QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF FRANK TAYLOR||(CLAIMANT)|
|THE COMMISSION FOR LOCAL ADMINISTRATION IN ENGLAND||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MISS G CARRINGTON (instructed by Mayer Brown Rowe & Maw) appeared on behalf of the DEFENDANT
Crown Copyright ©
"A request for review must be made before the end of the period of 21 days beginning with the day on which [a person] is notified of the authority's decision or such longer period as the authority may in writing allow."
Once a request has been duly made, by virtue of subsection (4) of section 202, the authority concerned shall review its decision.
"In any case they shall inform the applicant of his right to appeal to a county court on a point of law, and of the period within which such an appeal must be made ... "
"he may appeal to the county court on any point of law arising from the decision or, as the case may be, the original decision."
Subsection (2) of section 204 provides that the appeal must be brought within 21 days of notification. It was agreed before me that the County Court has power to extend that time. The time prescribed, under the Regulations, for completing the review and notifying the applicant is 56 days. It follows that there is a right of appeal to the County Court if the person is either dissatisfied with the decision that is given or if he is not notified of the decision within the time prescribed.
"The Council is also satisfied that your homelessness is intentional ... "
There then followed the reasons upon which Mrs Glennon relied to make that finding. The conclusion that his homelessness was intentional has caused the claimant a great deal of anguish. He, from the start, has objected strenuously to that finding.
"With regard to your letter of 16 February 1999 I would vigorously contest your conclusions and I would request a review of your decisions.
"However I need to make this a holding request at this time because: a) I do not know the procedure and would need you or another colleague to tell me; b) You seem to feel that you have evidence that there is some offer I could have made to the plaintiff [the landlord] to persuade that would have persuaded [sic] him to abandon his action and re-instate the tenancy. Since this evidence is unknown either to myself or my solicitor I should be grateful if you would let me know the factual basis of this alternative scenario which you have constructed.
"Until I see that it is of course difficult to make progress in asking for a review of your decision."
"The review and appeal process is in two parts, firstly you may seek an independent review of the Council's decision which would be carried out by myself as I was not involved in the investigation of your homelessness nor the decision taken. If you are not satisfied with the determination that I make then you may appeal to the Council's Appeals and Review Board."
The second sentence is wrong. The appeal process following a review which is unsuccessful for an applicant is, as I have pointed out, to the County Court.
"You may take this letter as a formal complaint."
"As you have asked for the matter to be treated as a formal complaint I have passed the letter to the Chief Executive who will be responding to you directly."
He then went on to address a number of issues. Insofar as homelessness was concerned, he wrote:
"My officers determined that your homelessness was intentional following a thorough investigation. I have no doubts that the determination was made in a proper professional manner and I take exception to your suggestion that the officer responsible was influenced in any way other than as a result of the proper investigations. That you do not agree with the decision does not make it irrational."
In the next paragraph Mr Hoogerwerf wrote:
"When I wrote to you on 5 March I was dealing specifically with your notice of an intention to appeal and I was not aware whether you had or did not have a new application form."
The reference to that form is apparently a reference to a new application for housing that the claimant had made. In the last sentence of the next paragraph Mr Hoogerwerf wrote:
"I would be grateful for some indication of when you will be making an appeal against the Council's determination as the 21 day period has long since passed."
The conclusion that one could draw from that sentence is that by now the Head of Housing did not regard the letter of the 22 February as having invoked the review procedure.
"12. Up to a point, of course, there is force in that, but the possible flaw in the argument is that if the Council, by failing to complete the review, never got to the point where the right of appeal arose and they needed to tell Mr Taylor of his right of appeal, they were in effect depriving him of the right of appeal, quite apart from the fact that, under sections 203 and 204, it is arguable that if there is a right of appeal because the applicant is not notified of the decision within the time prescribed, the right to be informed still arises.
"13. I accept that the ombudsman dealt, and dealt properly, with the maladministration of the investigation, including the maladministration in respect of the lack of review, but it is arguable that paragraph 102 effectively rejects the proposition that there was any maladministration in relation to the failure to inform Mr Taylor of his right of appeal to the County Court. It is on this point that I give permission. It is arguable that in relation to the failure of the Council to advise as to his right of appeal, because there was no proper review, the report was flawed. I say that is arguable."
It is clear therefore that the grounds upon which this judicial review is now to proceed are extremely limited.
"Mr Taylor asked that the Council review the decision taken by Mrs Glennon to the effect that he was intentionally homeless. This review did not take place. The initial request from Mr Taylor was that his request for a review be put on hold until he had further information."
"Mr Taylor was not advised of this and no review took place."
The paragraph continues:
"The Council takes the position that Mr Taylor had advised it that he intended to ask for a review but never actually formalised the request. If this is right then it should not have accepted the letter of 22 February 1999 as a request for a review. If that is wrong then it should have conducted a review with or without the extra information referred to by Mr Taylor. Either way I believe that the Council ought to have acted more proactively to ensure that the review took place and I regard the failure to do so to be maladministration."
Counsel on behalf of the claimant sought to persuade me that in that paragraph the Commissioner had concluded that the Council ought to have carried out a review. Counsel for the Commissioner did not accept that interpretation. She submitted that the Commissioner was reaching what she described as a halfway position. The criticism being made by the Commissioner of the Council related to its failure to take the necessary steps to see whether or not a review was being requested by the claimant.
"Mr Taylor makes much of what he regards as the failure of the Council to advise him of his right to appeal to the County Court. This information would have followed any formal review. No such review took place and so the Council never reached the point from which advice concerning the appeal would have been appropriate."
It is that last sentence which forms the substance of the challenge to the Commissioner's conclusions and particular stress is laid upon the word "appropriate". As I have already indicated, at the expiry of the 56 days, in the absence of any review decision, there arises a right in the applicant to appeal to the County Court.