Hackney v Sareen

This is an appeal by the London Borough of Hackney (“the Council”) against the order of His Hon. Judge Cotran on 21^st June 2002 allowing the appeal of Papinder Sareen against two decisions of the Council. The first was its initial refusal to review under section 202 of the Housing Act 1996 its decision not to refer his application for housing under Part VII of the Act to another authority, the London Borough of Ealing. The second was its decision, following a non-statutory reconsideration, not to refer the application.

There are three issues in the appeal, of which the first is the most important:

For the avoidance of doubt, I should note that the amendments to the 1996 Act made by the Homelessness Act 2002, the majority of which came into force on 31^st July 2002, shortly after the orders appealed against, do not materially affect the provisions of the 1996 Act considered in this judgment.

On 13^th July 2000 Mr. Sareen applied to the Council as a homeless person for housing for his wife and himself and their children under part VII of the Act. In the application, his caseworker noted that he would like to be housed in Southall “near his family friends”; Southall is situated within the London Borough of Ealing. The Council placed the applicant and his family in temporary accommodation in Enfield while they inquired into his eligibility for assistance and the duty, if any, owed to him under Part VII. Because of the caseworker’s note about his wish to live in Southall, it also gave him a form in which to provide details of the suggested family connections there. However, as he did not return the form or provide any more information about those connections, the Council made no inquiries about them at that stage. In the result, towards the end of August 2000, the Council concluded that he was unintentionally homeless, eligible for assistance, had a priority need and that it would not refer his application to any other housing authority. It, therefore, accepted an obligation under section 193(2) of the Act to secure the provision of housing for him and his family. By a pro forma letter of 31^st August 2000, it informed him of those decisions, concluding with a statement, the correctness of which in relation to the non-referral is the first issue for decision in this appeal, namely that he had a right for the decision to be reviewed.

By letter of 11^th September 2000 Mr. Sareen’s solicitors sought a review of the decision, but only as to the Council’s decision not to refer his application to any other authority. In the letter the solicitors stated that he had no connection with Hackney but that he did have connections with the London Borough of Ealing. And they gave details of relatives of Mr. and Mrs. Sareen in or in the area of that authority and, also urged as special reasons their need to be near or part of a Sikh community The letter thus provided the Council for the first time with information particularising the cryptic indication given in Mr. Sareen’s original application that he would like to be housed in Southall near his family friends.

By letter of 27^th November 2000 the Council informed the solicitors that there was no right of review of a decision not to refer under section 202, but, in the light of the new information, it was prepared to reconsider on a non-statutory basis whether Mr. Sareen and his family had a local connection with the London Borough of Ealing, and proposed a meeting to discuss it. As it happened, on the very same day, Mr. Sareen’s solicitors had lodged an appeal, purportedly under section 204 of the Act against the Council’s earlier refusal to review its decision not to refer the application to the London Borough of Ealing.

The Council then inquired into the claimed local connection with the London Borough of Ealing. Its officers interviewed Mrs. Sareen and she apparently persuaded them that she and Mr. Sareen had relatives in the Ealing area who had lived there for some years. However, the Council, on completion of those inquiries and reconsideration of the matter, concluded that the Sareen family had no local connection with Ealing through family association. In a long and detailed letter to Mr. Sareen of 4^th September 2001 it informed him that it had so concluded because: the relatives had not lived there for a sufficient period of time as indicated by way of guidance in an agreement between the associations of housing authorities (“the Local Authority Agreement”); because of insufficiency of closeness in the relationships with the Sareens; and because their wish to be near or part of a Sikh community did not in the circumstances amount to special reasons for departing from the normal approach indicated by that guidance.

By the time of the hearing of Mr. Sareen’s appeal in the County Court in June 2002 there were, as I have indicated, three issues for the Judge’s determination.

As to the first, the applicant’s rights to a review of the Council’s decision not to refer his case to the London Borough of Ealing and consequentially to appeal to the County Court, the Judge held that there was a right to a review and hence that he had jurisdiction to consider its lawfulness on appeal. In so holding, he dealt with the matter in general terms and without indicating the provision in the Act that he considered conferred the right of review. He said, at page 11 of his judgment:

“This appeal was initially for the non-review of the matter. I have examined the sections that [Miss Roberts] refers to and it seems to me that it is clear that there is a right to review certainly the statement in the original letter which states that: ‘It is not proposed to refer the matter to another local authority.’”

He added that the issue was, in any event, academic, since, although the appeal was against non-review, the Council had gone on to conduct a review and hence he was entitled to consider the lawfulness of it by way of appeal under section 204, applying judicial review principles.

As to the second issue - assuming that there were such rights of review and of appeal to the County Court - namely whether the Council had had a duty from the outset to investigate the issue of other local connection, he held that the Council had had such a duty. He said that the early indication in the application of Mr. and Mrs. Sareen’s wish to live in Southall near their family friends imposed a duty on it to investigate that connection and that, because it did not do so in making its first decision not to refer, he was obliged to quash that decision.

On the third issue, the lawfulness of the Council’s second decision on reconsideration of the matter not to refer, he held that the Council had erred in law by not investigating the matter properly and/or in sufficient detail and that the decision was, therefore, flawed and should be quashed.

In outline, the scheme of Part VII of the 1996 Act is to impose the primary responsibility for discharge of the duties to the homeless under its provisions on the authority to which an applicant first applies for housing assistance. Although the authority to which an applicant applies is usually one for the area in which he happens to be or with which he has some connection, he can apply to any authority irrespective of local connection. In so applying, he triggers an obligation under Part VII on that authority to inquire into and determine his eligibility for housing assistance and, if it determines that he is so eligible, to impose on it the primary statutory duty to house him. The authority can only shed that primary duty to the applicant if it is entitled to pass it to another authority in accordance with the referral provisions in Part VII, which turn on considerations of local connection. The statutory scheme is such that it contemplates - not unreasonably – that applicants for housing under the Act will apply to the authority in which they wish to be housed. It is not a scheme in which applications may be made to one authority with a view to it acting as a search agent for the applicant to find or secure housing for him in another authority area in which he wants or might like to live. The draftsman clearly contemplated that if an applicant wished to live in a particular local housing authority area he would apply to that authority.

The power of an authority to refer the statutory duty to secure housing assistance to an applicant arises only after it has concluded that there is such a duty. It then has a discretion, subject to the provisions of the Act, to pass that duty to another authority, but it has no duty to do so. In ordinary circumstances, for which the parliamentary draftsman was clearly providing, the exercise of discretion to refer is not what the applicant wants, otherwise he would or should have applied to that other authority in the first place. On the other hand, the exercise of discretion not to refer is exactly what he wants, the shouldering by the authority to which he has applied of the statutory duty to house him in the area in which he wants to live. Given such considerations, it is not surprising that there is apparently no reported authority of an applicant’s challenge, successful or otherwise, of an authority’s decision not to refer.

I should now look at the material provisions in Part VII in a little more detail in order to make good that general outline of its scheme where referral is or might fall for consideration. The starting point is section 183(1) which enables an applicant to apply to any local housing authority in order to establish his entitlement to housing assistance under Part VII. It provides that the scheme set out in the remainder of that Part applies:

“where a person applies to a local housing authority for accommodation, or for assistance in obtaining accommodation, and the authority have reason to believe that he is or may be homeless or threatened with homelessness.”

Thereafter, as Miss Clare Roberts, counsel for the Council, has helpfully identified for the Court, there are five possible stages in the progress of an application for housing assistance where an authority gives consideration to its power to refer:

The authority, if it has reason to believe that an applicant may be homeless or threatened with it, must make inquires to satisfy itself whether he is eligible for assistance, and, if so, whether “any duty, and if so what duty, is owed to him” under the Act. It should be noted from that passive formulation of the test in section 184(1) that the authority does not have to decide at this stage whether it owes any duty to the applicant, only that the applicant is owed such a duty.

authority’s determination of duty to provide housing assistance subject to its discretion to refer duty to another authority – sections 184(3) and 193(1) and (2)

If, as a result of its inquiries, the authority determines that an applicant is unintentionally homeless, eligible for assistance and has a priority need, it is obliged by section 193(2) to secure accommodation for the applicant (“the main housing duty”) unless it refers the application to another local housing authority under section 198. The Act does not impose a duty on the authority at that stage to make inquiries about any possible local connection with the district of another authority since that would not be relevant to its decision as to the duty, if any, owed to the applicant. However, where there is a suggestion of such local connection in the information before it, it would make sense for it to inquire into it so as to be ready, in the event of it determining that there is a duty, to make a referral if it wishes. Hence the provision in section 184(2) that it “may also make inquiries whether” the applicant has such a local connection elsewhere.

decision to refer case to another local housing authority – section 198(1)

If the authority, as a result of any inquiries it has made into local connection elsewhere, considers that there is a main housing duty to the applicant under section 193, but considers that the conditions are met for referral of the case to another authority, it “may notify that other authority of [that] opinion” (section 198(1)). The relevant conditions here are: (1) that neither the applicant nor any person who might reasonably be expected to reside with him has a local connection with the district of the authority to which the application is made; and (2), that the applicant or a person who might reasonably be expected to reside with him has a local connection with the district of that other authority (section 198(2)). The Act provides in section 199(1) that a person has a local connection with a district of an authority if he has a connection with it because:

“(a)

… he is, or in the past was, normally resident there, and that

residence is or was of his own choice,

(b)

… he is employed there,

(c)

… of family associations, or

(d)

… of special circumstances.”

Further guidance as to the factors to be taken into account by notifying and notified authorities on the issue of local connection is, as I have said, given in the Local Authority Agreement. I emphasise that this stage as a whole is discretionary, but that, if undertaken, it has two sub-stages, the first, one of consideration after proper inquiries whether the referral conditions as to local connection elsewhere are met, and the second, a discretionary decision whether to seek a referral by notification to the other authority.

notification to the applicant of the decision to refer – sections 198(1) and 184(4)

Where an authority, as a result of its inquiries, makes a decision under section 184(1) into the application as to eligibility of the applicant for assistance and as to the duty owed to him, it is required by section 184(3) to notify the applicant of that decision “and, so far as any issue is decided against his interests,” inform him of the reason for it. That obligation is directed at decisions adverse to what he has asked for in his application. The most common would be a decision adverse to his entitlement to housing assistance for one reason or another or as to the nature of the accommodation offered. It could also be a decision to refer the application to another authority. The draftsman could not have contemplated that an applicant would in normal circumstances regard it as adverse to his interests if the authority to which he had applied for housing support decided to offer it to him and not to refer his application elsewhere.

If, however, the authority’s decision is that, though an applicant is eligible for assistance and is owed the main housing duty it intends to notify another authority of its opinion that conditions are met for referral of the case to it, the first authority is required by section 184(4) to notify the applicant of that decision and the reason for it. Separate provision is thus made for notification to an applicant of a decision “against his interests” under section 184(3) from that for a decision to refer under section 184(4) because the latter, though it would normally be contrary to an applicant’s wishes, should not, if the authority has exercised its discretionary power properly, be “against his interests”. For the avoidance of doubt, I should make plain that section 184(4) does not oblige an authority to notify an applicant of a decision not to refer. This is how it is drawn:

“If the authority have notified or intend to notify another local housing authority under section 198 (referral of cases), they shall at the same time notify the applicant of that decision and inform him of the reasons for it.”

Consistently with that scheme as to notice and flowing from it, section 184(5) also requires an authority to inform an applicant to whom it issues a notice under section 184(3) or (4) of his right to request a review of the decision. Again, there is no corresponding statutory duty to inform him that he has a right to request a review of a decision not to refer under section 198.

a decision that the conditions for referral are met – section 198(5)

The mere notification by an authority to another authority under section 198(1) of its opinion that the conditions for referral are met is not enough to transfer its main housing duty to that other authority. It is only if the two authorities are agreed about that or, failing agreement, an arbitrator appointed under arrangements directed by the Secretary of State so decides, that the transfer can take effect (section 198(5) and (6) and the Homelessness (Decisions on Referrals) Order 1998, SI No. 1578). But before it can do so, the notifying authority must notify the applicant of the decision and the reasons for it, and inform him of his right to request a review of the decision (section 200(2)). Again, the Act does not in terms oblige the notifying authority to notify the applicant of a decision not to refer, though, as it then must accede to the applicant’s request for housing assistance and shoulder the main housing duty towards him under section 193 (section 200(3)), there is clearly no need for such a provision.

The importance of the statutory obligations in sections 184(4) and 200(2) respectively to notify an applicant of a referral or intention of referral to another authority and of a decision that the conditions for referral are met is that they are a means of notifying the applicant of his right to a review under section 202(1) and (4). There are also other decisions for which that section provides such a right, all of them - common sense dictates - decisions that amount to a refusal of his application for housing assistance or which fall short of what he has asked for in his application. Section 202(1) provides:

“(a)

any decision of a local housing authority as to his eligibility for assistance,

(b)

any decision of a local housing authority as to what duty (if any) is owed to him under sections 190 to 193 and 195 to 197 (duties to persons found to be homeless or threatened with homelessness),

(c)

any decision of a local housing authority to notify another authority under section 198(1) (referral of cases),

(d)

any decision under section 198(5) whether the conditions are met for the referral of his case,

(e)

any decision under section 200(3) or (4) (decision as to duty owed applicant whose case is considered for referral or referred), or

(f)

any decision of a local housing authority as to the suitability of accommodation offered to him in discharge of their duty under any of the provisions mentioned in paragraph (b) or (e).

By section 204 of the Act, a review of any decision within section 202(1) carries with it in turn a right in the applicant to appeal to the County Court on a point of law. Such an appeal is not limited to matters of legal interpretation, but also includes issues akin to those that give rise to judicial review, such as challenges to an authority’s decision on the ground of procedural error, vires, irrationality or inadequacy of reasons; see Nipa Begum v. TowerHamlets London Borough Council [2000] 1 WLR 306, CA. But any purported review of a decision not coming within any of the section 202(1) categories is not appealable to the County Court under section 204, and would only be challengeable, if at all, by way of judicial review in the High Court. The first question raised in this appeal is, therefore, whether the Council’s decision not to refer Mr. Sareen’s case to the London Borough of Ealing was reviewable within the statutory procedure provided by the Act and, if so, whether it was a decision challengeable by appeal to the County Court.

Miss Clare Roberts has submitted that the only section 202(1) categories of decision of possible relevance to this appeal are those in paragraphs (c), (d) and (e). Mr. Sylvester Carrott, counsel for Mr. Sareen also sought to rely on paragraph (b). Miss Roberts pointed out that none of them expressly gives an applicant a right to request a review of a decision not to refer a case. She submitted that the nearest the draftsman got to it is in (d) – a decision under section 198(5) “whether the conditions are met for referral of his case”, which was the category of decision upon which Mr. Sareen particularly relied upon before Judge Cotran. She submitted that, if the draftsman had intended to provide a right of review of a non-referral, he would have done so by expressly requiring notice of and reasons for it in section 184(4) and 200(2) and by express reference to it in section 202(1)(d).

Mr Carrott framed his submissions on the individual categories of decision in section 202(1) with three broad propositions. The first, in reliance on this Court’s reasoning in Nipa Begum v. London Borough of TowerHamlets [2000]1 WLR 2000, at 314A-B, was that the policy of the introduction by section 204 of a right of appeal on a point of law to the County Court in homelessness cases was:

“to transfer from the High Court to the county court the main strain of the High Court’s otherwise onerous task of judicial review of those decisions for which section 202 provides”. [my emphasis]

He emphasised, as the Court did in that case, the undesirability of two concurrent, either separate or overlapping, forms of challenge to a local housing authority’s decision on homelessness. To avoid such a result, he submitted that the courts should, wherever possible, give a wide interpretation of section 202. However, as the Court plainly indicated in the above passage, the extent to which the new provision directs such work to the County Court depends on whether the decision in question is one for which section 202 provides. And, the draftsman, by his specific identification of a number of categories, clearly did not intend there to be an omnibus provision of a right of review of all local housing authority decisions bearing on the issue of homelessness. First, he has limited it to decisions in respect of which the authority has a duty to, and does, review. Second, he has specifically picked out and differentiated between categories of reviewable decisions according to their subject matter. Third, he has singled out positive decisions for referral in paragraphs (c) and (d) from those in the other paragraphs where the formula employed is “any decision … as to” whatever the subject matter of the decision is.

Mr. Carrott’s second broad proposition to overcome the limiting effect of the categorisation in section 202(1) of reviewable decisions was to urge a wide interpretation of each of the categories in reliance on the decision of this Court in Warsame v London Borough of Hounslow [1999] 32 HLR 335. In that case the question was whether the words in paragraph (b), “any decisions …. as to what duty, (if any) is owed”, were wide enough to include a decision that a duty, once owed, is no longer owed. The Court held that the words “any decision” in that paragraph included one as to factual situations, which, if they occurred, or do exist, would have the effect of causing the duty to cease to exist. In so holding, Chadwick LJ, with whom Rattee J agreed, focused on the width of the words in paragraph (b) which, as I have indicated are of considerable generality, encompassing decisions either way over a whole range of duties in Part VII to persons found to be homeless or threatened with homelessness. However - and relevantly to this appeal – paragraph (b) is expressly limited to an authority’s decisions as to duties owed under sections 190 to 193 and 195 to 197, and does not extend to its decisions in the exercise of it power of referral under section 198. The answer for the Court, as Chadwick LJ said, at 344, was plain enough on the language of the paragraph. The Court did not need to have recourse to a generous interpretation of it to reach the decision that it did. But, in any event, any permissibly wide interpretation could not have enabled the Court to overcome the plain limitations of meaning as between the different paragraphs in section 202(1), limitations that the draftsman in adopting the categorising technique must clearly have intended.

Mr. Carrott’s third broad proposition was that the general effect of section 202 is to confer on an applicant the right to request a review where an authority makes a decision adverse to him affecting the exercise of a substantive duty to him under Part VII. He drew attention in this connection to the duty imposed on an authority under section 184(3) to inform an applicant of the reasons for any decision adverse to his interests. However, as I have said, the draftsman of the Act must have contemplated – and both the general scheme and particular wording of sections 184(2) and (4), 200(2) and 202(1) confirm – that an applicant will apply to the authority in whose area he wishes to be housed. If that were not so, the discretionary provision in section 184(2) that an authority “may also make inquiries whether he has a local connection with the district” of another authority would be mandatory, not discretionary. Equally, as I have also said, the draftsman must have contemplated - and the scheme and particular wording of sections 184(4), 200(2), 202(1) and 204 to which it is tied again confirm – that it was not intended to give an applicant a right of review or of an appeal against a decision on that review if it gives him what he asked for, namely housing by the authority to which he applied for it. If an applicant wants to be housed in another local authority housing area, he should apply there.

With those considerations on the first issue in mind, I turn briefly to each of the four categories of decision in section 202(1) to which Miss Roberts and Mr. Carrott particularly referred the Court.

a decision as to what, if any, duty is owed under sections 190 to 193 and 195 to 197 to homeless persons or those threatened with homelessness

Mr. Carrott submitted, in reliance on Warsame, that the words of section 202(1)(b) are sufficiently wide to include the right to request a review in the circumstance of this case. He argued that the issue whether an authority may be exempted from a duty to secure accommodation under section 193(2) by a referral to another authority under the local connection provisions is a question of “what duty is owed”. There are two fallacies in that argument. The first is that the decision is as to “what duty is owed” under section 193(1), the issue in Warsame, not as to who owes it as between a notifying or notified authority under sections 198 and section 202(1)(d). The second fallacy is that, if the draftsman had intended the paragraph (b) to have the wide effect for which Mr. Carrott contended, he would not have found it necessary to provide in paragraphs (c) and (d) (Footnote: ¹)respectively for decisions to refer and for decisions whether the conditions were met for referral; such provisions would have been otiose. And, if he had intended to provide for decisions not to refer, the obvious place for such provision would have been in paragraphs (c) and (d).

A decision to notify another authority under section 198(1)

Section 202(1)(c) gives an applicant the right to request a review of a decision to refer, that is, of a decision to notify another authority of its view under section 198(1) that the conditions for referral are met. It does not on its terms give such a right where there is no decision to refer, no decision to so notify another authority. In this respect, it is to be contrasted, for example, with the formulae in paragraphs (a), (b), (e) and (f) in that it does not refer, for example, to any decision “as to” notification, or, for example, any decision “whether” to notify. In providing only for a decision “to notify another authority”, paragraph (c) corresponds with the duty under section 184(4) to notify an applicant of such notification or intended notification and that under section 185 (5) to inform an applicant of his right to request a review of the decision. As I have said, the Act does not provide for any of those duties where there is no decision to refer.

As is plain from the short summary that I have given of the facts, the Council never considered that the conditions for referral were met in Mr and Mrs Sareen’s case and, therefore, did not notify or intend to notify another authority under section 198(1) and so did not engage section 202(1)(c) . I agree with Miss Roberts that subsections 184(3) and (4) read on their own and in the context of the overall scheme for referral in Part VII plainly indicate that the Act does not treat a decision not to refer as one adverse to the interests of the applicant so as, in itself to require a notice.

any decision under section 198(5) whether the conditions are met for referral

Section 202(1)(d) gives an applicant a right to request a review of any decision by way of agreement between the notifying and notified authorities under section 198(5), an agreement that can only follow from a notification under section 198(1) to refer. Here, in the absence of such a notification, there was no factual basis for decision by agreement to be reviewable under this paragraph.

any decision under section 200(3) or (4) as to duty owed to applicant whose case is considered for referral or referred

Section 202(1)(e) gives an applicant, after referral, a right to request a review of a decision as to the housing provision made for him by a notifying or notified authority under section 200(3) or (4), according to the decision reached under section 198(5) as to whether the conditions for referral are met.

Again, there was no decision to refer under section 198(1), so there could be no basis for, and there was no, decision under section 198(5) as to whether conditions of referral were met. Accordingly, there was no reviewable decision under paragraph (e).

Accordingly, I do not consider that Part VII of the Act in section 202 or otherwise has provided a statutory right of review of an authority’s decision not to refer an application under section 198. If I am right about that, it must follow that there is no statutory right of appeal to the County Court under section 204 of the Act, a right of appeal expressly predicated on an entitlement to a review under section 202. It reads, so far as material:

“(1)

If an applicant who has requested a review under section 202 –

(a)

is dissatisfied with the decision on the review, or

…

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.

…

(3)

On appeal the court may make such order confirming, quashing or varying the decision as it thinks fit.”

. ….

Accordingly, I would allow the Council’s appeal on the first issue and quash the Judge’s holding that Mr Sareen was entitled to a review under section 202 of the Council’s decision not to refer his application to the London Borough of Ealing and, therefore, to appeal to the County Court under section 204. The Judge had no jurisdiction in the matter.

It follows, as Mr. Carrott has acknowledged, that if the Judge had no jurisdiction with regard to the Council’s first decision not to refer Mr. and Mrs. Sareen’s application to the London Borough of Ealing, he also had no jurisdiction to consider by way of appeal under section 204 or otherwise whether the Council had a duty to investigate the issue of local connection as part of its initial inquiries leading to that decision. In any event, as Mr. Carrott also acknowledged, the Council had no duty to investigate the issue of local connection, only a discretion under section 184(2) whether to do so. Accordingly, the Judge was wrong to quash the Council’s decision not to refer on that ground.

Mr Carrott’s main submission was that, in the particular circumstances of this case, the early indication in Mr. and Mrs. Sareen’s application that they would like to live in Southall imposed a duty on the Council properly to investigate that possible local connection with a view, in its discretion, to referring their application to the London Borough of Ealing. Given the discretionary nature of such an investigation under section 184(2) as well as of a decision to refer under section 198(1), he was compelled to widen his complaint to overcome what he described as a lacuna in the Act. He said that it failed to provide for such a duty where applicants have indicated at an early stage of their application to one authority that they wish to live in the area of another authority. However, for the reasons I have given, I do not regard that as a lacuna, but as a deliberate part of the draftsman’s scheme that, although applicants under Part VII of the Act can apply to any authority regardless of local connection, they would and should normally apply to an authority in whose area they wish to be housed. And they should be housed there subject only to that authority’s discretionary power to refer them elsewhere if the referral conditions are met.

However, lacuna or no, Mr. Carrott’s widening of his complaint amounted to one that might possibly be advanced in the High Court on an application for judicial review, but not by way of appeal to the County Court under section 204. It was that the Council, having undertaken a reconsideration of its initial decision, should have made, but did not, proper or sufficient inquiries, and that such failure made its second, if not its first decision procedurally unfair. The Judge, as I have said, quashed the second decision on that basis. For the reasons I have given, he had no jurisdiction to do that. And, in the light of the Council’s letter to Mr. Sareen of 4^th September 2001 detailing its inquiries and the reasons for its second decision, I doubt whether the High Court, if it were to consider the matter by way of judicial review, would consider that there had been any procedural unfairness so as to justify any relief in the exercise of that jurisdiction.

Accordingly, I would allow the Council’s appeal on all three issues raised in the appeal and would quash the orders made by the Judge.

I agree that this appeal should be allowed. I would think it unnecessary to add any observations of my own to the reasons given by Lord Justice Auld (with which I am in entire agreement) if it were not for the reliance which counsel for Mr Sareen has sought to place on my judgment in this Court in Warsame v London Borough of Hounslow (1999) 32 HLR 335.

In the Warsame case, the applicants had satisfied the local housing authority that they were homeless, eligible for assistance and had a priority need. It was not suggested that they had become homeless intentionally. Prima facie, therefore, section 193 of the Housing Act 1996 was engaged; and the local housing authority were required to secure that accommodation was available for their occupation (“the main housing duty”) – section 193(2). But section 193(7) of the Act provided that a local housing authority ceased to be subject to the main housing duty if (a) an applicant, having been informed of the possible consequence of refusal, refused an offer of accommodation under Part VI of the Act and (b) the local housing authority were satisfied that the accommodation was suitable for him and that it was reasonable for him to accept it. The local authority had made an offer to the applicants of accommodation under Part VI of the Act 1996; which the applicants had refused. The decision of which the applicants sought review under section 202 of the Act was the authority’s decision that, by reason of the provisions of section 193(7), it had ceased to be subject to the main housing duty. That decision turned on the authority’s decision that it was reasonable for the applicants to accept the accommodation which had been offered. The question for this Court was whether the judge in the county court had been right to take the view, on an appeal under section 204 of the Act, that that was not a decision in respect of which there was a right to review under section 202(1).

In Warsame, this Court held that a decision under section 193(7) of the Act, that the local authority had ceased to be subject to the main housing duty because it was reasonable for the applicants to accept the accommodation which had been offered under Part VI, fell within paragraph (b) of section 202(1). It held that that decision was as to “what (if any) duty [was] owed” to the applicants under section 193. But that is of no assistance to Mr Sareen in the present case. The question in the present case is not “what duty (if any) is owed” to Mr Sareen under section 193 – or under any of the other sections to which paragraph (b) of section 202(1) refers. It is accepted by the appellant authority that he is owed the main housing duty under section 193; and Mr Sareen has not sought to contend he is not owed that duty. That he is owed the main housing duty follows from the unchallenged facts that (i) the requirements of section 193(1) of the Act were met, (ii) the authority had not referred the application to another local housing authority under section 198 – see section 193(2) of the Act, and (iii) the authority had not ceased to be under the main housing duty by reason of sub-sections (5), (6) or (7) of section 193.

The underlying question in the present case is not “what duty is owed” to Mr Sareen; the underlying question is whether the appellant authority ought to have exercised the discretionary power, conferred by section 198(1) of the Act, to notify another authority, the London Borough of Ealing, of their opinion that the conditions for referral set out in section 198(2) were met. That, of course, begs two related, but prior, questions; (i) whether the appellant authority ought to have made inquiries to ascertain the facts upon which to make a determination whether those conditions were met, under the power conferred by section 184(2), and (ii) whether, in the light of those inquiries, they ought to have concluded that the conditions for referral were, in fact, met. But, assuming (in favour of the case advanced on behalf of Mr Sareen) that the appellant authority ought to have reached the conclusion that, in their opinion, those conditions were met – so that it fell to the authority to decide, under section 198(1) of the Act, whether to notify or not to notify another authority of that opinion – a decision not to notify cannot be said to be a decision “as to what duty (if any) is owed to him” under any of the sections mentioned in paragraph (b) of section 202(1). It is a decision not to exercise a power; in circumstances in which the non-exercise of the power leaves the duty owed to the applicant unaffected. It is important to keep in mind that the referral process under section 200 of the Act – which is initiated by a decision to exercise the power to notify conferred by section 198(1) of the Act - can only be set in train by a local authority which accepts that, but for referral, it would itself be subject to the main housing duty.

It is also plain that the Act imposes no obligation on the authority to notify the applicant of a decision not to exercise the power conferred by section 198(1). Section 184(4) of the Act, in terms, requires the authority to notify the applicant only if they “have notified or intend to notify another local authority under section 198 (referral of cases)”. And, for the reasons given by Lord Justice Auld, it is impossible to read into section 184(3) of the Act an obligation to notify the applicant of a decision that his case should not be referred to another authority. When providing, under section 184(3), that an applicant be informed of the reasons for a decision against his interests (so that he can decide whether or not to invoke his right to request a review – see section 184(5) of the Act) Parliament could not have had in mind that a decision to accede to the application which the applicant had made fell within that provision. A decision to accede to the application which the applicant has made cannot be said to be a decision on “any issue . . . decided against his interest”.

That is confirmed, as it seems to me, by the inter-relation between sub-sections (1), (3) and (5) of section 184 and paragraphs (a) and (b) of section 202(1) of the Act on the one hand; and between sub-sections (2), (4) and (5) of section 184 and paragraph (c) of section 202(1) on the other hand.

Section 184(1) of the Act requires the authority to make such inquiries as are necessary to satisfy themselves (a) whether the applicant is eligible for assistance under Part VII of the Act and (b) if so whether any duty (and if so what duty) is owed to him under the provisions of Part VII which follow. Section 184(3) requires that, on completing their inquiries, the authority shall notify the applicant of their decision, and (if adverse to his interests) of the reasons for that decision. Section 184(5) requires that a notice under section 184(3) shall inform the applicant of his right to request a review under section 202. Paragraph (a) of section 202(1) confers a right to request a review of any decision as to his eligibility for assistance; and paragraph (b) of that sub-section confers a right to request a review of any decision as to what duty (if any) is owed to him under the sections mentioned. Paragraphs (a) and (b) of section 202(1) correspond to paragraphs (a) and (b) of section 184(1). The link from section 184(1) to section 202(1)(a) and (b) is through section 184(3) and (5).

Section 184(2) of the Act empowers the local housing authority to make inquiries as to local connection with another authority; a matter relevant to a decision whether the conditions for referral are met – see section 198(2)(b). Section 184(4) requires that a decision to notify another authority under section 198 is notified to the applicant, with the reasons for that decision. Section 184(5) requires that a notice under section 184(4) shall inform the applicant of his right to request a review under section 202. Paragraph (c) of section 202(1) confers a right to request a review of any decision to notify another authority under section 198. It does not confer a right to request a review of a decision of one authority not to notify another authority under section 198(1). Paragraph (c) of section 202(1) corresponds to section 184(4), following inquiries under section 184(2); and, again, the link from sections 184(2) and (4) to section 202(1)(c) is through section 184(5).

In the light of the detailed provisions for notification to the applicant of decisions in relation to which he was to have the right to request a review and the obvious omission from those provisions of any reference (in terms) to a decision not to exercise the power under section 198(1) - when it would have been so easy to make it plain that such a decision was to be included within the scheme for notification and review - I find it impossible to hold that Parliament intended there to be an obligation to notify the applicant of a decision not exercise that power; or that Parliament intended there to be a right to request a review of that decision. In particular, I find it impossible to hold that Parliament intended that obligation to arise under section 184(3); or that right to be conferred by section 202(1)(b) of the Act.

Absent a right to request a review, under section 202 of the Act, of the appellant authority’s decision not to exercise the power under section 198(1), the county court had no jurisdiction under section 204 (or otherwise) to entertain an appeal in relation to that decision.

The Appellant’s appeal be allowed and the order of His Honour Judge Cotari made on 21 June 2002 including the order as to costs be set aside.

The Respondent do pay the Appellant’s costs here and below. Such costs to be subject to a detailed assessment if not agreed. And further that the same be subject to a determination of the Respondent’s liability to pay such costs pursuant to section 11 of the Access to Justice Act 1999.

There be detailed assessment of the costs incurred on the Appellant’s Community Legal Services public funding certificate.