reasons for that decision, it did not first explain why it considered itself entitled to reconsider its earlier decision at all.
6. The third ground of appeal concerns the existence of the interim housing duty that the judge held that Brent owed to Mr Sambotin and is entirely dependent on the outcome of the first two grounds.

The facts

7. These are set out in detail by the judge at paragraphs 1 to 13, and it is now unnecessary to give more than a brief summary.
8. Mr Sambotin, a Romanian national, came to the United Kingdom in October 2013. In July 2014, he moved into private accommodation in London and worked in a self-employed capacity. In September 2015, he suffered very serious injuries in an accident abroad, as a result of which his ability to work has been called into question. In February 2016, he returned to United Kingdom and moved in with friends in the London Borough of Waltham Forest ('Waltham Forest'). On 12 August 2016 he made a homelessness application to that authority. On 15 September 2016, Waltham Forest informed him that he was not considered to be eligible for housing assistance under section 185 of the Act.  The issue of eligibility turned on the complex issue of whether or not Mr Sambotin had the status of a worker so as to be exercising EEA treaty rights.
9. In November 2016, Mr Sambotin moved into Brent's area and on 5 December 2016, he made a homelessness application to Brent and was interviewed. Amongst other things, he informed them that he had been turned down by Waltham Forest and he provided a copy of its refusal letter.
10. On 30 January 2017, Brent wrote a letter to Mr Sambotin that included this passage:

"The council's decision

We are satisfied that you are homeless as defined by section 175 of the above Act.

We are satisfied that you are eligible for assistance as defined by section 185 of the above Act.

We are satisfied that you fall within the category of priority need as defined by section 189 of the above Act.

We are satisfied that you are not homeless deliberately as defined by section 191 of the above Act.

However we are not satisfied that you have a local connection with this authority as defined by section 198 of the above Act."

11. On the same day, Brent informed Waltham Forest that it had concluded that Mr Sambotin was homeless, eligible for assistance, in priority need and not intentionally homeless. It went on to maintain that he had no local connection with Brent but that such a local connection existed with Waltham Forest and that a s.198 reference was therefore being made. Brent did not provide accommodation for Mr Sambotin in the meantime.
12. By email dated 6 February 2017, Waltham Forest informed Brent that it would not accept the referral as it did not consider there to have been a material change in circumstances since it first rejected his application.
13. On 8 February 2017, Brent sent an email to Mr Sambotin's legal adviser saying that it was withdrawing the s.198 referral while it made enquiries into his eligibility. On 10 February, it issued a decision that he was not eligible for homelessness assistance but informed him that he had a statutory right under s.202 to seek a review of that decision.
14. Following a pre-action protocol letter of 13 February, Mr Sambotin brought an action for judicial review on 24 February on three grounds, broadly corresponding to the present grounds of appeal.
15. Brent's initial response to the threat of judicial review proceedings (found in its letter of 13 February) was not that its 30 January decision was incomplete because it had made a local connection referral, but rather that:

"On review of the facts, we are satisfied that there has been a fundamental mistake of fact. As stated in the case of Porteous… a local authority is entitled to revisit and change an earlier decision if the earlier decision resulted from a fundamental mistake of fact. We believe that there has been a fundamental mistake of fact in that there has been an oversight on our part… It would not be correct for a local authority to stand by a decision that was incorrect in law even if it is a case of oversight as it has been in this case."

16. By these means, Brent aligned itself with the conclusion of Waltham Forest that Mr Sambotin was not eligible for priority housing.

The statutory framework

17. The statutory framework is found in Part VII of the Housing Act 1996, which concerns homelessness.^[1]
18. The starting point is section 184, which falls under a sub-chapter to Part VII entitled 'Duties to persons found to be homeless or threatened with homelessness'. The relevant parts of the section are these:

"(1) If the local housing authority have reason to believe that an applicant may be homeless or threatened with homelessness, they shall make such enquiries as are necessary to satisfy themselves –

(a) whether he is eligible for assistance, and

(b) if so, whether any duty, and if so what duty, is owed to him under the following provisions of this Part.

(2) They may also make enquiries whether he has a local connection with the district of another local housing authority in England, Wales or Scotland.

(3) On completing their enquiries the authority shall notify the applicant of their decision and, so far as any issue is decided against his interests, inform him of the reasons for their decision.

(4) If the authority have notified or intend to notify another local housing authority under section 198 (referral of cases), they shall at the same time notify the applicant of that decision and inform him of the reasons for it.

(5) A notice under subsection (3) or (4) shall also inform the applicant of his right to request a review of the decision and of the time within which such a request must be made (see section 202)."

19. By section 188(1), if a local housing authority has reason to believe that a person may be homeless, eligible for assistance and have a priority need it shall secure that accommodation is available for that person pending the decision as to the duty (if any) owed by the authority. By subsection (2), this duty arises irrespective of any possibility of the referral of the applicant's case to another local housing authority.
20. Section 193 concerns the duty to house persons with priority need who are not homeless intentionally, referred to in the Act as 'the main housing duty':

"(1) This section applies where the local housing authority are satisfied that an applicant is homeless, eligible for assistance and has a priority need, and are not satisfied that he became homeless intentionally.

(2) Unless the authority refer the applicant to another local housing authority (see section 198), they shall secure that accommodation is available for occupation by the applicant.

…"

21. The following sub-chapter to Part VII is entitled 'Referral to another local housing authority'. Section 198 reads:

"(1) If the local housing authority would be subject to the duty under section 193 (accommodation for those with priority need who are not homeless intentionally) but consider that the conditions are met for referral of the case to another local housing authority, they may notify that other authority of their opinion.

(2) The conditions for referral of the case are met if –

(a) neither the applicant nor any person who might reasonably be expected to reside with him has a local connection with a district of the authority to whom his application was made,

(b) the applicant or a person who might reasonably be expected to reside with him has a local connection with the district of that other authority, and

(c) neither the applicant nor any person who might reasonably be expected to reside with him will run the risk of domestic violence in that other district.

[(2ZA), (2A) and (3) concern cases of domestic violence]

…

(5) The question whether the conditions for referral of a case are satisfied shall be decided by agreement between the notifying authority and the notified authority or, in default of agreement, in accordance with such arrangement as the Secretary of State may direct by order."

22. The arrangements made by the Secretary of State are contained in Schedule 1 of the Homelessness (Decisions on Referrals) Order SI 1998 No. 1578 and involve the appointment of a person from a panel maintained by the Local Government Association to determine the issue on written representations.
23. Section 199 defines the circumstances in which an applicant for housing is to be regarded as having a local connection.
24. Section 200 provides:

"(1) Where a local housing authority notify an applicant that they intend to notify or have notified another local housing authority of their opinion that the conditions are met for the referral of his case to that other authority –

(a) they cease to be subject to any duty under section 188 (interim duty to accommodate in case of apparent priority need), and

(b) they are not subject to any duty under section 193 (the main housing duty),

but they shall secure that accommodation is available for occupation by the applicant until he is notified of the decision whether the conditions for referral for his case are met."

25. Section 202 confers upon an applicant for housing assistance the right to request a review of adverse decisions such as what duty is owed to him or a decision to refer his case to another local authority. Section 204 entitles an applicant who is dissatisfied with a review decision to appeal to the County Court on a point of law. (In this case there was an issue before the judge as to whether judicial review should be allowed to proceed when Mr Sambotin had exercised his right to a statutory review and could have appealed to the County Court thereafter if the review decision was adverse to him but, as the case was ready for trial, the judge proceeded; no issue arises about that on this appeal.)

Guidance

26. The Homelessness Code of Guidance for Local Authorities was issued by the Department for Communities and Local Government (now the Ministry of Housing, Communities and Local Government) in 2006 and has the status of statutory guidance to housing authorities.^[2] The version in force at the relevant time contained this passage (with original emphasis) concerning referrals to another housing authority.

"18.3. Notwithstanding that the conditions for a referral are apparently met, it is the responsibility of the notifying authority to determine whether s.193 applies before making a reference. Applicants can only be referred to another authority if the notifying authority is satisfied that the applicant is unintentionally homeless, eligible for assistance and has a priority need. Applicants cannot be referred while they are owed only the interim duty under s.188, or any duty other than the s.193 duty (e.g. where they are threatened with homelessness or found to be homeless intentionally)."

The equivalent passage in the 2018 Guidance is to similar effect:

"10.45 Section 198(1) enables a housing authority to refer an applicant who is owed the main housing duty but does not have a local connection to their district, to another housing authority in England, Wales or Scotland if it considers that the conditions for referral are met. Before making a referral, it is the responsibility of the notifying authority to determine that the applicant is unintentionally homeless, eligible for assistance and has a priority need; and is owed the main housing duty."

The judge's decision

27. Sir Wyn Williams, having conducted a thorough review of the facts, the legislation and the authorities, expressed his conclusions in relation to Brent's submission that it had not completed its decision-making process in this way:

"31. I am prepared to accept that the decision in the Crawley BC case provides broad support for the proposition that Ms Ferber advances, namely that a local housing authority is entitled to revisit a decision which it has communicated to an applicant for housing assistance in circumstances where either (a) it has not completed its enquiries under section 184 of the Act, or (b) it has made no final decision as to the nature of the duty it owes to an applicant. Accordingly, as it seems to me, the first issue for my decision is whether, on the facts in this case, the Defendant had completed its enquiries under section 184 of the Act and had communicated a decision to the Claimant as to the nature of the duty which it owed to him.

32. The terms of the letter of 30 January 2017 from the Defendant to the Claimant could not be clearer. The letter records, in terms, that the Defendant had satisfied itself that the Claimant was homeless, that he was eligible for assistance, that he had a priority need and that he was not homeless intentionally. In my judgment it is crystal clear that it had completed the enquiries mandated by section 184 of the Act.

…

36. Ms Ferber… submits that the Defendant had made no final decision as to its duty precisely because it had referred the Claimant's application to Waltham Forest. She submits that until a decision had been made on that referral there had been no final decision upon the nature of the Defendant's duty.

37. I do not accept that submission. Upon a referral by one local authority to another the authority to which the application is referred is bound to accept it if the conditions for referral are met. The 1996 Act provides a mechanism whereby disputes about the referral conditions can be determined. If a dispute arises and is resolved in favour of the referring authority the authority to whom the application is referred is bound to deal with it and it will be bound by the view which the referring authority has reached about homelessness, eligibility for assistance, priority need and intentional homelessness. Conversely, if the authority to which the referral has been made shows that the conditions for referral have not been met the referring authority will owe to the applicant the duty under section 193(2) to "secure that accommodation is available for occupation by the applicant".

38. It seems to me that this conclusion is supported by the reasoning and decision in Dagou. The facts in Dagou were very similar to the facts in the instant case. …

39. Sir Louis Blom-Cooper QC sitting as a High Court Judge quashed the later decision. One possible reading of the reasoning of the judge for reaching his decision is that he considered there to be a broad principle to the effect that once a decision was made under the relevant provisions of the legislation then in force (the Housing Act 1985) it could not be revisited unless fraud or deception was established on the part of the applicant. In Crawley, Buxton LJ, with whose judgment Chadwick LJ and Sir Richard Scott V-C agreed, expressly doubted the validity of such a broad principle – see page 645 of the report. However no authority subsequent to Dagou has questioned the actual decision made by the learned judge. Further no one has doubted his legal analysis or characterisation of what is involved when a referral from one local authority to another on the basis of local connection takes place. At page 82 of his judgment the learned judge said this:-

"In my view the section 67 notification is distinct and separate from the stages leading up to a finding of unintentional homelessness by the applicant who was a person in priority need. The referral under section 67 is an executional performance of a full housing duty brought into existence by the finding of the local authority after having completed its inquiries under section 62."

40. Notwithstanding that the judge was concerned with the Housing Act 1985 which has somewhat different wording from the successor legislation with which I am concerned I can see no basis to conclude that this analysis by the judge is incorrect. To repeat, so far as I am aware this part of his judgment has never been doubted notwithstanding the somewhat different wording with which he was dealing in the 1985 Act compared with the relevant wording of the 1996 Act. In my judgement this part of the reasoning in Dagou provides considerable support for the conclusions which I have expressed above.

41. I have reached the clear conclusion that the evidence establishes that the Defendant completed its enquiries on all matters relevant to establishing the duty, if any, which it owed to the Claimant under Part VII of the Act and, further, it had in substance made a final decision as to the duty owed. That final decision was communicated to the Claimant by the letter of 30 January 2017."

And as to reasons:

"48 … Instinctively, it seems to me that fairness demands not just that the Defendant should provide reasons to justify its second decision (which it did) but also reasons to support its view that it was entitled to make a second decision (which it did not).

49. It is true that in its response to the Claimant's pre-action protocol letter the Defendant asserted that it had made a fundamental mistake of fact but provided no clue as to what that mistake had been.

50. In short I am satisfied that the Defendant was under a duty to provide reasons to justify its view that it was entitled to make the decision communicated in the letter of 10 February 2017 and that prior to the commencement of these proceedings it failed to do so."

28. The judge accordingly quashed the decision of 10 February for these two reasons, with the consequence that the decision of 30 January still subsisted. He therefore found that Brent had an interim duty to secure accommodation for Mr Sambotin and he ordered it to do so.

Conclusion on the finality of the 30 January determination

29. As Buxton LJ said in Crawley v B at page 645, the key to the resolution of these dilemmas lies in the nature of the decision and of the decision-making process. Having reviewed the statutory scheme, I am in no doubt that the judge's conclusion that the decision of 30 January was a final decision in relation to the housing duty owed to Mr Sambotin was right for the reasons he gave. In deference to Ms Ferber's arguments, I would summarise my conclusions in this way:

(1) The scheme of the legislation separates the questions of eligibility and local connection. The latter only arises when the former has been established: s.198(1) and the Guidance at 18.3, which also makes clear that no referral can be made on the basis of the existence of an interim housing duty. I therefore accept the submission of Mr Bates and Ms Richardson that the main housing duty crystallises under s.193(2) when the authority has satisfied itself about the four qualifying conditions under s.193(1). From that point onwards, the only question is which authority is to be responsible for discharging the duty. The only matters that are relevant to that question are the conditions relating to local connection: s.198(2), (2ZA) and (2A). If these are not met, the referring authority is responsible: s.200(3); if they are, the receiving authority is responsible: s.200(4). There is a dispute resolution mechanism under s.198(5) and the Regulations. This allows no scope for arguments about anything else, and consequently there are no further enquiries that could be made by the referring authority under s.184. The Act does not allow for the withdrawal or review of a favourable decision, only an unfavourable one via review and appeal under sections 202 and 204. These are all clear indications that the local connection referral process only begins once the eligibility assessment ends.

(2) I do not accept the implication Brent seeks to draw from the statutory language. The words 'would be' in s.198(1) ("If the local housing authority would be subject to the duty under section 193…") connote a duty that exists as a prerequisite to a local connection referral, and not a duty that has not yet arisen. Likewise, s.200(1)(b), which provides that where a local connection referral is notified the referring authority is not subject to any housing duty, is most naturally understood as suspending the operative effect of an otherwise existing duty; it does not prevent the duty from arising. As Henderson LJ noted in argument, if the duty did not exist, the provision would be superfluous.

(3) Brent's construction leads to real practical difficulties. Ms Ferber argues that the housing duty only arises once the local referral process is complete. But the completion of the referral process is a moveable feast, depending upon whether the referral is accepted or not. Why, it might be asked, should an undoubtedly eligible applicant be kept waiting to know whether and if so when his entitlement to housing has been accepted? Which authority is to make the 'final' decision? Moreover, referring authorities may be faced with requests from receiving authorities to review their decisions on wider grounds than the legislation permits and receiving authorities might refuse to agree to accept referrals because they disagree with the eligibility decision. All of this tends to undermine the legislative scheme. Uncertainty about eligibility is exactly what it aims to eliminate.

(4) I would reach this conclusion as a plain matter of statutory construction. But it is nonetheless interesting that it accords with the conclusion reached many years ago in Dagou. That decision has been disapproved by this court in Crawley to the extent that it may have sought to limit to fraud alone the circumstances in which a decision can be reconsidered. However, like the judge at paragraph 39 of his decision (see above), I would endorse the soundness of the analysis in Dagou of the statutory framework, and I agree that the changes in wording between the Housing Act 1985 and the current legislation make no difference in this respect.

(5) It is true that the receiving authority is bound by the eligibility decision of the referring authority, subject only to the local connection criteria being met, and to the decision of an appointed person in the event of disagreement. No doubt there are situations where one authority has to house an applicant on the back of an eligibility decision that it would not itself have made, but the purpose of the legislation is to achieve clarity in the division of statutory responsibilities. Nor is there a need to struggle to escape the plain intentions of the statutory scheme where there are alternative remedies in the rare cases where a problem such as the present one arises. Brent could have insisted upon its eligibility decision. Had Waltham Forest then been sufficiently concerned, it could have brought judicial review proceedings, though it is notable that there are only two reported examples of this happening: R v Slough BC Ex p. Ealing LBC [1981] QB 801, CA and R v LB Ealing Ex p. Royal Borough of Kensington and Chelsea [2017] EWHC (Admin) 24; [2017] HLR 13. Still less likely, but not impossible^[3], an authority could bring judicial review proceedings against itself to unravel a seriously incorrect decision, but the subject of the decision would then have the protections that such proceedings afford.

(6) Ms Ferber has argued that the letter of 30 January was simply a notice under s.184(4) that a local connection referral had been made, but a reading of all the other critical matters decided in the letter shows that this cannot be so.

(7) Although it cannot influence the question of statutory construction, it is noteworthy from the terms of the letters of 30 January to Mr Sambotin and to Waltham Forest that Brent itself plainly thought it was making a final decision on eligibility, and no doubt Mr Sambotin did too.

30. For these reasons, I would uphold the judge's conclusions on Ground 1, with the result that the appeal would be dismissed.
31. It is therefore unnecessary to consider Ground 2. That being the case, I would prefer not to express any opinion on whether the judge was right to require Brent to give reasons not only for its new decision, which it did, but also for the fact that it was reconsidering at all. There appears to be no other authority on the question of whether reasons must be given not just for a decision but also for the process by which it has been reached. It is said by Brent that this is an undue extension of the duty to give reasons, but the question arises in unusual circumstances and it is unnecessary to answer it in these proceedings.

Lord Justice Henderson:

32. I agree.

Lord Justice Longmore:

33. I also agree.
______________

Note 1    This part of the Act has, with effect from 3 April 2018, been amended by the Homelessness Reduction Act 2018, but the amendments do not bear upon the issues arising on this appeal.     [Back]

Note 2    Revised guidance has been in place since 3 April 2018 (and was amended in June 2018) to take into account the changes introduced by the Homelessness Reduction Act 2017.     [Back]

Note 3   R v Bassetlaw DC, ex p. Oxby [1998] PCLR 283 (CA)    [Back]