England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		1 May 2003

1. MR JUSTICE HOOPER: This is an application for judicial review of a decision of the Local Commissioner for West Midlands, Staffordshire, Shropshire, Cheshire, Derbyshire, Nottinghamshire, Lincolnshire and the North of England, whom I shall call "the Commissioner". The claimant now challenges the part of the report of the Commissioner into alleged maladministration by Bridgnorth District Council.
2. To understand the background to the report, it is necessary to make a brief reference to the well-known provisions of Part 7 of the Housing Act 1996, which deals with providing housing for the homeless. By that part of the Act certain duties are owed to persons who are homeless and eligible for assistance or who are threatened with homelessness and are so eligible. The nature of the duty owed depends upon whether a person is in priority need or not and whether or not he is intentionally homeless. The various duties are set out in the Act, starting at section 188.
3. Section 202 of the Act gives a right to request the review of a decision under the preceding sections. By virtue of subsection (3):

"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.

4. Section 203 makes provision for the procedure on a review. It makes provision also for Regulations. The regulations with which I am concerned are the Allocation of Housing and Homelessness (Review Procedures and Amendment) Regulations 1996 No 3122. Paragraph 7 provides that, following a duly made request for a review under section 202, the authority is obliged to notify the applicant that written representations may be made and also to notify the applicant of the procedure that will be followed in connection with the review.
5. Section 203(3) provides that, if the decision made after review is to confirm the original decision in a manner against the interests of the applicant, then the applicant is to be notified of the reasons for the decision. Subsection (5) of section 203 provides:

"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 ... "

6. Section 204 provides that, if an applicant who has requested such a review is dissatisfied with the decision on the review or is not notified of the decision on the review within the time prescribed under section 203, then:

"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.

7. The powers of the County Court on such an appeal are very wide and will involve, particularly if there has been no decision on the review, a thorough consideration of the original decision which the applicant sought to have reviewed.
8. On 16 February 1999 Mrs Glennon, the Housing Officer for the Authority, wrote a letter to the claimant (pages 63 to 64 of the bundle). That letter was in reply to the claimant's application under Part 7 of the Housing Act. The letter told the claimant that she had completed her enquiries in accordance with section 184 of the Act. She said that the Council was satisfied that the claimant was threatened with homelessness, but went on to say that the Council was not satisfied that the claimant had a priority need for housing. The reasons were then given.
9. Later in the letter Mrs Glennon wrote:

"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.

10. In the last paragraph of the letter Mrs Glennon reminded the claimant, who was at the time a councillor, of his right to request a review of the decision and reminded him that such a request must be made in writing within 21 days.
11. On 22 February the claimant replied to that letter (page 65). He wrote:

"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."

12. On 5 March 1999 the Head of Housing, Mr John Hoogerwerf replied to that letter (pages 66 to 67). He notes that the claimant had requested a review of the application. He confirmed that "this was received within 21 days of our notification". He noted that the claimant would "submit detailed reasons for seeking a review following further information from ourselves". The paragraph continues:

"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.

13. Mr Hoogerwerf then refers to the basis of any "appeal" being on one or more of the following grounds. It appears that he meant there "review". I should add that in the correspondence the words "appeal" and "review" are both used. In terms of the statute it should properly be called a "review", whilst in lay language it can properly be called an "appeal".
14. Having set out the grounds upon which such an appeal or review could be based, copies of the appropriate sections of the Act were enclosed. Those were sections 188 to 200. What was sent to the claimant did not include sections 203 and 204.
15. The letter stated that any request should be made to Mr Hoogerwerf in writing.
16. The claimant responded to that letter on 13 April (page 75). In the second paragraph the claimant wrote that it was simply not possible for any rational person to reach the conclusion that he had been voluntarily homeless "unless they had been influenced". The letter then referred to an application for housing that he was then making. In paragraph 6 very serious allegations are made against members of the Council, accusing them of gross misconduct and personal harassment. In the last sentence of that letter the claimant wrote:

"You may take this letter as a formal complaint."

17. On 16 April Mr Hoogerwerf replied (pages 76 to 77). In the first paragraph he wrote:

"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.

18. Thereafter there is a quantity of correspondence (starting at page 78 of the bundle). There is no reference in that correspondence by the claimant to a review. The correspondence consists of serious allegations being made by the claimant and answers or purported answers thereto by Mr Hoogerwerf. I note that on 22 July 1999 the claimant was stating that he was minded to refer the whole matter to the ombudsman, as he subsequently did.
19. Before looking at the challenged part of the report prepared by the Commissioner following the complaint made by the claimant against Bridgnorth District Council, it is necessary to look briefly at the conclusions of Crane J when he granted permission to the claimant, who at that time appeared in person:

"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.

20. During the course of argument, counsel for the claimant sought to bring up the issue of the finding of the Commissioner in the original decision that, amongst other things, the claimant was intentionally homeless. In the light of my decision that this application for judicial review does not succeed, it is not necessary for me to go into that matter at all. It might only have become relevant had I reached the conclusion, which I do not, that the Commissioner's decision should be quashed.
21. To understand paragraph 102, the paragraph mentioned by Crane J, it is necessary to go back to paragraphs 97 and following. In the Commissioner's report the names of those involved have been changed to grant anonymity. It is, I am told by counsel for the claimant, no longer necessary to maintain anonymity and I will therefore take the liberty of changing the names for actual names when I cite passages of the report. I start with paragraph 97:

"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."

22. Paragraph 97 continues with an account of what Mr Hoogerwerf had said during his interview. He had said that a review had taken place. However he later said, on re-reading his letter of 16 April, that he now realised that he had not reviewed the decision, but had merely responded to a complaint by Mr Taylor.
23. Paragraph 100 points out that the review should have been completed within 56 days and continues:

"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.

24. Although the last sentence of that paragraph is not as clear as it could be, nonetheless I take the view that counsel for the Commissioner gives the correct interpretation of that paragraph.
25. I turn to the important paragraph 102:

"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.

26. We looked closely at the Act and the Regulations. Having done so, counsel for the claimant accepted the following propositions. There is no requirement to tell the applicant when he is informed of the procedure to be followed in connection with the review, that he has a right to go to the County Court in the event of a failure to make or notify a decision within 56 days. There is also no requirement to tell the applicant of any right that he has to appeal to the County Court unless an adverse determination is made. In particular, it was accepted that there is no obligation either in the Act or in the Regulations at the end of 56 days and in the absence of any determination to tell the applicant that that he now has a right to appeal. Therefore, to the extent to which in paragraph 102 the Commissioner is not criticising the Council for failing to advise the applicant of his right to appeal to the County Court at the end of 56 days, the Commissioner must be right.
27. It is submitted, however, that she was wrong to reach the conclusion that, no review having taken place, "the Council never reached the point from which advice concerning the appeal would have been appropriate". It is said that, in the light of the other findings by the Commissioner, it would have been right to have found it "appropriate" to tell the claimant at the conclusion of the 56 day period that there had been no determination.
28. One must be careful about reading too much into the language of reports of this kind. I am far from certain that the Commissioner meant by the use of the word "appropriate" anything other than that there was no legal obligation to give such advice.
29. But in any event it seems to me that this is an entirely academic point. What is clear to me, contrary to the submissions of counsel for the claimant, is that, if not at the outset, from shortly thereafter, the Council, through Mr Hoogerwerf, did not think that a review was being conducted. If, at the outset, he thought that the claimant was seeking a review, it is clear that he thereafter treated the matter as a complaint.
30. If, as seems clear, the Council did not think that it was conducting a review under the statutory procedure, then it would be quite wrong to criticise the Council for not having advised the claimant at some point that he had a right of appeal in the event of a failure to make a determination.
31. During the course of the hearing it seemed to me, and I so expressed myself, that this argument had a certain "Alice in Wonderland quality" about it. What the claimant wants to do is to attack the original conclusion that he was intentionally homeless, a conclusion which, as I have said, has caused him a great deal of concern. In fact, if there had been a review, then that is not necessarily the decisive issue. The issue on a review is whether the Council is under a duty under the relevant provisions of the Act. That includes looking at whether or not the claimant was in priority need. It has never been suggested that he was.
32. The claimant had a remedy for challenging the conclusion of the letter of 16 February and that was to go to the County Court. The County Court might have found that he had effectively requested a review on 22 February 1999 and, if they had reached that conclusion, then after 56 days and with no review there would be a right of appeal. It seems to me that at that point in time a judge in the County Court might well have granted some extension of time in which to make the appeal, in view of the correspondence from the Council and in view of what I am told was the medical condition of the claimant at the time.
33. What the claimant is now seeking to do is to achieve that re-determination by attacking the conclusion in paragraph 102 and then asking this Court to grant some remedy which would lead to a review of the original decision by some means or another.
34. There is nothing in paragraph 102 which could lead to the successful challenge of the Commissioner's report. In those circumstances, this application fails.
35. MISS CARRINGTON: My Lord, the Commissioner has not served a statement of costs but, nonetheless, would ask for the costs on the usual basis against somebody in receipt of community legal funding.
36. MR JUSTICE HOOPER: Yes. You are not asking for the costs in the period before that certificate was granted?
37. MISS CARRINGTON: We are in fact asking for the --
38. MR JUSTICE HOOPER: It did not sound as if you were.
39. MISS CARRINGTON: We are asking for the costs of the permission hearing and of today. The costs of today are obviously during the period when he was covered by the certificate.
40. MR JUSTICE HOOPER: So there are two aspects. One I do not think you can object to, namely: the normal order insofar as the costs incurred by the Commissioner after the grant of what used to be called legal aid, subject to the ordinary order that it cannot be enforced without the leave of the Court. I do not think that you can oppose that, can you?
41. MR ROBB: I cannot oppose that, my Lord. I am instructed to apply for detailed assessment of the claimant's publicly funded costs.
42. MR JUSTICE HOOPER: You can have that order.
43. MR ROBB: I am grateful, my Lord.
44. MR JUSTICE HOOPER: What about the application that the claimant should bear the costs up to and including the permission hearing?
45. MISS CARRINGTON: That is correct. I am not entirely sure when the certificate was granted, but it was at some point after the permission hearing.
46. MR JUSTICE HOOPER: Can we assume that no substantial costs were incurred after the hearing? From behind it is being indicated that we can.
47. MISS CARRINGTON: Yes.
48. MR JUSTICE HOOPER: So we are concerned only with the period up to the conclusion, successful for the claimant, of the permission hearing. Do you agree?
49. MR ROBB: We are dealing with costs between the grant of permission and -- no, we are dealing with the costs up to the grant of permission.
50. MR JUSTICE HOOPER: That is right.
51. MR ROBB: My Lord, clearly we were not publicly funded at that time and we are in difficulties. I have to say that we had not received any information up to this point that costs were going to be sought. I would understand that you are entitled to make a summary assessment of those costs. I am in difficulty. All I can say is that Mr Taylor clearly dealt with the case himself until he felt there was a possibility of getting legal aid and he applied for it as soon as possible. The reason he dealt with it himself before that point was that he did not have the money to seek legal support and help elsewhere. I would ask you just to bear that in mind, my Lord, when making your summary assessment.
52. MR JUSTICE HOOPER: Yes. I am not inclined to make a summary assessment without a schedule. On the other hand, I can send it away for detailed assessment, but then the costs of that assessment will be for the defendant because it has failed to put in the schedule. I was rather minded to choose a modest sum. I will give you the modest sum for both of you to consider -- modest in these courts, at least. I was thinking of a figure of a thousand pounds.
53. MISS CARRINGTON: For our part, we have no objection to that.
54. MR JUSTICE HOOPER: I am sure the assessed costs would be significantly larger than that.
55. MR ROBB: My Lord, I understand that you are actually being very lenient there and I am grateful. I have to say that we are in serious difficulty on a thousand pounds, but I have to leave that to your discretion.
56. MR JUSTICE HOOPER: I make an order for the payment of a thousand pounds. I do that knowing that it would very likely have been substantially greater if it had gone to detailed assessment, but it is the 'fault' of the defendant for having failed to produce the relevant schedule. So, trying to avoid further costs but at the same time in the light of my conclusion that this application fails, that is the order I make.
57. MR ROBB: I am grateful, my Lord.
58. MISS CARRINGTON: My Lord, I am grateful.
59. MR JUSTICE HOOPER: Thank you very much indeed.