England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST

		Royal Courts of Justice Strand London WC2
		15th July 1994

THE DEPUTY JUDGE:

1. This application for judicial review, challenging a decision of the local authority of 15 September 1993 which found the applicant to be intentionally homeless, raises in an acute from the sufficiency of the reasons for that decision within section 64(4) of the Housing Act 1985.
2. The Applicant, Gerald Hinds, is aged 60, having been born on 4 June 1993. He has been found to be in priority within section 59(1 )(c) of the Housing Act 1985. He became homeless on or about 16 February 1993 as a result of his eviction from a property tenanted from the local authority, but he had, more than a year previously, left, what was regarded as, the matrimonial home. The ostensible, dual residence provides the factual background to the challenge on the grounds that the reasoned decision failed to comply with section 64(4). He was supplied with temporary accommodation at Twelve Acres Reception Centre, 393 Highbury Quadrant, London N5, where he still resides.
3. He was married on 11 May 1988, but was divorced on 30 April 1992. Prior to his marriage the applicant lived at 9a Charteris Road, London N4, as the tenant of the local authority. When he married, the plan was for those premises to be the matrimonial home, but his wife changed her mind and never resided there. She lived in a flat at 20 Wellesley Road, London N22, as a tenant of the London Borough of Haringey. The applicant occupied the two premises alternately, staying initially more at Wellesley Road. By 1991, however, he was spending more time at Charteris Road, with only occasional stays at Wellesley Road, with the hope of reviving a flagging marriage. During 1991 possession proceedings were taken against the applicant in respect of Charteris Road. An order for possession, suspended on the payment of £15 off the arrears of rent, was made by Clerkenwell County Court.
4. In November 1991 - by which time the applicant had returned full-time to Charteris Road - there was an incident at Wellesley Road, in which the applicant admittedly assaulted his wife. He was arrested, but released on bail. He was eventually, on 16 December 1991, bound over for 12 months to keep the peace. Earlier that month his wife had petitioned for divorce. She also sought an injunction. A hearing took place before Judge Tibber at Edmonton County Court on 19 December 1991. The judge made no finding and no order, on the undertaking by the applicant that he would not assault or molest his wife and would not enter the premises at Wellesley Road without permission.
5. The local authority began proceedings to evict the applicant from his flat at Charteris Road, an order for possession finally being made on 26 November 1992. Eviction took place on 16 February 1993. He had applied to the local authority on 4 February as a person threatened with homelessness. On 27 April 1993 the local authority sent the applicant a decision-letter declaring him intentionally homeless. The letter stated as the reasons for the decision:

"The Council is satisfied that you became homeless intentionally at some time in December 1991 when your wife obtained an injunction ousting you from the matrimonial home, at 20 Wellesley Road, Wood Green, London N22.

After careful consideration, the Council is satisfied that this accommodation was available to you and that it would have been reasonable for you to stay there.

The Council has noted that you were physically violent towards your wife, and because of your continued violence towards her, in December 1991, your wife obtained an injunction ousting you from the matrimonial home. The Council is satisfied that you could have done so had you wished, restrained from being violent towards your wife, and that you were aware that your continued violence would result in your being unable to reside at the matrimonial home.

The Council has reached its decision weighing these and all the relevant matters in your case, and balancing them against the general housing conditions prevailing in the London Borough of Islington."

6. On 24 May 1993 the applicant was given leave by Pill J to apply for judicial review, challenging that decision.
7. Three things were apparent from the decision-letter. First, the local authority was treating the applicant's last settled accommodation as Wellesley Road, on the footing that that had been the matrimonial home, from which the applicant had been extruded by his estranged wife. Second, it was assumed, wrongly, that the extrusion had resulted from an injunction obtained in divorce proceedings, whereas no injunction had been granted. Third, the applicant gave his address as 9a Charteris Road, from which premises he declared he was due to be evicted on 16 February 1993. While Wellesley Road was mentioned as having been one of the applicant's previous addresses in the last five years, the local connection was said to be by virtue of the applicant's son residing in Islington at Charteris Road.
8. In her affidavit of 22 June 1993 Ms Sheena Anyanuwa explained the basis for the decision-letter of 27 April 1993 as follows:

"I sent the Applicant my decision letter on 27th April 1993, that letter is exhibited to the Applicant's Affidavit sworn on 24th May 1993. I reached my decision on the basis of the information supplied to me by the Applicant, which I had no reason to disbelieve. I was and am of the opinion that Mr Hinds lot his status as a secure tenant of 9A Charteris Road when he left the property in 1988. He occupied 20 Wellesley Road with his wife until 1991 when he was forced to leave because of an injunction obtained by his wife. I was satisfied that 20 Wellesley Road was the Applicant's last settled accommodation and he had lost this accommodation because of his own actions which were deliberate. I was satisfied that it would have been reasonable for Mr Hinds to remain at the matrimonial home at 20 Wellesley Road and made this decision on the basis of the information the Applicant had given me about his reasons for leaving the matrimonial home which were domestic violence. At no time did the Applicant say he left the matrimonial home because of a breakdown in the relationship with his wife neither did he state that he had spent time living at both 9A Charteris Road and 20 Wellesley Road. Had he said either of the above I would have made a note of it."

9. On 7 July 1993 the local authority, having agreed to review its decision of 27 April 1993, interviewed the applicant through a Housing Advisory Officer, Ms Rosemarie Peart. The entanglement of dual residences was explored in the course of the inquiries. Ms Peart deposed in her affidavit of 23 March 1994 as follows:

"4. My review of the case began on 7 July 1993 when I interviewed the applicant. I produce as Exhibit RP2 a true copy of my interview notes and other notes arising from the review. From the interview I established that the applicant married in May 1988 and moved from Charteris Road to 20 Wellesley Road where his wife rented a Council flat. The marriage went well for a year until they were joined by Mrs Hind's daughter and grandchild. This caused quarrels which resulted in the applicant sometimes leaving the matrimonial home two to three times per week and going to Charteris Road.

5. The applicant continued to stay on and off at both addresses. He also continued to make his financial contributions towards the matrimonial home. He said he could not afford to pay rent at both addresses and had therefore agreed that his son Ivor live at Charteris Road. I understand that Ivor had been living there (sometimes with a girlfriend and child) from at least the time of the applicant's marriage. It is a one-bedroomed property. The applicant had not moved any household items with him to Wellesley Road, just his clothes.

6. These circumstances continued until 12 November 1991 when the applicant seriously assaulted his wife. He was advised by the police to stay away from Wellesley Road. That incident led directly to his wife filing for a divorce on 6 December 1991 and seeking an injunction to prevent his entry to the matrimonial home. The injunction hearing took place on 19 December 1991 and resulted in the applicant undertaking not to enter the matrimonial home except to pick up his belongings." (In her affidavit in reply of 17 June 1994, Ms Peart reaffirms her view that the assault was a serious one).

"7. The violent incident followed up by the injunction proceedings had caused him to return to Charteris Road on a full-time basis."

10. Ms Peart then describes her attempts to interview the applicant's wife:

"9. On 14 and 20 July 1993, I telephoned Mrs Hinds in order to make further enquiries in respect of the application. She was extremely reluctant to answer questions. I tried my best to get clear answers but, as my notes demonstrate, her answers were unfortunately somewhat inconsistent. She explained that their relationship had got into difficulties and broken down a year after the marriage. There were constant disagreements about where they should live. Prior to the marriage they had planned to live at Charteris Road with the children living at the 2 bedroomed property at Wellesley Road. However, this never happened because of their deteriorating relationship. The Applicant continued to move back and forth between the two addresses. At one point she said the applicant stayed at Charteris Road for a couple of months but also said that she was able to persuade him to stay at the matrimonial home sometimes about 3 nights per week. She told me that the applicant had always considered Charteris Road as his home but allowed his son to stay there. He paid the bills at both homes.

10. I particularly asked her about the applicant's living arrangements in autumn 1991. She told me that his movement between the two addresses continued right up until the violent incident (in November 1991) which resulted in the injunction proceedings. Indeed this tallies with applicant's own affidavit evidence."

11. Ms Peart then deals with the possession proceedings in relation to Charteris Road, and concludes:

"An order for possession was eventually obtained on 26 November 1992. A note of the judgment was taken by a Law Clerk employed by the Respondent Council and I produce a true copy of this in Exhibit RP4. The judge held that the applicant was in breach of the tenancy condition ie. to occupy Charteris Road as his principal or only home. He found that his only or principal home had been Wellesley Road until November 1991. This judgment was just one of many considerations that I had regard to in coming to my decision."

Ms Peart concludes her affidavit by saying that she had studied other documents, specifically those relating to the applicant's divorce proceedings.

12. The inquiries seem to me to have been in total compliance with the duty under section 62. Unlike Mrs Anyanuwa, however, in respect of the local authority's decision of 27 April 1993, Ms Peart appeared to qualify her conclusion that she was satisfied that the applicant's last settled accommodation was Wellesley Road. Whereas Mrs Anyanuwa had proceeded upon the assumption that Wellesley Road was the applicant's last settled accommodation -the decision-letter of 27 April 1993 was emphatic in that regard, since no mention of was made of Charteris Road, even though the applicant had given the latter as his home address on the application form of 4 February 1993 - the review revived the applicant's contention that he had never resided at Wellesley Road but was rendered homeless from his occupation only at Charteris Road. The confusion over the last settled accommodation remained confounded by the decision-letter of 15 September 1993, the document under challenge in these proceedings.
13. In her affidavit of 17 June 1994 Ms Peart acknowledged her duty to determine the applicant's last settled accommodation: "I gathered a great deal of information about both the Charteris Road and the Wellesley Road properties and I came to a decision taking into account all relevant information". In her final paragraph Ms Peart raises a different ground for concluding that the applicant had breached the tenant condition in April 1991:

"I do not believe the applicant has been unfairly treated. He held a secure tenancy of Charteris Road and on his own admission clearly breached the tenant condition by going to live in Wellesley Road. His son occupied the one-bedroomed Charteris Road flat in the meantime."

The section 64(4) later of that date, which had Rosemarie Peart's name as the person to whom any reference should be made (unlike the earlier decision-letter which had only, "this matter is being dealt with by Housing Advisory", and was signed by Sheena Anyanuwa) stated the local authority's reason for decision:

"1. You have a priority need on the ground of age.

2. The Council is satisfied that you became homeless intentionally sometime in December 1991, following an injunction sought by your wife for assaulting her in November 1991. As a result you ceased to occupy accommodation at 20 Wellesley Road, the matrimonial home, which was available and would have been reasonable for you to continue to occupy.

3. The Council has taken into account the fact that you returned to 9 Charteris Road, after the marital breakdown. At first, this was not permanent as you continued to stay at the matrimonial home at the same time, hence moving backward and forward from both addresses.

4. The Council recognised that you returned full-time to Charteris Road in November 1991. This, however, would not have constituted settled accommodation since Co-op had already served you with NTQ and in March 1991 for rent arrears, non-occupation, parting with possession to your son, Ivor Hinds and noise nuisance. You therefore lost your security of tenure in April 1991 when the notices expired, as this was relied upon to terminate your tenancy, which the Court found in Co-op's favour.

5. Further, you lost your legal right to occupation at 20 Wellesley Road under the Matrimonial Homes Act, as a result of your actions towards your wife.

6. The Council recognises that your wife made constant demands for you to leave the matrimonial home but feels that you should have approached Haringey Council for advice and assistance.

14. In reaching its decision, the Council has considered these and other relevant matters in your case and weighed them against the housing conditions prevailing in the London Borough of Islington.
15. As a result of this decision, you will be required to leave temporary accommodation after 28 days.
16. Accordingly, your last date at Twelve Acres Reception Centre, 383 Highbury Quadrant will be 12th October 1993.
17. The reasoned decision at first precedes on the assumption that Wellesley Road was the last settled accommodation in December 1991, even though the application as a homeless person was made on 4 February 1993 as a result of impending eviction from Charteris Road. The decision "takes into account" the return full-time to Charteris Road in November 1991, but then doubtfully dismisses that accommodation as having any relevance to the issue of the applicant's last settled accommodation.
18. I interject here counsel's submissions on the conclusions of the local authority's view that settled accommodation had lapsed by April 1991. Miss Thomas submits that as at April 1991 the applicant was no longer a secure tenant and that notice to quit had the effect of terminating the tenancy. See cites section 81 of the Housing Act 1985 and the decision in London Borough of Croydon v. Buston & Triance (1991) 24 HLR, to the effect that a tenancy ceases to be secure when the tenant condition ceases to be fulfilled, although the contractual tenancy continues until separately determined. Section 81 provides that the "tenant condition is that the tenant is an individual and occupies the dwelling house as his only or principal home". Mr Bowen counters this submission by contending that a short-term insecure tenancy equals settled accommodation for the purposes of Part III of the Act. He submits that on the undisputed facts the applicant lived full-time at 9a Charteris Road from 12 November 1991 until 16 February 1993 when he was evicted (He was threatened with homelessness 28 days prior to that date). He also submits that there is no reference to the question whether the applicant's failure to comply with the possession order caused him to lose security of tenure at Charteris Road.
19. It is unnecessary to decide whether the applicant's tenancy status at April 1991 was such in law as to render him no longer there in secure accommodation. The factual position was that, at least after the end of 1991 and for more than a year thereafter, Charteris Road was his principal, if not actually his only, home. The notice to quit of 22 March 1991 was principally on the ground of arrears of rent amounting to £2363.18. A second ground of complaint was nuisance or annoyance to neighbours.
20. The decision-letter then reverts to the occupation at Wellesley Road and assumes that occupancy was lost as a result of the applicant's conduct towards his wife in November/December 1991. The letter concludes by saying that it has considered "these and other relevant matters in your case ...... "
21. Does this letter comply with the requirement of section 64(4) to give a reasoned decision? I turn now to the law.

Reasons - proper, intelligible and adequate

22. Section 64(4) of the Housing Act 1985 contains a mere requirement that the local authority must notify the homeless applicant the reasons for its decision; it is silent about any standard or quality of the reasons required to be given. What is the nature and extent of this statutory duty to give reasons?
23. There has been much discussion recently as to the present circumstances where there is generally a duty to give reasons in administrative law. While Lord Mustill in Doody v. Secretary of State for the Home Department [1993] 3 All ER 92, at 110 said that "the law does not at present (italics supplied) recognise a general duty to give reasons for an administrative decision", he nevertheless thought it was "broadly beyond question that such a duty may in appropriate circumstances be implied" - the word "broadly" is cited as "equally" in Rose LJ's judgment in R v. Secretary of State for the Home Department, ex part Duggan, CO/507/93, unreported, 3 December 1993. The courts have indeed begun to imply a duty in a variety of public law situations. As Rose LJ said in the Duggan case: "the authorities show an ever-increasing variety of situations where, depending on the nature of the decision and the process by which it is reached, fairness requires that reasons be given" (p 16-17, transcript). He implied a duty in that case where what was being sought to be challenged had a direct impact on the date of a Category A prisoner's ultimate release from custody. In concluding that the Home Secretary was bound to give the reasons which led him to decide that the prisoner should remain classified as Category A, Rose LJ was adamant that no general duty existed in English Law. In so saying, he doubted a decision of mine in R v. Lambeth Borough Council, ex parte Walters (1993) 26 HLR 170 which appeared to the learned Lord Justice to hold the contrary. What I held in that case was that, whenever a statute was infused with the concept of fair treatment to those potentially affected by administrative action, there was to be implied a duty to give reasons. It was noted that, if it were otherwise, a homeless person, whom the local authority was satisfied that he or she became homeless intentionally, and had, therefore, to be given reasons by virtue of section 64(4), would be better protected procedurally than the unintentionally homeless person who was told that his or her rejection of the local authority's offer of suitable accommodation was not acceptable, and that no second offer would be made.
24. There is implicit in Rose LJ's judgment the notion that the duty to provide reasons may arise only where, because of the circumstances of the decision, the decision is in particular need of explanation. Only in such circumstances will reasons assist the person affected determine whether the decision was reached unreasonably or unlawfully; and, so, only in such circumstances does fairness require the reasons be given. Mr N C Campbell, in an analysis article in Public Law, Summer 1994 Issue, pp 184-190 suggests that the decision in Walters "may be premature" and that, other than in cases concerned with the liberty of the subject who is engaged in judicial review proceedings, the duty to give reasons should arise only where the decision under challenge calls for explanation.
25. Such a criterion for judicially imposing a non-statutory duty to give reasons is adversarily-driven. Fairness is conceived only within the context of how one party - the public administrator - ought to treat the other party -the applicant in judicial review proceedings whose application has been dismissed. If that is the right approach to the courts' construction of a common law duty upon public administrators, is the same judicial constraint to be placed upon the nature of any statutory duty to give reasons? In particular, what is the precise scope of the duty to give reasons for decisions under section 64 of the Housing Act 1985? Does judicial review take on the adversarial concept of ordinary litigation? Or has it some more expansive function?
26. The starting point is the judgment 30 years ago of Megaw J (as he then was) in Re Poyser and Mills Arbitration [1964] 2 QB 467. Speaking of the duty to give reasons imposed by section 12 of the Tribunals & Inquiries Act 1988 (repeated in section 12 of the Tribunals & Inquiries Act 1971), he said, at p 478:

"Parliament provided that reasons shall be given, and in my view that must be read as meaning that proper, adequate reasons must be given. The reasons that are set out must be reasons which will not only be intelligible, but which deal with the substantial points that have been raised."

27. This statement was expressly approved by the House of Lords in Westminster City Council v. Great Portland Estates plc [1985] A.C.661, 673. A similar indication of the scope of the duty appears in the judgment of Phillips J in Hope v. Secretary of State for the Environment (1975) 31 P&CR 120, 123 which referred to an inspector's planning decision. Phillips J said:

"It seems to me that the decision must be such that it enables the appellant to understand on what grounds the appeal has been decided and in sufficient detail to enable him to know what conclusions the inspector has reached on the principal important controversial issues."

28. Almost all the jurisprudence on reason-giving has been developed in the field of planning law, where the nature of the dispute is between land developer and opponent of development, with the Department of the Environment the umpire. While that area of public law has, therefore, special features which determine the proper scope of reasons, the judicial pronouncements are of general application.
29. In Save Britain's Heritage v Secretary of State for the Environment in the Court of Appeal (1990) P&CR 539 at 545 Woolf LJ (as he then was) said that in the absence of any legislative direction the courts had to set "the standard or quality" of reasons (The passage in the judgment was headed, The standard of reasons). Two considerations of general application had to be borne in mind: First, whenever the minister's or administrator's decision was the subject of a "right to contest that decision before another tribunal" the person aggrieved by the decision should be able readily to make a proper assessment whether the decision was challengeable; and, second, that the "standard" should not be set at a level which would frustrate or inhibit the decision-making process. The "standard" would vary according to the nature of the decision and the term of the relevant legislation. A lower "threshold" would suffice if the decision had to be made quickly and without an opportunity to reflect on how the reasons should be expressed. Woolf LJ added that the "threshold" would be higher if the decision could be taken at leisure, with legal assistance. Moreover, the importance of the subject-matter of the decision, a higher "quality" of reasoning was required. When the case was heard in the House of Lords, (1991) 3 PLR 17; [1991] 1 W.L.R.153 Lord Bridge of Harwich (at p 29; p 164) cited the passage in Woolf LJ's judgment and said:

"No judge has greater experience or expertise in this field than Woolf LJ and it is with the utmost diffidence that I quarrel with his formulation of principle. But, although this passage embodies much that I accept, I have to say that, in my opinion, in some respects it seeks to put a gloss on the statute which goes beyond the court's legitimate role of statutory construction. I question whether it is apt to speak of the court "setting the standard". If this means no more than that it is for the court in any case to determine, as a matter of construction whether the reasons given comply with the statutory requirement, it is unobjectionable. But in so far as it suggests that the court has a role analogous to that of an education examination board which sets a standard of draftsmanship which a decision letter must reach in order to achieve a pass mark, I think it is seriously misleading. I certainly accept that the reasons should enable a person who is entitled to contest the decision to make a proper assessment as to whether the decision should be challenged. But I emphatically reject the proposition that in planning decisions the "standard", "threshold" or "quality" of the reasons required to satisfy the statutory requirement varies according to who is making the decision, how much time he has to reflect upon it, and whether or not he had legal assistance, or depends upon the degree of importance which attaches to the matter falling to be decided. The obligation, being imposed on the Secretary of State and his inspectors in identical terms, must be construed in the same sense."

30. While these remarks relate to "planning decisions", they seem to me to be of general application, in the sense that the reasoned decision required by the statute must reach a particular level of draftsmanship and expertise. What is required is some guidance to those whose duty it is to compose reasons. The Code of Guidance, made under section 71 to the Housing Act 1985, does not advance the matter. It merely says that the reasons must be "sufficient and straightforward". The better baseline is Megaw J's formulation of "proper, intelligible and adequate". That was the approach of Lord Bridge of Harwich in the Save Britain's Heritage case. He went on:

"The three criteria suggested in the dictum of Megaw J are that the reasons should be proper, intelligible and adequate. The application of the first two of these presents no problem. If the reasons given are improper they will reveal some flaw in the decision-making process which will be open to challenge on some ground other than the failure to give reasons. If the reasons given are unintelligible, this will be equivalent to giving no reasons at all. The difficulty arises in determining whether the reasons given are adequate, whether, in the words of Megaw J, they deal with the substantial points that have been raised or, in the words of Phillips J, enable the reader to know what conclusion the decision-maker has reached on the principal controversial issues. What degree of particularity is required? It is tempting to think that the Court of Appeal or your lordships' House would be giving helpful guidance by offering a general answer to this question and thereby "setting the standard", but I feel no doubt that the temptation should be resisted, precisely because the court has no authority to put a gloss on the words of the statute, only to construe them. I do not think one can safely say more in general terms than that the degree of particularity required will depend entirely on the nature of the issues failing for decision."

31. In the context of the homeless person's legislation in Part III of the Housing Act 1985, the court should, in my view, lay down the general principles which a local authority needs to adopt for the giving of reasons, without in any way "setting standards" or imposing a legalistic regime. Indeed, Lord Bridge acknowledges as much in legislation other than planning. He said (p 29-30):

"Whatever may be the position in any other legislative context, under the planning legislation, when it comes to deciding in any particular case whether the reasons given are deficient, the question is not to be answered in vacuo. The alleged deficiency will only afford a ground for quashing the decision if the court is satisfied that the interests of the applicant have been substantially prejudiced by it. This reinforces the view I have already expressed that the adequacy of reasons is not to be judged by reference to some abstract standard. There are in truth not two separate questions: (1) were the reasons adequate? (2) if not, were the interests of the applicant substantially prejudiced thereby? The single indivisible question, in my opinion, which the court must ask itself whenever a planning decision is challenged on the ground of a failure to give reasons is whether the interest of the applicant have been substantially prejudiced by the deficiency of the reasons given Lord Bridge of Harwich there applied the need for "adequate" reasons to the position of a developer of land or an opponent of development."

32. I turn then to the position of a reasoned decision, not in a vacuum but under the homeless persons legislation and the application of its provisions in each case for decision by the local authority. There are four "parties" affected by the decision under section 64. Clearly, the most important must be the homeless applicant in respect of whom an adverse decision has been made. He or she must be enabled easily to see whether the decision is legally challengeable. Fairness demands that the applicant must be able to determine challengeability; and, if so, on what basis. The challenge may not be only by legal process, which ordinarily is restricted to judicial review, although it might arise in the course of possession proceedings in the County Court. But there may be other routes of challenge - eg, a complaint of maladministration to the Commission for Local Administration (the Local Ombudsman). Apart from a desire to ascertain challengeability, adequate reasons may find acceptance by the applicant as a rational and unbiased exercise of discretionary power, and thus dispel the instinct for challenge.
33. Allied to the need to supply the applicant with proper, intelligible and adequate reasons, the reviewing authority, namely - this court, or the local ombudsman will be better placed to understand the decision and to exercise the reviewing power if the decision is reasoned. More particularly, it can perform the function if the factual foundation for the decision is laid bare. Adequate reasons will expose any errors of law, unsubstantiated findings and extraneous considerations. The third "party" which deserves consideration are the ratepayers of the local authority and, most especially those other homeless applicants who are competing with the affected applicant for priority on the local authority's housing list. They too are entitled to know of the reasons for decision. Fourthly, the machinery of government is advanced by reasoned decision. Public confidence in the decision-making process is enhanced by the knowledge that supportable reasons must be, and are given.
34. Giving reasons is also a self-disciplining exercise. Decisions are more likely to be correct if they are carefully considered and properly articulated. Writing brings clarity and precisionm to thought. Reasons also provide a check on arbitrary decision-making. They avoid allegations of maladministration. There is also the factor that, in the absence of reasons, if all other known facts and circumstances appear to point overwhelmingly in favour of a different decision, the court will draw the inference that the decision-maker had no good reason for the decision: see Lord Keith in Lonrho plc v. Secretary of State for Trade and Industry [1989] 2 All ER 609, 620, clarifying dicta in Padfield v. Minister of Agriculture [1968] AC 997. These features of the reasoning process in the homeless persons legislation demonstrate that the giving of reasons is dictated by factors beyond those operative in adversarial litigation. Reasons in public law situations have a distinct policy purpose.
35. The need do give adequate reasons is all the more important for the fact that many, if not most applicants are not assisted, legally, or by non-legal persons from voluntary bodies with expertise in the field of housing, until at least they are faced with an adverse decision, at which point they tend to seek advice. A common feature of many section 64 decision-letters is that they recite the words of the statute –

"the Council is satisfied that you became homeless intentionally" - and then state, in a list, long or short, the factors which have been "taken into account", without evaluating the various factors or assessing their relative weight. Other factors are mentioned as being "recognised".

36. Given the ordinary requirements that the reasons must be "proper, intelligible and adequate" to the various recipients (or potential and future recipients) of the section 64 decision-letter, it is vital, in my view, that fact must be clearly separated from the weight and influence to be attached to each relevant fact. Local authorities are the exclusive finders of fact and the conclusions to be derived from those facts. As Sir Thomas Bingham MR held in R. v. London Borough of Croydon, ex parte Graham (1993) 26 HLR 286 @ 291:

"Mr Stephenson has, in arguing the matter very ably, as he always does, for the council reminded the court that these are questions for the housing authority and not the court. It is their judgment and not the court's that matters. He has further urged that one should not read a letter of this kind as a statute or even a planning inspector's decision letter and that one should not go through it with a tooth-comb in order to find fault. Nor, indeed, should one deny a reasonably liberal interpretation or elaboration of what lies behind it. I readily accept that these difficult decisions are decisions for the housing authority and certainly a pedantic exegesis of letters of this kind would be inappropriate. There is, nonetheless, an obligation under the Act to give reasons and that must impose on the council a duty to give reasons which are intelligible and which convey to the applicant the reasons why the application has been rejected in such a way that if they disclose an error of reasoning the applicant may take such steps as may be indicated."

37. To be intelligible and to convey the reasons for rejection, the local authority must, first, separate out fact from value-judgment. The facts must be stated as the findings of the local authority and not as undecided considerations, simply "taken account of". Once the facts are found, it is possible for anyone reading the conclusions derived from those facts to assess the reliability of the decision. Since the local authority is the exclusive fact-finder, any court on judicial review will be in an immeasurably better position to exercise the limited supervisory jurisdiction. In those local authorities where decision-making is not delegated to officers, but is retained by the elected members, the separation is the more readily made. The decision-letter can conveniently reflect the facts as elicited by the officers in the course of their inquiries, and conveyed to elected members in the officers' report. It can then review the local authority's conclusion based on the facts found to exist.

Did the decision-letter of 15 September 1993 comply with the requirement for the reasons to be "proper, intelligible and adequate"?

38. Miss Thomas, on behalf of the local authority, submits that paragraph 3 of the letter reveals that the local authority has had regard to the "return" to Charteris Road, but did not see it as constituting settled accommodation, because of the movement backwards and forwards. Wellesley Road was given more status as settled, because it was still the matrimonial home. She further submits that the decision dealt directly with the applicant's contention that Charteris Road was the settled accommodation, after the relationship problems. It was rejected because of the movement back and forth. The matrimonial home was still viewed as the applicant's settled accommodation. There is, therefore, she submits, no error of reasoning, disclosed by the fact that the local authority was examining the movement backwards and forwards to Charteris Road; this is precisely pertinent to the question of whether accommodation was permanent or not. This, in my view, overlooks the fact that any shuttlecocking between the two premises ceased by the end of 1991.
39. Mr Bowen submits that the decision-letter of 15 September 1993 fails to give any, or any adequate reasons. He further submits that it is internally inconsistent and lacks clarity. It gives no indication of the basis upon which the decision was made and/or to the extent to which evidence was accepted or not accepted, and/or the weight which was given to the evidence. In conclusion, he submits that it is not possible to ascertain the reasoning between the decision. Miss Thomas bravely counters that, by submitting that, while there may be a lack of clarity, on the whole it is a well-reasoned decision.
40. In my view, the section 64(4) letter leaves much - too much - to be desired, both in its intelligibility and adequacy. Its primary failure is to mix up findings of fact, other relevant, factual considerations and the conclusions reasonably to be drawn from fact; and to leave the reader puzzled as to the reasoning process. While there is a finding of Wellesley Road as the last settled accommodation, dubiously established in the light of the timing of residence there, the reasoned decision confounds that finding by inserting references to Charteris Road and loss of occupancy of that tenancy, again not soundly based. It is vital that local authorities whose task is to make findings of fact, including a decision as to the last settled accommodation, with absolute clarity, and then to go on to draw the reasonable conclusions from these facts. This decision-letter fails to pass muster on the footing of the law as I have sought to identify, and understand it to be.

Relief

41. Miss Thomas does not now seek to argue that the applicant's delay - a period of eight weeks beyond the 3 months limit in Order 53, rule 4 - in applying for judicial review. The only question is whether the non-compliance with section 64(4) is such as to warrant the quashing of the decision of 15 September 1993.
42. If there is a failure to comply with the duty to give reasons for the decision, but that such failure does not cause substantial prejudice to the applicant, there is authority for the proposition that relief will not be granted. No substantial prejudice is suffered by this applicant, because even if Charteris Road were to be reckoned as the last settled accommodation, the local authority would be fully entitled - indeed bound - to find that the homelessness person's occupation was intentional. But, if the obligation to furnish reasons has been breached, the decision is rendered unlawful. In R v. London Borough of Croydon, ex parte Graham (1993) 26 HLR 286, 292 Steyn LJ said:

"There was some debate about the obligation under section 64 of the Housing Act 1985 to give reasons. I readily accept that the reasons may be very brief and must be read in the context of the matter in question. But to my mind the statutory obligation necessarily imports a duty to furnish adequate reasons for the decision having regard to the issue, or issues, to which the decision relates. In my judgment the idea that material gaps in the reasons can always be supplemented ex post facto by affidavit or otherwise ought not to be encouraged. That in effect is what we have been asked to do on behalf of the council. No doubt questions of the sufficiency of reasons usually involve a judgment as to matters of degree. Nevertheless it seems to me that if the reasons are insufficient to enable the court to consider the lawfulness of the decision the obligation of furnishing reasons has been breached and in that event the decision itself will be unlawful."

43. In the event, I find that the decision of 15 September 1993 is unlawful; accordingly, the application for judicial review succeeds, but I decline to grant the applicant any relief.

THE DEPUTY JUGDE: For the reasons contained in a judgment prepared by me and handed down this morning, this application for judicial review succeeds, but I decline to grant the applicant any relief.

MISS THOMAS: My Lord, in those circumstances, I would ask for an order for costs, not to be enforced without the leave of the court and legal aid taxation. I do that because the applicant has failed to get any relief.

THE DEPUTY JUDGE: The application for judicial review has succeeded.

MISS THOMAS: But certiorari, mandamus and a declaration, all failed to be secured. On that basis, I would ask you to consider, in your discretion, an order in my favour.

MR BOWEN: Can I deal with two matters before I deal with that? Can I take your Lordship to page 9 of the judgment?

THE DEPUTY JUDGE: Yes.

MR BOWEN: It is a mistake on the middle of the page. It is the sentence starting, "He submits that on..." and then I think it should say the "undisputed" facts?

THE DEPUTY JUDGE: Yes, it should be, thank you very much.

MR BOWEN: My second point is that your Lordship has indicated in the judgment that you allow the judicial review, but your Lordship is minded not to grant relief. My Lord, I say this now, probably because it is appropriate for me to take these submissions to your Lordship now, should the matter go to another place.

My Lord, with respect, we were not invited, at least I do not recall being invited, specifically to consider the question of relief when submissions were made to your Lordship. In respect of the findings made by your Lordship, in particular as to the issue of whether it would be inevitable that a conclusion would result if the matter was referred back to the authority and if Charteris Road was found to be the last settled accommodation, in my submission, my Lord, there is good argument to say that is not the case.

My Lord, I would invite your Lordship to hear argument on that. I put that preliminary matter for submission, before I move on to the arguments that I would make, if your Lordship allows me to make them.

THE DEPUTY JUDGE: Miss Thomas, I think I am rather inclined to accede to Mr Bowen's submission that I ought to hear argument on the question of whether there ought to be any relief granted. I will put it back until I have given judgment in the other cases.

MR BOWEN: My Lord, I am in difficulty. I was lately instructed last night in respect of another matter which is before the court, in court 28, which is a full hearing, although I anticipate it will be, whether heard or not heard, heard shortly.

THE DEPUTY JUDGE: It is only next door.

MR BOWEN: I am happy to make those submissions.

THE DEPUTY JUDGE: I have to deal with the Ogoloma case, which you are in, which is the last in the list so, is it going to make much difference?

MR BOWEN: My Lord, no.

THE DEPUTY JUDGE: I will put this back for argument on the question of the relief until the end of judgments in the other cases.

(the court adjourned for a short time)

MISS THOMAS: My Lord, on the question of relief, it is obviously open to you to refuse relief where you consider that granting it would not be expedient or would, in effect, be somewhat futile. Could I take you to page 21 of your Lordship's judgment where you deal with relief? In the last paragraph you say:

"There is a failure to comply with the duty to give reasons for the decision ... (reads to the words)... bound - to find that the homeless person's occupation was intentional."

THE DEPUTY JUDGE: Mr Bowen says that is a wrong conclusion, that if Charteris Road is in fact the last settled accommodation, there is an argument for saying that it would be wrong to make a finding of intentionality under section 60. I think that is the way he puts it.

MISS THOMAS: Well, my Lord, I agree with you in that the local authority, I agree, would actually seem bound to find that the applicant was intentionally homeless from Charteris Road in that period. The Housing Officer would have a look at the circumstances of his leaving Charteris Road in February 1993. Those take on board two matters. The first was that there was a suspended order for possession, granted in June 1991, because of arrears of rent. Also, the second matter, obviously, that there was the eviction for possession hearing, which was in November 1992, which eventually led to the conviction.

My Lord, first of all, just looking at the suspended order, what we do know is that in the circumstances it was not disputed at the hearing, by my learned friend, that the applicant did actually breach that suspended order, certainly before February 1992. Therefore there would have been loss of security of tenure then. That was brought about by the applicant not paying the £15 arrears of rent per week. It would seem to me that one could draw intentionality from that.

Secondly, the Housing Officer would have to look at the question of what the County Court Judge said which led to the actual eviction. My Lord, I am not sure whether you have the bundle, but, if I can just read out what the County Court Judge said there? The judge there basically found the Defendant abandoned the property in 1988, upon his marriage. He lost his security of tenure. The Housing Officer would have to have regard to the fact that the applicant would in effect, by his own actions, have caused that eviction to take place.

Looking at the question as you have identified it in the judgment, I would agree with you that the local authority would be bound to find that there had been intentional homelessness, if one was to accept that the last accommodation was settled accommodation at Charteris Road. Therefore it would seem to me to be futile to give any relief in this case.

THE DEPUTY JUDGE: Yes, Mr Bowen?

MR BOWEN: My Lord, can I start by submitting some guidelines which may be helpful? I am reading from the book of Judicial Review. It is the conclusion in respect of the discretionary bars to granting of relief. I read from page 353 under the heading "Conclusions":

"Cases that are concerned with procedural requirements ... (reads to the words)... which is confidently expected, is by no means that which happened."

THE DEPUTY JUDGE: That was decided by Ackner LJ in the rates forefront case. That is where the issue has never been dealt with at all. You cannot tell what the decision maker might say if that fact were brought to his or her attention.

MR BOWEN: My Lord, yes. What I was then going to do was to address your Lordship on specific points pertinent to this case:

"(3) It is generally desirable that the decision maker... (reads to the words)... forbidden territory of evaluating the substantial merits of the decision."

With respect, my Lord, that is the danger that your Lordship is falling into

"(5) This is a fear where appearances are generally thought to matter.... (reads to the words)... set the matter right."

That, in my submission, is the undisputed background. So far as the issue as to Charteris Road is concerned, I make these submissions ...

THE DEPUTY JUDGE: You would have to say that I was wrong in my conclusion that the local authority would be bound to find intentionality in relation to Charteris Road. If that finding is challengeable, you say then that is a matter for the local authority to decide, which they could have decided in favour of the applicant and that would be enough for the purposes of granting relief?

MR BOWEN: My Lord, yes. Then, going to the particular circumstances of this case and with respect, they are significant, I make these submissions, as it were, rhetorically, in order to demonstrate to your Lordship that there are broader circumstances which the authority should properly consider and the conclusion is not certain.

THE DEPUTY JUDGE: Very well.

MR BOWEN: My Lord, take for the moment the proposition that Charteris Road was the last settled accommodation from November 1991 until February 1993. The basis of that finding would be dependent upon the finding that despite the respondent's view, that it was not secure because of what had happened beforehand, it was settled accommodation for the purposes of intentionality.

THE DEPUTY JUDGE: You say post-November 1991? And to this day?

MR BOWEN: Well, he is not there anymore, because he was evicted. From November 1991 to February 1993. Your Lordship may recall that you invited both counsel to consider the case of Ex parte Awoa (as translated) on this and it would be this. There is a period of 15 months where the applicant lives somewhere. It may or may not be secure, but that is arguably settled accommodation (see Awoa). The basis of that would be it was settled, despite the fact that the applicant had no security of tenure there, in which case the basis upon which the order for possession was made and the applicant was subsequently evicted, was not because of any behaviour looking at that period, but because he moved back into accommodation he had no security at. The fact I would say ....

THE DEPUTY JUDGE: In other words, you are saying that he was simply there in a contractual sense, which did not give him any protection?

MR BOWEN: Yes, my Lord. The fact that it is the same accommodation which he previously occupied has no relevance when looking at that period of settled accommodation followed by that eviction. He was evicted because he did not have security, not because of any behaviour or misbehaviour during that relevant period. Secondly, my Lord, if arguably the authority are entitled to look back at previous behaviour, the previous behaviour was leaving Charteris Road, say the respondents, in order to go and live in Wellsley Road with his wife. My Lord, the evidence which is now before the authority, and I say now before the authority, because it is different evidence than was before the learned County Court Judge, is that according to both the applicant and the applicant's wife, he never treated Wellsley Road as his home and always thought that they were going to move back. In those circumstances, it would at least be arguable and something for the authority to consider, whether pursuant to section 60(3) the applicant moving out of Charteris Road to go to Wellsley Road was on the basis of lack of knowledge of a relevant fact, viz, that after a short time his wife and him would either return or stay, depending on which way you put it, at Charteris Road, of which there was certainly evidence before the authority, and that would, of course, mean that even if what would otherwise be a deliberate act, would cease to be deliberate by reason of section 60(3), because it was on the basis that they had always agreed to move back.

My Lord, those are just two examples the respondents would have to take into account. Possession was granted at a period when the respondents served a notice to quit. The learned trial judge found that he was not residing in that accommodation as his principal home. That was the behaviour prior to moving in. There was no other untenable behaviour. Frankly, my Lord, it is a little disingenuous for the authority now to rely upon a suspended possession order, which they themselves sought to set aside, because of the implications. If they had not set aside that possession order, my Lord, with respect, this matter would never have come to court, because Mr Hinds would still be there. Those are the considerations which the respondent authority would have to consider. Finally, my Lord, legal aid has now been granted to appeal the original possession order on the basis....

THE DEPUTY JUDGE: The possession order of February 1993, was it?

MR BOWEN: Yes, my Lord.

THE DEPUTY JUDGE: You have a legal aid certificate to appeal that decision?

MR BOWEN: My Lord, legal aid has been applied for. I have not been able to confirm this morning whether it has been granted. The basis is this, that a crucial point of evidence which was before the judge was the fact that the applicant had made an application for a right to buy Wellsley Road and despite what he said, there was no evidence to suggest that he had made an application for a right to buy Charteris Road. It was advanced to a level of significance, because it showed not only the credibility of Mr Hinds, but it was evidence of a penicious lie deliberately seeking to gain a link with Charteris Road. It now transpires, after having asked for this evidence for a number of months in the trial, that in a short time the authority were able to come up with the fact that he had in fact had the right to buy in relation to Charteris Road. Because of the prominence which the defendant in those circumstances the local authority, put on that evidence in the trial, and it was axiomatically a piece of evidence which is not available to the tenant because the authority had it, my Lord, the respondents have the benefit of that piece of information now before them and also the information with which weight they can apply such as they wish to, the evidence from the applicant's wife. In those circumstances, those are a number of examples as to why this is not a straightforward case, where a finding of intentionality would inevitably flow. The possession orders, the cause of his eviction from that settled accommodation, were made because he had no security of tenure, in which case it would be the same as if he was somebody who was a lodger who was thrown out by his parents, or somebody else who had decided that they did not want him to live in the accommodation anymore. It is not sufficiently clear, given that there are a number of other factors to be taken into account, for your Lordship to say that the conclusion would inevitably be the finding. It may be the finding that your Lordship should not use the authority's role to make that finding and take into account factors a fortiori where your Lordship has indicated that part of the dissatisfaction of this case is an unreasoned process and an unreasoned decision. In those circumstances I would suggest that relief should be given. The authority can then make their proper considerations.

First of all, it is a red herring to say that on the potential leaving from Charteris Road the defendant might not have known the relevant facts. If I might draw your Lordship's attention to the fact that it was brought to the attention of the applicant that he should be living at Charteris Road when he first left there? The first notice to quit was served around 1989. The defendant wrote back, he was in Jamaica at the time, saying he would be coming back and living at Charteris Road. That did not happen. Even as he went through and got the suspended order for rent arrears it must have, even at that time, been more plain to him that he should be living at Charteris Road. He did not go back on a full-time basis until November 1991. I think it is not valid and not very convincing in this case to say that there would be any arguable case on the defendant leaving Charteris Road intentionally. It seems to me that you were right to say that the local authority would be bound on that basis.

Secondly, dealing with the suspended order, and my learned friend, I do not think, can put this matter fully aside either. As I pointed out, the suspended order was granted in June 1991 and we know that there had been a breach of that. The rent had not been paid by February 1992 and the second notice to quit was served. Therefore, just on the suspended order, there appears to be intentional homelessness. Thirdly, just on the matter of the legal aid being applied for...

THE DEPUTY JUDGE: I suppose I ought to do this. If I were to say that the reasoning of the local authority was fundamentally flawed and that this matter should therefore go back to the local authority to supply proper intelligible and adequate reasons without actually quashing, well, I would have to quash the order, would I not, and give a direction that you should supply reasons? That would avoid having to go through the whole question of section 60 as to intentionality and it would require you to give your reasons and then if they were not adequate, then Mr Bowen could come back to the court and then challenge that reasoned decision.

MISS THOMAS: My Lord, are you saying that we are allowed to stick to our decision ...

THE DEPUTY JUDGE: You would then have to consider what the matters are which you are now putting before me, but you have to cure the defect I have found. I have not made any finding about intentionality in relation to Charteris Road. That is not for this court. What I have said is that the reasoning is defective and therefore the effect ought to be that this decision is quashed and the local authority should supply a proper reasoned decision.

MISS THOMAS: My Lord, in view of what you have said, that the local authority would be bound to find Charteris Road ...

THE DEPUTY JUDGE: I have said that at the moment. That is how that appears to me.

MISS THOMAS: I would urge upon you to leave matters as they are in the judgment, because apart from what I said, that it was right for you to refuse relief, there can be no substantial prejudice at all.

THE DEPUTY JUDGE: There will be no substantial prejudice, on the footing that I was right in saying that you would be bound to come to that decision if you had to reconsider it.

MISS THOMAS: It is open to the applicant to put in an application on that basis so that if they want....

THE DEPUTY JUDGE: ... adequate reasons for its decision.

MISS THOMAS: I can see the force in it. Therefore the upshot is ...

THE DEPUTY JUDGE: After all, the defect that I have found is in the section. I am inclined to make that order, that that reasoned decision cannot stand. If you disagree with that, you can come back to the court. Would you like to take your instructions on that?

MISS THOMAS: My Lord, am I wrong in thinking that it would be open to the applicant to make an application on the basis that Charteris Road was settled accommodation so the local authority ...

THE DEPUTY JUDGE: No, not at this point, it could not be, because he has no relief. The decision of 15th September 1993, although lawful and it gave rise to a successful application for judicial review, did not quash the order, so the order of 15th September 1993 would stand. I have in mind also, Miss Thomas, as you might expect, that this matter might go up to the Court of Appeal in any event, so that my judgment would then be refused. I have not yet heard an application from you with regard to leave to appeal or from Mr Bowen.

MISS THOMAS: As far as the first question goes, I have no submissions to make against that. I can see that the decision of 15th September stands but the local authority could in effect try and

THE DEPUTY JUDGE: I would so order. The relief that I will be prepared to grant in this case is not an order of certiorari. To quash it, would in effect, need an order of mandamus ordering the local authority to give proper, adequate and intelligible reasons for its decision of 15th September.

MR BOWEN: The only way I would see problems with that, is that as your Lordship has said, I think, the decision letter is so flawed that I do not really have to go on to consider any of the other submissions which are made. In those circumstances, your Lordship has not had to make findings about other submissions which are made on behalf of the applicant in the substantive hearing. They will risk that if they simply come up with a decision giving reasons, even if the decision is internally consistent, unlike the other one. I would still have my rights in respect to the overall merits in perversity etc. In those circumstances, those might create more problems in themselves. If your Lordship quashes the decision, they have their choice. They can simply make another decision; they can invite representations; they can protect their position as they see fit. They would have the option simply to come back with the decision and say...

THE DEPUTY JUDGE: Well, of course, if I were to do what I was proposing, it still would not bar the local authority from saying "Alright, we will now regard Mr Hinds as being unintentionally homeless." They would not be prevented from doing that, but the position would be that they would not have to go back to square one and carry out their obligation under section 60 and section 61. That is the difference.

In my written judgment I came to the conclusion that the decision of 15th September 1993 by the local authority was unlawful on the grounds that there had been a non-compliance with the provisions of section 64(4) of the Housing Act 1985, in that the decision of 15th September was not reasoned within the meaning of "reasons" in section 64. In my judgment I have, however, come to the conclusion that the local authority, if the decision of 15th September were to be quashed, would be bound in any event to find that the last settled accommodation was Charteris Road and that the applicant would almost inevitably have been found to have rendered himself intentionally homeless from those premises. Accordingly, I initially declined to grant the applicant any relief, on the grounds that there was no substantial prejudice to him in not granting relief. Mr Bowen, however, persuades me sufficiently to the point, that the local authority would not absolutely be bound to find that

Mr Hinds was intentionally homeless in relation to Charteris Road, but that the likelihood was that he would be so bound. In my view, I ought not to say that the prejudice that I thought would be non-applicable to the applicant really does exist and there may be a possibility that if the matter were to be returned to the local authority for reconsideration, they might come to a different conclusion. I say 'might' as being an outside possibility. However, in the circumstances, since there is a flaw in the process by which the local authority came to make its decision and it has been found wanting in its failure to give reasons, in those circumstances I allow the application for judicial review, but the matter should be returned to the local authority for it to supply proper, intelligible and adequate reasons for the decision of 15th September 1993. That means that the decision itself stands and is not quashed by this court, but the local authority must now reason why it came to the decision it did. As and when that takes place, of course, the applicant himself will be in a position to decide whether or not to challenge the fresh reasons. I ought to add that, of course, the decision of 15th September, that decision, no longer stands and it could, if it felt disposed, it could review the applicant's application as a homeless person for permanent accommodation. While I feel I have said all this in a rather circumlocutory way, I hope that I have made it clear that the application for judicial review succeeds and that the case is referred back to the local authority for it to comply with the provisions of section 64(4) of the Act.

MR BOWEN: There then remains, my Lord, the question of costs. First, I would ask for a legal aid taxation?

THE DEPUTY JUDGE: That you may have.

MR BOWEN: My Lord, we got the judicial review. We have succeeded on the basis that the decision is flawed and we have some relief, if not the relief that we were seeking and I would ask, in those circumstances, that costs follow the event.

MISS THOMAS: I cannot resist that, my Lord.

THE DEPUTY JUDGE: You do not resist that?

MISS THOMAS: No, my Lord, not in the circumstances.

THE DEPUTY JUDGE: Very well. You may have your costs in the application, Mr Bowen.

MR BOWEN: I am much obliged, my Lord.

THE DEPUTY JUDGE: Neither of you wish to apply for leave?

MISS THOMAS: I am sorry, my Lord, I misunderstood what my learned friend said. He asked for his costs of his application?

THE DEPUTY JUDGE: He did indeed. I thought you were not resisting?

MISS THOMAS: No, my Lord. I do resist that. My Lord, I think in this case there should be no order as to costs. I started out by saying that as there was no relief granted it was a case asking you to give me my order for costs but now that some, although very little, relief has been granted, the order should be no order for costs.

MR BOWEN: My learned friend said that she was going to ask for costs if we did not get relief. In my submission what is good for the goose is good for the gander. We have effectively won a substantial part and got some relief in which case, absent special circumstances, costs should follow the event.

THE DEPUTY JUDGE: I think that must be right, Miss Thomas. Mr Bowen's client succeeds on the judicial review and has obtained some relief which really ought to carry the costs of the application and I so order.

MR BOWEN: My Lord, you asked about the question of appeal. I have constraints. I was minded to invite your Lordship to give me leave. The only concern is that I am under a duty by the Legal Aid Board to consider the benefits to my client which will not be apparent until the authority have made a fresh adjudication.

THE DEPUTY JUDGE: I would have thought, on the basis that I have now decided the matter, that you have won and have relief, there is really nothing that you could argue on appeal.

MR BOWEN: No, my Lord. Can I reserve my position on that and, if necessary, make further application to your Lordship?

THE DEPUTY JUDGE: What about you, Miss Thomas? Do you wish to ask for leave to appeal on the basis that the reasons were adequate within section 64?

MISS THOMAS: My Lord, I will ask for leave to appeal. I think there is an arguable point. Especially as you have actually said that a finding of facts should be made and I think that will affect all local authorities.

THE DEPUTY JUDGE: I apprehended that what I was saying about what was required by way of the nature and the extent of section 64 is new to this jurisdiction and, accordingly, you may have your leave.