Feld v London Borough of Barnet

The Housing Act 1996 helps the homeless. The scheme set up by Part VII can be summarised in this way. The homeless person can apply to a local housing authority for accommodation. If the local housing authority have reason to believe that the applicant may be homeless or threatened with homelessness, then they are under a duty to make such enquiries as are necessary to satisfy themselves whether he is eligible for assistance and if so whether any duty, and if so what duty, is owed to him: s.184. The authority must then notify the applicant of their decision and, so far as any issue is decided against his interests, inform him of the reasons for that decision. The applicant has a right to request a review of the decision.

If the authority are satisfied that the applicant is homeless, eligible for assistance and has a priority need and are not satisfied that he became homeless intentionally, then their duty under s.193 is to secure that accommodation is available for occupation by the applicant (though they may refer the application to another local housing authority). The authority cease to be subject to that duty if the applicant, having been informed of the possible consequences of refusal and of his right to request a review of the suitability of the accommodation, refuses a final offer of accommodation under Part VI.

The applicant has the right to request a review of various decisions including the decision as to his eligibility for assistance, as to what duty is owed to him and as to the suitability of accommodation offered to him in discharge of their duty: see s.202. On a request being made the authority concerned shall review their decision. Regulations prescribe the procedure to be followed and in particular require that the decision under review must be made by a person of appropriate seniority who was not involved in the original decision: see s.203.

There is no power to review a decision reached on an earlier review (s.202(2)) but s.204 gives the dissatisfied applicant a right of appeal to the County Court on any point of law arising from the decision.

Local housing authorities have to cope with a large number of these reviews. The City of Westminster have approximately 600 a year, the London Borough of Barnet about 30 a month and we read in the Law Reports that Tower Hamlets deal with about 500 annually. It not infrequently happens that after a review there is a fresh decision which is made the subject of a second review. Westminster estimate that between 10-15% of their case load are of such re-reviews. It also not infrequently happens that the same officer will conduct that re-review. Barnet, for example, have only one reviewing officer so it is bound to happen. Westminster employ three but still the problem arises.

It has arisen in the two appeals presently before us where the same officer has been involved in the first review and in the second review. The disgruntled applicants appealed to the County Court challenging the decisions on the grounds that each was vitiated by an appearance of bias. In the matter of Paul Feld v The London Borough of Barnet Her Honour Judge Mayer sitting in the Barnet County Court on 5^th December 2003 dismissed the challenge to the impartiality of the reviewing officer. On 12^th February 2004 His Honour Judge Crawford Lindsay Q.C. sitting in the Central London County Court in the matter of Mahboubeh Abbas Ali Pour v. City of Westminster allowed the appellant’s appeal against the housing authority’s decision because of apparent bias. So there are two conflicting decisions in the County Courts and in these joined appeals the question for this court is who got it right.

It is common ground that the review must be conducted fairly and impartially. If authority is needed for the proposition one might find it in paragraph 47 of Lord Hoffmann’s speech in Runa Begum v Tower Hamlets London Borough Council [2003] UKHL 5, [2003] 2 A.C. 430, 450:-

Two other points of interest emerge from that case. The first is taken from paragraph 46 of Lord Hoffmann’s speech:-

The second point made is this:-

The matter is probably sufficiently summarised by Lord Hoffmann’s endorsement in paragraph 59 of what Laws L.J. said in Beeson’s case at paragraphs 21-23 [R (Beeson’s personal representatives) v Dorset County Council [2002 EWCA Civ.1812] about the court being slow to conclude that Parliament has produced an administrative scheme which does not comply with constitutional principles.

When it comes to the proper test for apparent bias the law is now settled by Porter v Magill [2001] UKHL 67, [2002] 2 A.C. 257, eliding paragraphs 102 and 103:-

This case also requires us to have some regard to The Allocation of Housing and Homelessness (Review Procedures) Regulations 1999. Regulation 2 is concerned with “who is to make the decision on the review”. Regulation 2 provides only this:-

First, the circumstances of Paul Feld’s case. He was living with his mother in accommodation she owned which was condemned as unfit for human habitation. So it was that on 16^th March 2001 he presented himself to the London Borough of Barnet as homeless and in need of accommodation. On 24^th May 2001 the Homeless Persons Officer rejected his application on the ground that it was reasonable for him to continue to live where he was. He requested a review of that decision.

On 11^th September 2001 Ms Sonja Winborn, the authority’s Appeals Manager, conducted the review and decided to withdraw the original decision recommending that further investigations be carried out to determine the issue of whether or not the accommodation was reasonable for him to continue to occupy. Following that investigation the decision was made on 20^th November 2001 pursuant to s.184 that the housing authority considered Mr Feld to be threatened with homelessness, eligible for assistance and having priority need.

That priority need arose because he suffered from a chronic fatigue syndrome accompanied by a number of allergies, had a severe intolerance to noise levels and suffered quite severe sleep deprivation. He was seeing a consultant immunologist and a consultant physician in respiratory and sleep disorders.

Mr Feld submitted medical evidence to support his case that he needed more than a single bedroom in order that living in help could attend to him as his ill health required. It was a part of the council’s housing allocation scheme set up under Part VI of the Housing Act 1996 that larger accommodation may be authorised on the recommendation of the council’s medical advisor, or occupational therapy service. That special needs assessment concluded that despite some mention of live-in help, there was no evidence of any Social Service involvement and in the circumstances the recommendation was for a single bedroom flat, not a bed-sit.

Consequently on 22^nd January 2002 Mr Feld was offered a tenancy of a one-bedroomed flat at 223 Marsh Drive, London NW9. He sought a review of the decision and supported his request by a letter from the specialists at St. Bartholemew’s Hospital recommending a minimum of three rooms apart from kitchen, lavatory and washing facilities namely a bedroom for a carer, a bedroom for Mr Feld himself and a separate living room, one of those rooms being able to be kept as a “clean” room “from the perspective of allergen control”. An occupational therapy assessment recommended that, taking into consideration Mr Feld’s multiple medical problems, he should have a two bedroom ground floor flat in a quiet area. The local authority carried out its own medical assessment which included discussing the case with the senior occupational therapist who had compiled the earlier report. There then seems to have been some consensus that a single bedroom would be adequate.

Ms Winborn then wrote to Mr Feld on 21^st May 2002 to confirm that she was satisfied that the offer would have been suitable for him but that the council had agreed to make one further offer of accommodation to meet his need which was expressly said to be for one bedroom accommodation all on one level.

Meanwhile Mr Feld complained to the Local Government Ombudsman. Mr Nigel Hamilton, Barnet’s Head of Housing Needs and Resources, considered that his complaint bordered “on the vexatious”, a view submitted to the Ombudsman in the Borough’s response. The Ombudsman’s provisional conclusions dated 16^th August 2002 focused on the size of the accommodation that was regarded as suitable for Mr Feld’s needs and, as a possible way of dealing with matters, suggested provisionally that there be a re-assessment of his accommodation requirements in respect of the number of bedrooms and area, the first aspect of which ought to involve an independent medical assessment. The Ombudsman also recommended that some ex gratia payment be made to Mr Feld. The council accepted those recommendations and wrote to Mr Feld asking him to provide as much medical evidence as possible in support of his application and informing him that the case would be presented to the Director of Health Improvement. His response in a long letter dated 2^nd October 2004 included this:-

After consultation with the Ombudsman the local authority sought Mr Feld’s co-operation in agreeing a community care assessment order and asked him to submit to a further occupational therapy report. Mr Feld did not give that co-operation.

On 9^th December 2002 the Director for Health Improvement wrote as follows:-

On 13^th December Mr Nigel Hamilton, the Head of Housing Needs and Resources, wrote to Mr Feld informing him that taking into account the views of the Director of Health Improvement, the council believed that one bedroom accommodation would meet his needs. Mr Feld unsuccessfully sought the judicial review of that decision, Munby J. refusing permission on the basis that Mr Feld had not invoked the statutory procedure for review and in due time appeal to the County Court.

On 4^th June 2003 Mr Adam Pigden, the Voids and Lettings Manager, formally offered Mr Feld the tenancy of a one bedroom flat at 32 Burnbrae Close, North Finchley, emphasising that that was the final offer of accommodation for the purposes of s.193(7) of the Act and that refusal of the offer would end the council’s duty to provide him with accommodation as a homeless person. He was informed of his right to request a review which he exercised through his solicitors.

In their lengthy letter they referred to the medical evidence, to the earlier assessment of the occupational therapist that two bedrooms were necessary and generally to Mr Feld’s need for a full-time carer. In addition they made a number of adverse comments about the accommodation itself which was said to be likely to exacerbate not alleviate his allergic illness.

The reviewing officer was again Miss Winborn. She made a site visit, no doubt with the letter of complaint from Mr Feld’s solicitors in mind. On 14^th August she wrote informing Mr Feld that the review was unsuccessful because she was satisfied that the offer of accommodation was suitable. It was a fully reasoned letter three and a half pages in length. She dealt at length with individual aspects of the accommodation itself as to the issue “central to his case”. As to whether or not two bedrooms were required she wrote saying she was fully aware of his various medical conditions including chronic fatigue syndrome, asthma and an allergic disorder. She went on to say:-

She reiterated that she was aware of the medical opinions supporting his claim to need an extra bedroom but said it was not clear whether those opinions were based on hearsay or followed visits to his home to verify the circumstances that he claimed affected his health. The occupational therapist’s support had not been relied upon as had been explained to Mr Feld because “the O.T. concerned had not made a functional assessment of your client”. Extra bedrooms were only granted in very exceptional circumstances. In this case the senior occupational therapist felt unable to support any need for an extra bedroom. It was not accepted he needed constant twenty-four hour care. Allowance was placed on the failure to produce up-to-date medical evidence and on the report of the Director of Health Improvement. She concluded:-

Miss Abbas Ali Pour first applied as an asylum seeker in need of accommodation from the City of Westminster. In June 1994 the local housing authority accepted the duty to assist her under s.62 of the Housing Act 1985. Her application for asylum was eventually refused and her appeal against that decision dismissed in 1997 but she sought exceptional leave to remain in this country which was granted in December 1998. She therefore made a fresh application for accommodation and on 8^th September 1999 the council accepted under s.184 of the 1996 Act that she was eligible for assistance, homeless, in a priority group and that she did not become homeless intentionally. Accordingly their duty to secure accommodation for her was accepted. According to a chronology placed before the County Court it would seem that over the years various offers were made but were not acceptable, possibly for medical reasons. The position is far from clear on the papers before us but, fortunately, it does not matter.

What does matter is that eventually on 17^th March 2003 the applicant was offered a ground floor studio flat at 34 Senior Street, Warwick Estate, London W2 under Part VI of the Act. That was a final offer pursuant to s.193(7) of the Act.

When she inspected the property she rejected it apparently on the ground that she could not manage the five steps to the front of the property. She did, however, exercise her right to request a review stating that she rejected the property because it was a studio flat and asking the council to reconsider their decision saying:-

That review was conducted by the council’s independent reviewing officer Olabisi Obideyi, one of the council’s three independent review officers. She rejected the request and upheld the council’s decision to offer the studio accommodation as being suitable for her needs.

Miss Abbas Ali Pour appealed to the County Court and on 23^rd July 2003 the appeal was compromised by her withdrawing her appeal, the council agreeing to quash their decision and reconsider the matter and it was ordered by consent that:-

That fresh review was again conducted by Miss Obideyi. Her first decision was contained in the first two pages of her decision letter. This second decision set out the council’s position over four closely typed pages and was quite clearly a thorough comprehensive review of all material matters. She noted that no fresh representations had been made. She set out details of the demands on the council for accommodation. She stated she had sought the opinion of the council’s medical adviser as part of her review and that he had considered all available medical information. She noted that her G.P. had said she could not climb four flights of stairs and pointed out there were in fact only five steps to climb to gain access to this ground floor studio flat. There was no mention in any of the available medical reports that their patient required a one bedroom property due to her medical problems and thus the council’s medical adviser expressed the view that the accommodation was suitable on medical grounds. She explained in detail why a one bedroom flat could not be made available. She therefore rejected the request for a review and upheld the council’s decision to offer the studio flat at 34 Senior Street.

Miss Abbas Ali Pour launched a second appeal to the County Court which was heard by His Honour Judge Crawford Lindsay Q.C.

In the Feld case Her Hon. Judge Mayer dealt with the issue of impartiality by directing herself that:-

She held:-

She therefore dismissed Mr Feld’s appeal. He sought permission to appeal which was at first refused by Jonathan Parker L.J. but he renewed the application and at the oral hearing Tuckey L.J. observed that he would probably have reached the same conclusion but granted permission in view of the fact that his attention was drawn to the conflicting decision made by Judge Crawford Lindsay Q.C.

In Miss Abbas Ali Pour’s case, His Honour Judge Crawford Lindsay Q.C. arrived at these conclusions:-

He therefore allowed the appeal on 12^th February 2004 and quashed the review decision of 26^th September 2003. The City appealed against that order with permission granted by Tuckey L.J.

The primary issue and one which is common to both cases is whether or not all the circumstances which have a bearing on the question whether the reviewing officers were biased would lead a fair-minded and informed observer to conclude that there was a real possibility that they were not impartial. In refining his submissions to us, Mr Russell, counsel for the two homeless applicants, limits his challenge to circumstances where the same officer has to decide the same questions of fact and exercise the same judgment based on those facts as had arisen on the previous occasion. He does not suggest that the same officer can never ever conduct both reviews.

A subsidiary issue in the Feld case is whether Miss Winborn acted in breach of regulation 2 of the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 and whether she became tainted with bias through her discussing the case with the Head of Housing Needs and Resources, Mr Hamilton.

No suggestion has ever been advanced that either reviewing officer was actually biased. We are concerned only with apparent bias. Consequently, as it seems to me, one takes all the circumstances which the fair-minded and informed observer would bear in mind at the point when the decision was about to be made. One does not, therefore, look to the actual decision to see whether there is any hint of bias in the way that decision is actually reached. The testing time is at the point of decision making.

The observer, being informed, will know how the scheme works. He or she will know that Parliament has approved a system for review and will also know that by virtue of s.202(2):-

Thus the reviewing officer is not reviewing his or her own earlier decision but, in what would have to be unusual circumstances, is starting afresh to review a second decision as to the suitability of the accommodation offered to the homeless person in the letter of offer made to him or her. Inevitably something will have triggered the need for a second review and thus the circumstances will not be quite the same. I hope I am not being pedantic but I find it very difficult to see how Mr Russell’s primary case can ever be established where precisely the same facts and precisely the same judgment arises on each review. Take Miss Ali Pour’s case. That was remitted by the County Court in order for a further medical assessment to be made. It was made and it was a fact the reviewing officer had to bear in mind. In Mr Feld’s case the Ombudsman had recommended reconsideration expecting, no doubt, that there would be fresh medical evidence provided. The fact that Mr Feld refused to co-operate did not mean that the facts were as they had been at the time of the first review: here his lack of co-operation was a factor from which inferences could be drawn and were drawn as to the true state of his medical condition as it impinged upon the suitability of the accommodation to be offered to him.

Whilst, therefore, Mr Russell’s primary case may not strictly speaking be met, the fact that broadly similar issues arise is enough properly to raise the question in the mind of this fair-minded observer. Is there a real possibility, as opposed to a fanciful one, that the decision maker will subconsciously, as Judge Crawford Lindsay Q.C. believes, ask the question “What have I heard which would make me change my mind?” In judging whether that is a real as opposed to a fanciful risk the informed observer will bear in mind that this is an administrative decision which by the will of Parliament is placed in the hands of a senior officer of the local housing authority who has been trained to the task and brings expert knowledge and experience of the local housing authority’s work to bear on the decision making process. That officer knows the plight of the homeless, knows of the council’s duty and knows of the stock of housing from which that duty can be satisfied. The decision maker is not a judge but the decision maker is to be taken by the will of Parliament to be competent and conscientious. So, it seems to me, the fair-minded and informed observer will bear two matters in mind:-

First judges do sit on matters which they have dealt with on previous occasions. In the Court of Appeal we are not infrequently called upon to hear the oral application for permission to appeal notwithstanding the fact we may have refused to give permission on paper; see by way of example R (on the application of Holmes) v General Medical Council [2002] EWCA Civ.1104. There this court held that absent special circumstances a readiness to change one’s mind upon some issue, whether upon new information or simply on further reflection, and to change it from a previously declared position, was a capacity possessed by anyone prepared and able to engage with the issue on a reasonable and intelligent basis. Trained decision-makers should not be treated as inferior beings intellectually unable to approach the task with an open mind. The fair-minded and informed observer would have that in mind.

The second matter the observer would bear in mind is that deference must be given to the will of Parliament. This scheme has Parliament’s approval. The regulations made under the Act provide under regulation 2 one specific instance where the reviewing officer may not act. The implication is surely that in all other circumstances the same officer reviewing the matter has not been perceived to be a mischief which calls for regulation.

The fair-minded and informed observer will, therefore, bear in mind the practical realities of decision making in the local housing authority’s department. The figures given to us suggest that the problem arises often enough to be a real feature of life in the housing department, not a wholly exceptional occurrence. The London Borough of Barnet only have one reviewing officer and if, as the House of Lords has suggested in Begum, contracting out may not be permitted, then contracting out should not happen. Another officer should not need to be employed. In any event having two persons available whether in house or outwith the department is an added expense for authorities always stretched to the limits of their budget.

Finally at the core of this problem is the need for the confidence which must be inspired by the courts and administrative officers in a democratic society. This scheme is expressly made subject to an appeal to the County Court where any actual unfairness will be corrected.

As Lord Mustill observed in Reg v Home Secretary Ex p. Doody [1994] 2 A.C. 531, 560, what fairness requires is “essentially an intuitive judgment”. With respect to Judge Crawford Lindsay Q.C., I am driven to conclude that he erred in finding apparent bias and I would allow the appeal against his order.

In the case of Mr Feld, there are other circumstances to be borne in mind. The features of his case to which Mr Russell draws particular attention are the following:-

Mr Feld made a complaint to the Ombudsman which, though the views were preliminary views only, nonetheless led to the local housing authority having to submit to a re-review of their decision and to have to pay some ex gratia compensation to Mr Feld.

Mr Feld was accordingly denounced as bordering on the vexatious.

Mr Hamilton, the author of the derogatory comment, took a decision as Head of Housing Needs and Resources that one bedroom accommodation was sufficient.

Miss Winborn discussed the case with him on 13^th August 2003 and, according to the attendance note on the file “agreed offer is suitable”.

These are certainly matters which the fair-minded observer will take into consideration. Eyebrows may even be raised. Yet we must remember that this observer is neither complacent nor unduly sensitive or suspicious. Adopting a balanced approach such an observer will accept that investigation by and even adverse comment from the Ombudsman is one of the slings and arrows of local government misfortune with which broad shouldered officials have to cope. Miss Winborn was not herself involved nor the subject of criticism. She could be expected to bear criticism of the department not only with fortitude but with indifference for it did not affect her. Mr Feld may have become a thorn in the flesh of some but again there is no reason to think that Mr Hamilton’s views would so impinge upon her judgment as to dispose it to come to a conclusion adverse to Mr Feld. The fair-minded observer is not likely to think that difficult customers cannot have a fair hearing.

Much has been made of Miss Winborn’s seeking out Mr Hamilton’s views. As I see it, she was not only entitled but perhaps bound to investigate all the facts and was, therefore, entitled to sound him out and ascertain what his views were. The fact that she expressed agreement with them does not mean that her will was overborne by him or her judgment warped by him.

I have weighed those facts carefully in the balance and conclude that they would not have affected the mind of this equable observer. Consequently I agree with Judge Mayer and would dismiss the appeal against her order.

There is a separate point about regulation 2. It will be recalled that that requires that the officer reviewing an original decision should be someone “who was not involved in the original decision and who is senior to the officer who made the original decision”.

Mr Arden Q.C. was at pains to explain to us that in order that the housing authority fully discharge their duty to the homeless person they must, pursuant to s.193(2) “secure that accommodation is available for occupation by the applicant”. They may do that by allocating housing under Part VI of the Act according to the approved scheme. Mr Hamilton was in overall charge. He took his decision pursuant to his duty to allocate the Part VI housing stock in the proper way. The Part VII duty was discharged by the Voids and Letting Manager offering the tenancy of 32 Burnbrae Close from the Part VI housing stock, and that was the decision which was reviewed by Miss Winborn.

Mr Russell has to contend that Miss Winborn improperly reviewed the decision of an officer senior to her, namely Mr Hamilton. That argument is simply wrong. “The original decision” which gives rise to a right of review was the decision of the Voids and Letting Manager. His offer was expressed to be subject to the right to request a review. Mr Hamilton’s decision was not, nor could it be, subject to a s.202 review. The attempt to seek judicial review of Mr Hamilton’s decision failed, rightly in my judgment. The right of review was the right to review the decision conveyed in the letter of 4^th June from Adam Pigden in the Voids and Letting team. He was junior to Miss Winborn. She was entitled to review it. In my judgment this separate ground of appeal fails.

In the result I would dismiss the appeal from Judge Mayer’s decision but allow the appeal against Judge Crawford Lindsay’s decision and consequently vary his order by dismissing the appeal made by Miss Abbas Ali Pour to him.

I agree.

I also agree.