QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
B e f o r e :
(sitting as a Deputy Judge of the High Court)
|LONDON BOROUGH OF ISLINGTON|
|Ex parte GERALD HINDS|
John Larking, Chancery House, Chancery Lane, London WC2 Telephone No: 071 404 7464 Fax: 071 404 7443
Official Shorthand Writers to the Court)
MISS M THOMAS (instructed by Legal Department, London Borough of Islington) appeared on behalf of the Respondent.
Crown Copyright ©
THE DEPUTY JUDGE:
"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."
"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."
"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."
"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."
"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.
"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.
Reasons - proper, intelligible and adequate
"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."
"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."
"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."
"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."
"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."
"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".
"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."
Did the decision-letter of 15 September 1993 comply with the requirement for the reasons to be "proper, intelligible and adequate"?
"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."
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.