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You are here: BAILII >> Databases >> English and Welsh Courts - Miscellaneous >> Adesotu v Lewisham London Borough Council [2019] EW Misc 3 (CC) (8 February 2019)
URL: http://www.bailii.org/ew/cases/Misc/2019/3.html
Cite as: [2019] EW Misc 3 (CC)
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Case No: E40CL183
IN THE COUNTY COURT AT CENTRAL LONDON
Thomas More Building,
Royal Courts of Justice
Strand
London
WC2A 2LL
Date: 8 February 2019
BEFORE:
HIS HONOUR JUDGE LUBA QC
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BETWEEN:
JOY ADESOTU
Appellant
- and -
LEWISHAM LONDON BOROUGH COUNCIL
Respondent
----------------------
MR NICK BANO (of Counsel) appeared on behalf of the Appellant
MR DEAN UNDERWOOD (of Counsel) appeared on behalf of the Respondent
Hearing date: 9 October 2018
Final written submissions: 17 December 2018
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APPROVED JUDGMENT
I direct that pursuant to CPR PD 39A para 6.1 no recording shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
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Introduction
1. This is my judgment on an application to strike out part of an Appellant’s Notice. [1] The application was made orally by counsel for the Respondent immediately prior to commencement of the hearing of the appeal. The appeal itself is a statutory homelessness appeal from the decision of the Respondent’s reviewing officer. [2]
6. Being satisfied that the Appellant would be suitably accommodated by the Respondent pending the outcome, [3] I acceded to that request.
8. Judgment was delivered in that appeal on 6 December 2018. [4] I invited written submissions upon it from counsel. I am grateful for those submissions, each dated 17 December 2018.
Essential Factual Background
9. The Appellant, Ms Adesotu, is a single parent of three young children. In 2017, she applied to the Respondent, Lewisham Council (‘the council’) for homelessness assistance. The council provided her with interim accommodation pending the outcome of her application. [5]
10. On 11 May 2018, the council notified her of a decision that she was owed the main housing duty under the Housing Act 1996 Part 7 ( Homelessness ) albeit that it was inaccurately referred-to by the council as the ‘full’ housing duty. The duty required the council to secure suitable accommodation for her occupation. [6] The notification informed her that the interim accommodation that she had been occupying was now being provided in performance of the main housing duty.
11. On 22 May 2018, the council wrote her a letter headed “OFFER OF TEMPORARY ACCOMMODATION”. It stated that it was “pleased to be able to provide you [with] temporary accommodation”. The letter described the size and rent of the offered accommodation and stated that its provision was made in performance of the main housing duty. [7]
15. Nothing in the letter indicated how, or by when, the offer was to be accepted or refused.
“Above client was offered PSL today, she has been given a copy of the offer letter but she has not signed. She is saying she needs more time, she tried to kill herself last year etc etc. Please can you have a word?”
“advised her that the council does not like moving people from place to place but it does sometimes become necessary as it has in her case so she needs to accept the property offered or I would have to close her case”.
18. That evening, Mr Frederick sent an email to Ms Adesotu which stated that:
“You have been offered accommodation which you have confirmed that you do not wish to accept. You provided your reasons for refusal and confirmed receipt of the offer letter. Unfortunately, I do not agree that the reasons you gave for refusal justify withdrawing the property. As a result, if you do not confirm by midday of Tuesday next week, after the bank holiday, that you are going to accept the property, I will discharge the duty owed to you and cancel your homeless application”.
“told her that unless she is going to sign the papers, take the keys and move in then it is a refusal, I require an answer, yes or no because she has had enough time. I told her that if she does not confirm with “yes” to all of that it will be a refusal and the property offered to someone else.”
24. His note of the second call reads:
“after talking all around this issue for a while I told her that she was either going to move in or not and I require an answer. She said the property is not safe for her children. She refused to confirm that she would move in. I told her that I concluded that her position is that of refusal”.
“You later visited the address and despite being given several opportunities to confirm your acceptance of the property, you had failed to do so, over a week after the date of the offer letter. You were given a final opportunity to accept the property today but you refused to do so. You, today, claimed that the property was unsafe for your children”.
The Relevant Statutory Provisions
32. As already indicated, section 193(2) sets out the ‘main housing duty’ [8] which is the highest duty that can be owed to an applicant.
“(5) The local housing authority shall cease to be subject to the duty under this section if—
(a) the applicant, having been informed by the authority of the possible consequence of refusal or acceptance and of the right to request a review of the suitability of the accommodation, refuses an offer of accommodation which the authority are satisfied is suitable for the applicant,
(b) that offer of accommodation is not an offer of accommodation under Part 6 or a private rented sector offer, and
(c) the authority notify the applicant that they regard themselves as ceasing to be subject to the duty under this section.”
35. An applicant dissatisfied with the decisions made by a local housing authority has a right to seek a review. [9] From the decision made on review there is a right of appeal to the County Court conferred by Housing Act 1996 section 204 in these terms:
“(1) If an applicant who has requested a review under section 202—
(a) is dissatisfied with the decision on the review,
(b) …
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.”
The Appeal Proceedings
38. Such Amended Grounds were served and filed and were dated 10 August 2018. There are six grounds:
“In its decision that the Appellant refused a suitable offer of accommodation and, accordingly, that the duty under section 193 of the Housing Act 1996 is discharged the Respondent erred in law in that:
Ground 1 . The Respondent breached section 19 of the Equality Act 2010 by applying provisions, criteria or practices that are discriminatory in relation to the Appellant’s disability, and which cannot be justified. The policies, criteria or practices are:
a. Operating a short and inflexible time limit during which an applicant may accept or refuse an offer of accommodation;
b. Not permitting an applicant time in which to take professional advice in respect of an offer of accommodation;
c. Treating an equivocal acceptance of the accommodation as a refusal of the accommodation; and/or
d. Treating a failure to immediately occupy the accommodation as a refusal of the accommodation.
Ground 2 . The Respondent breached section 15 of the Equality Act 2010 by treating the Appellant unfavourably (deciding that the section 193 duty was discharged) because of something arising in consequence of her disability (her delayed and equivocal decision as to whether to accept the accommodation), and the unfavourable treatment was not a proportionate means of achieving a legitimate aim.
Ground 3 . The Respondent breached section 149 of the Equality Act 2010 in that it:
a. Failed to focus very sharply on the Appellant’s disability, the extent of the disability and the impact of the disability upon her ( Hotak & Ors v Southwark London Borough Council & Anor [2016] AC 811);
b. Failed to take into account the Appellant’s disability in deciding whether the accommodation was suitable; and
c. Failed to accommodate the Appellant’s disability by allowing her time to reach a decision as to whether to accept the offer and/or by allowing her time to take legal advice (in breach of sub-sections 149(3)(a)-(b), 149(4) and 149(6)).
Ground 4 . The Respondent misdirected itself in law in respect of whether there had been a ‘refusal’ in that:
a. The correct approach is whether there is ‘sufficient acceptance for it not to be possible to treat an applicant’s communication as a refusal’, and not whether the applicant fails to actually occupy the accommodation offered ( R (Muslu) v London Borough of Haringey (unrep.) CO/3028/2000);
b. The Appellant explicitly accepted the offer by email on 26 th May 2018; and
c. The review decision failed to reconsider whether the Appellant had, in fact, rejected the offer ( Nzamy v Brent London Borough Council [2011] HLR 20, CA).
Ground 5 . The Respondent misdirected itself in law in that the review decision considered whether the accommodation was suitable as temporary accommodation. Instead, because the Respondent owed the Appellant a duty under section 193(2) of the Housing Act 1996, the Respondent was bound to assess suitability on the basis that it was discharging the open-ended permanent accommodation duty.
Ground 6 . The Respondent misdirected itself in law in that it failed to judge suitability by reference to the condition of the property at the time of the offer, but instead took into account proposed adaptations that were not certain, binding or enforceable (child barriers, child-proof latches and/or extra locks or latches on the windows) ( Boreh v Ealing Borough Council [2009] HLR 22).”
“The Appellant raises grounds of appeal which are claims of discrimination under the Equality Act (EA) 2010 . In those circumstances, the Court will be required to make findings as the tribunal of fact and there is relevant evidence that the Respondent seeks to rely upon, including evidence to discharge its burden to prove proportionality under sections 15 and 19 Equality Act 2010, if the Court finds that there has been disadvantage under section 15 or a discriminatory provision, criterion or practice under section 19 Equality Act 2010”
The present application
“The Respondent submits the court must determine the issues under the first and second grounds of appeal for itself, see for example the approach of the Administrative Court (to make findings for itself on the issue of unlawful discrimination and proportionality) in the context of a judicial review including a claim of indirect discrimination in the allocation of housing: R(XC) v Southwark LBC [2017] EWHC 736 (Admin); [2017] HLR 24 (13) and the county court in the context of a possession claim, see: Aster Communities Ltd v Akerman-Livingstone [2015] UKSC 15; [2015] AC 1399 (10) at [38].”
47. The covering Email message read:
“Please also ask the judge to note that the local authority is presently considering the position adopted at paragraph 18 of the attached skeleton, concerning the court’s jurisdiction to determine the issues to which the discrimination-related grounds of appeal give rise. The local authority’s position is that the jurisdictional issue raised by these grounds is a preliminary issue in the proceedings, and it may withdraw the submission that the court has jurisdiction to determine them. In that case, I will of course endeavour to inform the court of any change in position as soon as possible.”
“…please find attached a supplementary skeleton argument on behalf of the local authority, addressing the jurisdictional issues to which the above appeal gives rise. I confirm that I will send a copy of this skeleton to my opponent, Mr Bano, who has been forewarned of these issues and the local authority’s position.
49. That Email was accompanied by a “Skeleton Argument – Jurisdiction” which at paragraph 3 reads:
“Grounds [1 and 2] require the court to consider, as a preliminary issue, whether it has jurisdiction to determine such claims under Part 7 and, more particularly, s.204 Housing Act 1996.”
52. As formulated by Mr Underwood on his feet, his oral application was that:
“In exercise of its power under CPR 52.18(1)(a), the court should strike out part of the Appeal Notice, namely Grounds 1 and 2 of the Amended Grounds of Appeal, because it has no jurisdiction to entertain and determine such grounds.”
Discussion and Conclusion on the Application
56. Mr Underwood advanced his application on two alternative footings:
· First, the County Court does not have jurisdiction under Housing Act 1996 s204 to determine claims alleging unlawful discrimination under sections 15 and 19 Equality Act 2010 as advanced in Grounds 1 and 2, nor can it appropriately do so. ( The Equality Act Point )
· Second, the points of law raised by Grounds 1 and 2 were not points ‘arising from’ the decision made on 25 June 2018 and were therefore not within the scope of Housing Act 1996 section 204(1) (The Section 204 Point) .
57. I shall deal with each in turn.
The Equality Act Point
58. Mr Underwood submitted that the statutory jurisdiction exercised by a County Court under the Housing Act 1996, while appellate in form, is supervisory in nature, so that, in effect, the County Court exercises the same jurisdiction as the Administrative Court would in a judicial review: Runa Begum v Tower Hamlets LBC [2003] UKHL 5, [2003] 2 AC 430 at [7].
59. He contended that such jurisdiction does not permit the County Court to reach its own decisions about the facts concerning an application for homelessness assistance and that to do so would be in excess of its statutory jurisdiction: Kruja v Enfield LBC [2004] EWCA Civ 1769; [2005] HLR 13 at [22]; and Bubb v Wandsworth LBC [2011] EWCA 1285; [2012] HLR 13 at [21] and [22].
(a) whether an applicant for homelessness assistance has a disability or other protected characteristic;
(b) whether there is a causal connection between any such disability or other protected characteristic and a local housing authority’s treatment of the applicant; and
(c) whether the authority’s treatment of an applicant was a proportionate means of achieving its legitimate aims.
65. Such discrimination had, he submitted, arisen in the context of Part 3 of the 2010 Act (services and public functions) and/or Part 4 (premises). In either case, the County Court was the tribunal vested by the 2010 Act with jurisdiction over matters falling under those Parts. [10]
66. When the County Court was exercising supervisory powers akin to those of the High Court, it should not be debarred from examining allegations of discriminatory conduct by a local housing authority which the Administrative Court had recently shown, in a housing related context, could be raised in a claim for judicial review. Reliance was placed on R(on the application of XC) v Southwark LBC [2017] EWHC 736 (Admin), [2017] HLR 24, (2017) 20 CCL Rep 338.
69. The Equality Act 2010 section 113 is careful to constrain access to, and the availability of, remedies for breach of that statute. It provides that proceedings for contravention “must be brought” in accordance with its terms. Those terms contain, inter alia, time limits, [11] particular statutory defences available to defendants, and limits on the availability of remedies.
70. If a statutory appeal constituted “a claim” it would escape those strictures of the 2010 Act. As Mr Underwood submitted, the ‘defendant’ would by that means be deprived of such protections as offered not only by the 2010 Act but also by access to the provisions of the Civil Procedure Rules which relate only to claims. There would be no particulars of claim, no defence, no disclosure, no witness statements, no witnesses, and no access to facilities such as the ability to apply for summary judgment in favour of a defendant. [12] Those points were unanswerable.
75. If, as in Kruga , a homelessness appeal does not permit a judge of the County Court to determine whether a person is “mentally ill” [13] how is a judge permitted to determine if an Appellant is “disabled” or has some other protected characteristic?
76. A fortiori , that restriction has application to the present case in which the reviewing officer expressly found “that you do not meet the definition of disability”. [14] Disability is the only protected characteristic mentioned in Grounds 1 and 2. Moving beyond that issue, how would the judge on the appeal find or resolve the facts relating to such matters as ‘causation’ or ‘proportionality’ essential to many Equality Act 2010 disputes?
77. As Lord Neuberger MR said in Bubb :
“there is no jurisdiction under the statutory scheme for the county court to set itself up as a finder of the relevant primary facts” [15]
78. It might be suggested that this conclusion on jurisdiction allows a reviewing officer to rely on an earlier ‘wrong’ (a council’s earlier discriminatory treatment of an applicant) to ground a decision adverse an applicant’s interests. To that extent the council is relying on its own wrongful discrimination, just as had been asserted in Malcolm v Lewisham LBC, [16] and the House of Lords had there permitted the defendant to take that point. As Lord Bingham had said at [19]: “Parliament has enacted that discriminatory acts proscribed by [statute] are unlawful. The courts cannot be required to give legal effect to acts proscribed as unlawful”.
The Section 204 Point
82. Mr Bano countered that the scope of a County Court section 204 appeal had been authoritatively settled to be as broad as that of the Administrative Court in judicial review; any public law point capable of being taken in the latter forum could be pursued in the former. He submitted that Mr Underwood’s application was seeking to narrow or cut down avenues of challenge that might be pursued against a reviewing officer’s decision on appeal. The issue in the instant case was whether the council “had validly discharged its [main housing] duty” just as in Nzamy v Brent LBC [2011] EWCA Civ 283; [2011] HLR 20. There should be no fetter on the public law challenge that might be mounted in such a case.
83. Mr Bano submitted (and Mr Underwood appeared to accept) that grounds of appeal in homelessness appeals under section 204 not infrequently raised points addressing the illegality of some prior policy of a local housing authority or some failure earlier in the process of the handling of a homelessness application which was asserted to represent a breach of, for example, the duty in Equality Act 2010 section 149 [17] . Indeed, the question of whether the reviewing officer’s decision was reached as a result of his non-compliance with that duty is itself raised by Grounds 3(a) and 3(b) to which no objection was taken.
86. Although it was an authority against him, Mr Underwood very properly drew attention to Tachie v Welwyn Hatfield BC [2013] EWHC 3972 (QB) [2014] PTSR 662 in which, in the context of a section 204 appeal, there was raised a challenge to the local housing authority’s decision to contract-out its statutory review functions. Mr Justice Jay held that the words ‘arising from’ in section 204 were to be given a broad meaning. At paragraph [17] he stated that:
“The point has not previously arisen for judicial determination but in broad terms it is quite clear both on principle and authority that the statutory appeal on a point of law in this class of case is designed to operate in exactly the same way as judicial review, and that any ultra vires issue (in the sense explained by the House of Lords in Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147) is therefore capable of being taken. I discern no merit in the argument that “arising from” should be read restrictively. Furthermore, had there been any merit in this somewhat arid and technical point I could always have reconstituted myself as an Administrative Court possessing the judicial review jurisdiction which Mr Bhose agrees is ample enough to encompass challenges of this nature. In my judgment, section 204 is sufficiently broad to permit Mr Vanhegan to raise the various matters which he seeks to under the umbrella of the common issues, and I must therefore proceed to address the merits of his case.”
87. Mr Underwood submitted, however, that this construction of section 204 has been neither applied nor followed and, in fact, had since been doubted. In a postscript to Panayiotou v Waltham Forest LBC [2017] EWCA Civ 1624; [2018] QB 1232, at [90] Lewison LJ had stated that:
“I cannot leave this case without expressing my disquiet that such wide ranging challenges to the actions of a local authority as Mr Smith has argued are permitted to arise in appeals under section 204 of the Housing Act 1996. The scope of such an appeal was not argued in De-Winter Heald and although in Tachie Jay J held that such arguments were available to an appellant under section 204, I would not regard the point as by any means settled. The original right to apply to the Administrative Court for judicial review was transferred to the County Court because County Courts were thought to have expertise in housing, not in administrative law generally. The right of appeal against a decision on review is a right limited to a point of law arising from the review decision, whereas in substance the points raised are challenges to Haringey's antecedent decision to contract out its functions. The right of appeal under section 204 is unfettered, whereas an applicant for judicial review requires the permission of the Administrative Court. Time for the making of an appeal under section 204 runs from the date when the appellant is notified of the review decision, whereas the substantive decision to contract out may have been made many years beforehand; and an application for judicial review would therefore be out of time. In addition, challenges to public procurement decisions are in general susceptible to challenge under the prescriptive regime laid down by the Public Contracts Regulations 2015 (SI 2015/102). Mr Vanhegan referred us to the decision of this court in R (Chandler) v Secretary of State for Children, Schools and Families [2010] PTSR 749. In that case it was decided that a person might be able to challenge a public procurement decision by judicial review if he has a sufficient interest in compliance with the public procurement regime in the sense that he is affected in some identifiable way; and that he may have such an interest if he can show that performance of the competitive tendering procedure might have led to a different outcome that would have had a direct impact on him: see para 77. This is certainly not an invitation to pursue technical points that do not affect the individual. Mr Smith was entitled to a decision which was lawful in the sense that the test required by the Housing Act 1996 had to be correctly applied, irrespective of the person who applied it. This question was not, however, formally in issue on this appeal and Mr Vanhegan fairly argued that we ought not to decide it. I reluctantly agree; so what I have said on this topic is entirely obiter (a practice which I usually deprecate).”
89. At the conclusion of argument, it seemed to me that these doubts expressed obiter by Lewison LJ were not easy to reconcile with the approach that Lady Hale had taken in Nzolameso v City of Westminster [2015] UKSC 22; [2015] 2 All ER 942; [2015] HLR 22. That was a case in which a reviewing officer’s decision was said, on a section 204 appeal, to have been rendered in error of law by the application of a prior and unlawful policy of the local housing authority as to offers of accommodation. Lady Hale stated, while giving guidance to local housing authorities to adopt and publish their policies, that:
“Indeed, it would also enable a general challenge to those policies to be brought by way of judicial review. In some ways this might be preferable to a challenge by way of an individual appeal to a county court. But it may not always be practicable to mount a judicial review of an authority's policy, and an individual must be able to rely upon any point of law arising from the decision under appeal, including the legality of the policy which has been applied in her case .” [Emphasis added]
91. On 6 December 2018, the Court of Appeal gave judgment in two linked appeals in turn arising from two section 204 appeals: Alibkhiet v London Borough of Brent and Adam v City of Westminster [2018] EWCA Civ 2742. The judgment was delivered by Lewison LJ. It cites extensively from the speech of Lady Hale in Nzolameso . It contains above paragraph [47] the heading “ Adoption and application of a policy ”. It might be thought to have provided an opportunity to resolve the tension between earlier authorities that I have described.
“Although [Lady Hale] said that the decision in any individual case "will" depend on the policies, it is only necessary to go as far as saying that it may do. The contrary argument must establish that the decision in any individual case cannot depend on the policy. The policy must, of course, be a lawful one; and conformably with public law principles relating to policies there must be room for the exceptional case. But in principle, where a public authority has a lawful policy, then provided that it implements the policy correctly its decision in an individual case will itself be lawful: see, for example, Mandalia v Secretary of State for the Home Department [2015] UKSC 59, [2015] 1 WLR 4546 at [31].
“…the Appellant accepts that the error of law is not contained in the section 202 review decision itself (but rather it is part of an earlier stage of the decision-making process) …”
Outcome
HHJ Luba QC
8 February 2019
[1] CPR r52.18
[2] Housing Act 1996 section 204(1)
[3] Housing Act 1996 section 204(4)
[4] Alibkhiet v London Borough of Brent and Adam v City of Westminster [2018] EWCA Civ 2742
[5] Housing Act 1996 section 188(1)
[6] Ibid section 193(2)
[7] Ibid section 193(5)
[8] So described, inter alia, at Housing Act 1996 section 200(1)(b)
[9] Housing Act 1996 section 202
[10] Equality Act 2010 section 114
[11] Equality Act 2010 s118
[12] CPR Part 24.
[13] Kruga at [22]
[14] Reviewing officer’s decision, page 9 last paragraph.
[15] Bubb at [20](v).
[17] As in Hotak v Southwark LBC [2016] AC 811.