Jersey Unreported Judgments

2000/18

13 pages

ROYAL COURT

(Samedi Division)

 

31^st January, 2000

(Decision: 17^th December, 1999)

 

            Before:   Sir Peter Crill, KBE and Jurats

                                                            Potter and Le Brocq

 

                                                                      

 

Between                     Mrs. Catherine Adèle Glazebrook, née Hill                              Appellant

 

and                         The Housing Committee of the States of Jersey                       Respondent

 

Application for Judicial Review of Housing Committee decision under Regulation  1(1) (g) of the Housing (General Provisions) (Jersey) Regulations, 1970.

 

                                       Advocate G. S. Robinson for appellant

                               Crown Advocate A. J. Belhomme for respondent

                                                                      

 

JUDGMENT

 

THE COMMISSIONER:     Mrs. Catherine Adèle Glazebrook, the appellant, was born in England in 1968.  Through her parents she is able to qualify as a person entitled to occupy controlled property under Regulation 1(1)(h) of the Housing (General Provisions) (Jersey) Regulations, 1970.  She came to Jersey when she was nineteen and married an Englishman in 1986 and returned to England with him in 1987.  A son, Matthew, was born in 1990.  As a result of the husband's infidelity, the marriage broke up and, following the decree absolute she returned to Jersey, partly to be near her parents (her mother suffers from incipient multiple sclerosis) and partly because she needed comforting by her family.  Shortly before her return her parents had bought a house, "Church End", where it was hoped she and Matthew could live as lodgers whilst she completed her years before obtaining housing qualifications.  Unfortunately she fell foul, inadvertently, of the Housing Law and had to move into her parents' three bedroom house with Matthew in 1998.  In the meantime Matthew had started school at St. Martin's Primary School in September 1997.  In January 1998 he had been referred to Dr. Coverly, a child psychiatrist by his head teacher.  Because of the stress on her mother having an eight year old rumbustious child in the house, the applicant applied to the Housing Committee (of the day) to grant her housing qualifications under Regulation 1(1)(g) of the Regulations on the grounds of hardship.  At that time her former husband was not making any contribution towards the maintenance of Matthew nor was he keeping regularly in touch with the boy which distressed him although he had begun to form a good relationship with his grandfather.

 

THE PROCEEDINGS

 

      To support her application the appellant wrote to the Housing Officer, Mr. E. Le Ruez, on the 4th November, 1998.  In her letter she set out her case in rather more detail than we have thought it necessary to do but in it she made two interesting statements.  First that she had promised Matthew that they would not return to England and second that her family, relatives and friends all lived in Jersey.  As to the first she has had to change her mind, following the final rejection of her application by the then Committee in June 1999.  We shall return to the procedure in a moment.  In July the appellant sought to appeal against the decision.  At the beginning of the hearing we ruled that, as there was no transaction in respect of a specific property, nor a prospective transferor or transferee, she could not appeal, but we decided to continue by way of a judicial review in the light of the decision Reynolds v Housing Committee, (30th October, 1995) Jersey Unreported; (1995) JLR N.I.

 

            Fearing that she might lose what was then an appeal before the court she made tentative arrangements to enrol Matthew into the school he had been attending before they returned to Jersey, although there was some suggestion that he had been bullied there.  Accordingly we heard an application to hear the matter before Christmas so that, if she were unsuccessful she would be in time to enrol Matthew.  As regards her claim about her family and friends all living in Jersey it turned out during the hearing that, in fact, she has a sister and an uncle and aunt not all that far from a small house which she received as part of the divorce settlement.  The equity in the house is about £11,000 and, when we heard the case, it was empty.  Nevertheless she said in evidence that none of her three relatives in England were such as she felt able to approach them for non-financial help.

 

      The Housing Committee rejected her application.  Following what seems to us a rather strange procedure a sub-committee of the same committee that had refused her application looked at it again.  We were not entirely convinced by Mr. Le Ruez's assurance that the sub-committee had to look at any new facts.  A senior States' member then intervened and eventually after some delay (the committee had changed by this time) that member met the sub-committee (the President and one other) on the 18th February, 1999.  The appellant and her mother were present as was the States' member.  The sub-committee agreed that the case would be looked at again and, according to a note prepared by the Law and Loans Manager, Mr. P. Connew, in doing so it would look at it "completely afresh".  On the 18th January the Committee re-examined the application but maintained its decision.  The matter then went to a Board set up under the provisions of the Administrative Decisions (Review) (Jersey) Law, 1982 as amended.  The Board heard the reference to it and, on the 7th May directed the Committee to reconsider the applicant's request.

 

            On 17th May the Committee received a report from Mr. Connew and before reaching a decision instructed him to "conduct research into comparable cases".  The relevant paragraph of the minutes is as follows:

 

"After considerable discussion and in order to assist the Committee in coming to a decision, the Law and Loans Manager was requested to conduct research on comparable cases specifically relating to consents given on the grounds of hardship to children of people who had been born in the Island compared with children of people who had acquired qualifications having completed a period of residence in the Island.  The Chief Executive Officer was requested to seek clarification concerning the medical condition of Mrs. Glazebrook's son."

 

 

Mr. Connew wrote to Dr. Coverly who, on the 1st June, 1999, replied as follows:

 

"Dear Mr. Connew,

 

re: Catherine and Matthew Glazebrook

 

Thank you for your letter dated 18th May asking for further information regarding the above.

 

You ask if the difficulties being experienced by Matthew would generally be suffered by children where there has been a broken marriage and loss of contact with one or other parent.  As with all children these are very difficult circumstances and can often lead to distress and not infrequently behavioural and emotional problems.  Having said this, I feel Matthew's situation is different to that in which many children find themselves, and this is likely to cause an increase in suffering.  This is related to (a) the fact that Matthew idolised his father and (b) that his father although assuming brief contact with Matthew around the end of last year, has now cut off all contact again to the point that he has moved and has not left a forwarding address or telephone number.  Taking both these facts into account, it is not surprising that Matthew is feeling traumatised.  For some children, although they may continue to have feelings for the parent with whom they are not residing, they do not have as intense a feeling as Matthew for his father.  Again, the majority of children even though they may not often see their parents still have some contact via telephone or letter and the opportunity to contact that parent when they wish.  Although Matthew's situation is in no way unique I feel his feelings of rejection are greater than many children living in families where the parents separate.

 

Again, often a child and their parent in these situations are supported by their extended families who take on many of the roles that a partner would have done if the family was complete.  I understand that at the moment there is no one who could act in this capacity for Matthew and his mother on the mainland.

 

In considering whether Matthew's problems have worsened since his arrival in the Island, I feel there has been a deterioration.  When Matthew first came, he was at least aware of where his father was, although he did not have contact.  We did try to contact his father to initiate at least some communication with Matthew which I understand was the end of last year and Matthew in fact did meet with his father for a short period of time which led to them spending a weekend together.  If this had continued, it would have been very positive but unfortunately there was little communication following the visit and subsequent to this his father has moved not leaving Matthew with a forwarding address or telephone number.  This has had a devastating effect on a boy who was optimistic that he again would have time with his father.

 

I hope the above has been helpful and please do not hesitate to contact me if you wish me to clarify any further issues.

 

Yours sincerely

 

Dr Carolyn Coverly

Consultant Child & Adolescent Psychiatrist

 

 

            The Committee met on the 14th June and maintained its decision.  The relevant minute of that meeting is as follows:

 

"3.       The Committee, with reference to its Act No. 8 of 17th May 1999, gave further consideration to the recent findings of the Board of Administrative Appeal, which had met on 21st April 1999, in order to hear the case of Mrs. Catherine Glazebrook (née Hill) in connexion with her application of appeal for consent to occupy property in the Island under Regulation 1(1)(g) of the Housing Regulations.

 

The Committee received an oral report from the Law and Loans Manager and considered correspondence in connection with the case and was reminded that the Board had urged the Committee to reconsider its decision within three months of the date of the hearing.

 

The Committee noted a list of other similar cases that had been considered by the Committee, as constituted at the time, under Regulation 1(1)(g) of the Housing Regulations, and was able to draw comparisons of the hardship experienced in those cases as compared to the circumstances of Mrs. Glazebrook.  The Committee formed the view that the medical evidence produced in the case of Mrs. Glazebrook was not as convincing as it might have been as it did not necessarily indicate that this was resultant from its decision not to grant consent on the grounds of hardship but rather that this was symptomatic of families experiencing the effects of divorce.  Furthermore, Mrs. Glazebrook's case was no different to many others that had been placed before it in the past for which consent had been declined, however, she had the benefit and support of an extended family, which was resident in the Island.

 

The Committee, having agreed that while it had great sympathy for Mrs. Glazebrook's circumstances, as it had, indeed, for many of the applications brought before it under Regulation 1(1)(g) of the Housing Regulations, formed the opinion that Mrs. Glazebrook's case was not any worse than many other comparative cases which had been rejected in the past as there was no compelling evidence that excessive hardship would result from its decision.  Furthermore, the Committee expressed the following views -

 

(a)        that the Board had not made sufficient comparisons to the numerous other submissions under Regulation 1(1)(g), many of which presented situations of emotional and physical trauma exacerbated by their individual difficulties to have access to the controlled housing market and their personal circumstances such as marriage/relationship breakdowns;

 

(b)        that the Board would have had limited appreciation for the extent of such cases noted above when considering the case of one family in isolation;

 

(c)        that while it was not disputed that children were made to suffer emotional and behavioural disturbance during relationship breakdowns, this was a common issue that arose in hundreds of other cases that were considered by the Committee under this Regulation, and was, therefore, not unique to Mrs. Glazebrook's case;

 

(d)        that the Housing Regulations already accounted for qualified and non-qualified persons in terms of the required period of residency to be achieved prior to obtaining full residential status, and that Mrs. Glazebrook had made her own decision to come to jersey with her son in order to receive the support of her parents, assumably, in the light of the current restrictions under the Housing Law and Regulations.  Mrs. Glazebrook's actual period of residency, not withstanding her mother's unfortunate illness, was in fact very limited;

 

(e)        that while the location of Mrs. Glazebrook's present accommodation was not as convenient for her son's attendance at his present school, it would not be impossible to find some other form of accommodation that would allow her son to continue at this school;

 

(f)        that as the Law itself discriminates in favour of those persons possessing residential qualifications, as a single mother, Mrs. Glazebrook's case was no different to many other single parents without residential qualifications living in the Island, but unlike those with no family connexion, she would qualify in less than six years time.    

 

The Committee, with the foregoing in mind, decided to maintain its former decision to decline Mrs. Glazebrook consent under Regulation 1(1)(g) of the Housing Regulations, and to advise the Board of Administrative Appeal of its decision, and detailed reasons for it, accordingly.

 

The President and Senator W. Kinnard arranged to meet Officers of the Department in order to take the necessary action and to draft a press release."

 

It is from that decision that the appellant seeks a judicial review.

 

            The Committee was aware that the matter was sensitive because the appellant's father is a Deputy. There is no evidence that that fact influenced the Committee in arriving at its decision other than to make sure that, to the best of its ability, it reached an objective and unbiased decision.

 

      On the 18th June, 1999, the President of the Committee wrote to the Chairman of the Board as follows:

"Dear Mr Jeune

 

I refer to the hearing by a Board of Administrative Appeal, chaired by yourself, of a complaint against the decision of the Housing Committee not to grant consent to Mrs C A Glazebrook under Regulation 1(1)(g) of the Housing General Provisions (Jersey) (Regulations) 1970, as amended.

 

I would confirm that at its meetings of the 17 May and 14 June 1999 the Housing Committee reconsidered its decision as requested in the Board's findings dated 7 May 1999.  In the course of these deliberations the Committee reviewed previous decisions taken in respect of other applications made under Regulation 1(1)(g) and also sought and received further clarification from Dr Coverley with regard to the behavioural difficulties being encountered by Mrs Glazebrook's son.

 

Having taken a very long and careful look at both the findings of the Board and the submissions made by and on behalf of Mrs Glazebrook, I would advise you that the Housing Committee can still see no compelling justification for altering its decision in this case and does not accept the Board's finding that, in arriving at the decision to reject Mrs Glazebrook's application, it had been unduly oppressive and unreasonable and that excessive hardship would result.

 

The Committee noted that in paragraph 5.1 of the Board's findings, the Board had taken a note of the "tests of balance" which the Committee has to require of each case under its consideration and noted that the Board then went on to "decide on the facts of this particular case whether the Committee's decision was unreasonable and would subject the complainant to an excessive hardship".

 

The Committee is of the view that the Appeal Board has not given sufficient weight to the many other submissions that are made to the Committee in a variety of circumstances by other persons seeking consent under this Regulation.  The Committee, in the course of its daily business, is regularly faced with families and individuals experiencing all types of physical and emotional trauma caused by their inability to have access to the controlled housing market by virtue of not possessing residential qualifications, often worsened by personal circumstances such as marriage or relationship break-ups.  The Committee does recognise the difficulty a body such as the Board would have in fully appreciating the extent of the difficulties faced by a large number of other residents in the Island, when all the problems of one particular family are placed before them.

 

The Committee noted in paragraph 5.2 that the Board reiterated the comments of the Chief Executive Officer of the Housing Department "that a child might well represent a significantly greater level of hardship in any given case".  Unfortunately, children of various ages form part of the majority of applications to the Committee under this Regulation.  The Committee does not dispute that any disruptive or emotional and behavioural disturbance in such children is cause for greater consideration, but the Committee is aware in its dealings with so many relationship breakdowns where there are children that, in almost every case, there is a degree of emotional disruption to the children involved.  The Committee noted the Board's comments that this was "unlikely to happen in hundreds of other cases" but, regretfully, in the Committee's view, it does.

 

The Committee fully accepts the Board's comments in paragraph 5.3 with regard to consents under this Regulation which, in the past, have been granted where medical circumstances have been submitted as part of the considerations.  Once again, in the majority of submissions to the Committee, there is an element of support or comment from professionals in the medical area.  Although not professing to be in any way medical experts, the Committee nonetheless has to take into account the submissions and apply the tests of balance as it does with all other relevant submissions.  The Committee would not like it thought that merely the presentation of medical evidence to support difficulties being faced by many applicants has historically caused it to grant consent but, rather that submissions of this nature do add to the weight of any case submitted.

 

The Committee noted the Board's comments in paragraph 5.4 of its findings with regard to the appropriateness of a member of a Jersey family being granted consent as opposed to a person without local connection.  The Housing Regulations already take this into account by virtue of the fact that persons with local family connections are required to achieve an aggregate period of ten years before fulfilling the requirements of the Regulations, whereas persons with no local connections have to achieve a continuous period of residence, currently twenty years.  The Committee does not dispute that, in this case, Mrs Glazebrook  made the decision to remove herself and her son to Jersey in order to receive the support of her parents.  The Committee is of the view that in arriving at this decision, both Mrs Glazebrook and her parents would have taken count of the current restrictions caused by the Housing Law and Regulations and, although fully understanding that Mrs Hill's unfortunate illness has made living en famille in Mr and Mrs Hill's current property more difficult, it must be remembered that Mrs Glazebrook's actual period of ordinary residence in the Island is relatively short.

 

In noting Mrs Glazebrook's submissions referred to in paragraph 5.5 with regard to the location of her residence and the attendance of her son at his present school, the Committee accepts that it might not be as convenient as would be liked but does not accept that it would be impossible to find some form of accommodation that would allow her son to continue at his present school.

 

The Committee has taken full account of the family's Jersey background, as does the Law itself which discriminates in favour of those who are children of persons with residential qualifications.  Whilst Mrs Glazebrook is a single mother bringing up a child with some emotional and behavioural difficulties, she is no different to many other single parents without residential qualifications living in the Island.  In Mrs Glazebrook's case, unlike those with no family connection, if she remains on the Island she will qualify in less than six years time.

 

I would like to assure the Board that the Committee has not taken this decision lightly.  The Committee does welcome outside scrutiny of its procedures and deliberations but, with all due respect to the very careful considerations the Board has made, the Committee is of the view that, in this case, the experience gained in considering submissions made by and on behalf of other applicants in all sorts of trying and difficult circumstances, enables the Committee to maintain its view that its decision in this case, although admittedly being very hard, is the right one.

 

Yours sincerely

 

DEPUTY SHIRLEY BAUDAINS

PRESIDENT, HOUSING COMMITTEE

 

cc:       Jurat Allo

            Miss C Vibert

            Mrs C Glazebrook"                                                                            "

 

      The Committee has been criticised for not heeding the opinion of the Review Board.  We should look at three matters in that report.  First however we must look at the Administrative Decisions (Review) (Jersey) Law, 1982 as amended.  Article 9 (2) sets out those matters which entitle the Board to request the Committee to reconsider the matter.  The sub-article is as follows:

 

"(2)      Where a Board after making enquiry as aforesaid is of opinion that the decision, act or omission which was the subject matter of the complaint -

 

            (a)        was contrary to law; or

 

(b)       was unjust, oppressive or improperly discriminatory, or was in accordance with a provision of any enactment or practice which is or might be unjust, oppressive or improperly discriminatory; or

 

(c)       was based wholly or partly on a mistake of law or fact; or

 

(d)       could not have been made by a reasonable body of persons after proper consideration of all the facts; or

 

(e)       was contrary to the generally accepted principles of natural justice;

 

the Board, in reporting its findings thereon to the Committee, Department or person concerned, shall request that Committee, Department or person to reconsider the matter."

 

It is interesting to note that the Board after it had been rebuffed by the Committee did not avail itself of the provisions of Article 9(4) which allows the Board to refer the matter to the States.

 

            We now look at the three matters in the Board's report we have mentioned.

 

1.         In paragraph 5.3 the Board says that it would be more appropriate for the applicant as a member of a Jersey family to be granted consent than it would be for a person without local connections to be allowed to gain residential qualifications.  That is a most unfortunate observation and quite outside the Board's duties.

 

2.         The Board erred in supposing that the applicant had no relatives other than in Jersey.  It may have been misled.  It did say that the applicant had no other relatives other than those in Jersey to whom she could call upon for assistance, which is what eventually the applicant told us.  Its conclusions had no such qualification.

 

3.         Its decision was that the Committee had been unduly oppressive and unreasonable in its decision not to grant consent and that an excessive hardship would result.  Having regard to the terms of Article 9 (2) of the Law under which it was acting the word "unduly" seems redundant.  It did not find that the Committee had been "unjust".  Presumably it decided in using the word "unreasonable" that the decision was as Article 9 (2)(d) says (the act or omission) "could not have been made by a reasonable body of persons after proper consideration of all the facts."  Furthermore it is a pity that the Board introduced the adjective "excessive" qualifying the noun "hardship".  As will be seen in a moment it does not appear in the Housing Regulations and led to counsel for the appellant submitting that when the Committee itself repeated the adjective it erred in law.  We disagree.

 

THE PLEADINGS AND ARGUMENTS

 

            There were six grounds of what was then thought to be an appeal.  They were -

 

1.         The respondent failed to take into account and give sufficient weight to the advice of Dr. Coverley, child psychiatrist, regarding the appellant's son and the adverse effect which a return to England would have on him.

 

2.         The respondent failed to take into account and give sufficient weight to the advice of Howard Gibson FRCP, consultant physician and neurologist, regarding the state of health of the appellant's mother, which made it clear that the appellant and her son could not continue to reside "en famille", because of the deleterious effect that would have on her mother's health.

 

3.         The respondent failed to take into account the appellant's aggregate ordinary residence of 4½ years, and failed to consider that this would be an appropriate case to shorten the time limit specified in sub-paragraph 1(1)(h) of the Regulations.

 

4.         The respondent failed to take into account that the appellant does not have the means or the income to rent unqualified accommodation.

 

5.         The respondent has been inconsistent in its approach in the light of consents it has given to other applicants under sub-paragraph 1(1)(g) of the Regulations.

 

6.         The respondent has failed to give due weight to the findings of the Board of Administrative Appeal dated 7th May 1999.

 

            The Committee cited Regulation 1(1) (g) which is as follows:    

 

"(g)      the Committee is satisfied that the hardship (other than financial hardship) which would be caused to the purchaser, transferee or lessee or to persons ordinarily resident in the Island if consent were not to be granted outweighs the fact that he does not fall within [any sub-paragraph of this paragraph];"

 

 

      It then set out in paragraph 2.4 of its pleading the nub of the matter.  That paragraph reads:

 

"2.4     When considering an application for consent pursuant to Regulation 1(1)(g) of the 1970 Regulations the Respondent is therefore required to balance the hardship which may be caused to the purchaser, transferee or lessee or to persons ordinarily resident in the Island if the application is refused against the fact that the applicant does not otherwise fall within any of the remaining sub-paragraphs of Regulation 1(1) and will not therefore otherwise stand to qualify for consent pursuant to the 1949 Law and 1970 Regulations.

 

            Implicit in the exercise of discretion by the Respondent in this regard is an understanding that granting consent will automatically lessen the amount of accommodation available for those persons who would otherwise qualify pursuant to the 1970 Regulations."

 

It then set out the present grim housing position of people wishing to be housed by the States.  It has risen from 268 in 1996 to 422 at the time of the hearing.  At the time of the appellant's letter to the Housing Officer in November it stood at 352.  At paragraph 4.3 the Committee set out the difficulties it faced.

 

"4.3     Bearing in mind the volume of applications for consent pursuant to Regulation 1(1)(g) of the 1970 Regulations the Respondent has to draw a difficult line between showing compassion in appropriate individual cases and taking into account the overall needs of individuals and families who otherwise qualify pursuant to the 1949 Law and the 1970 Regulations who may themselves often be living in far from satisfactory housing conditions."

 

 

      Very little was added by way of oral evidence to the medical reports that were before the Committee.  The evidence of Mr. Le Ruez was helpful.  He accepted that, although the Committee tried to be consistent there had been cases of apparent inconsistency.  The Committee would have had the table of statistics before it.  About 35 to 40% of 1(1)(g) applications were refused.  Each consent under that Regulation added to the hardship of those already qualified and who had been waiting for a long time.  Access to the qualified, and in his opinion, privileged, list meant that there was one less unit available for people who were in quite unsuitable accommodation.  He said that it was unacceptable to have to pay more than one half of one's income in rent.  It was difficult to find accommodation in the non-qualified sector but not impossible.  On the other hand the appellant testified that she had tried without success to find something within her means.  Unfortunately financial hardship is not a ground justifying consent under Regulation 1(1)(g).

THE LAW

 

      The question of the scope of judicial review was reviewed extensively by the Court of Appeal in Planning and Environment Committee v Lesquende Limited (1998) JLR 1.  It approved the grounds that had been adopted in a line of cases by this Court and encapsulated in the words covering the grounds to support a judicial review "illegality, irrationality and procedural impropriety".  Since we have ruled on the first and the appellant does not allege the third, we are only concerned with the second.

 

      Whilst the Court of Appeal in Lesquende used the term "irrationality" the decided cases in Jersey have kept to the term "unreasonable".  That is that the decision was such that no reasonable body could have come to.  In the CCSU case at page 951 Lord Diplock defined it more dramatically.  He said "... it applies to a decision so outrageous in its defiance of logic that no sensible person who had applied his mind to the question to be decided could have arrived at it."  Both counsel cited Rukat v Rukat (1975) 1 All ER 344 where it was laid down that "hardship" is not a term of art and that the courts should construe it in a common sense way, and the meaning put upon the word should be such as would meet with the approval of ordinary sensible people.

 

CONCLUSION

 

      Even accepting that not all the decisions under Regulation 1(1) (g) have been wholly consistent, nevertheless as was stressed to us by Mr. Le Ruez and Mr. Connew, each case has to be decided on its merits.  We cannot find that there was that degree of irrationality or unreasonableness that would require us to interfere.  The application must be dismissed.  There will be no order as to costs.

Authorities

 

Housing (General Provisions) (Jersey) Regulations, 1970.

 

Reynolds -v- Housing Committee (30^th October, 1995) Jersey Unreported; (1995) JLR N.1.

 

Administrative Decisions (Review) (Jersey) Law 1982, as amended: Article 9 (2).

 

Planning & Environment Committee -v- Lesquende, Ltd. (1998) JLR 1 CofA.

 

Council of Civil Service Unions -v- Minister for Civil Service (1985) AC 374; (1984) 1 WLR 1174; (1984) 3 All ER 935; (1985) ICR 14; (1984) 1 Sol.Jo. 837; (1985) IRLR 28.

 

Rukat -v- Rukat (1975) 1 All ER 344.