Cramp v Hastings Borough Council

These two matters were listed before the court for hearing on the same day. The first is an appeal by Hastings Borough Council (“Hastings”) against a judgment by Mr Recorder Digney QC in the Hastings County Court on 10th December 2004 whereby he allowed Mr Cramp’s appeal against a decision of a reviewing officer on his homelessness application, and remitted the matter to the council for reconsideration. The second was an application by Camden London Borough Council (“Camden”) for permission to appeal against a judgment by Judge Levy QC in the Central London County Court on 26th January 2005 whereby a similar order was made in favour of Mr Phillips. Carnwath LJ directed that the appeal should follow if permission were granted.

Because these two appeals were made to this court from a decision of a county court which was itself made on appeal, they both had to pass over the much higher threshold prescribed by CPR 52.13(2) for second appeals to this court (see Azimi v Newham LBC (2000) 33 HLR 51). Carnwath LJ was a member of the court which granted permission for a second appeal in Cramp, and he directed that the application in Phillips should be listed at the same time as Cramp so that the court could consider whether further guidance was needed. In the course of this judgment we will have to consider the application of the judgment of this court in Uphill v BRB (Residuary) Ltd [2005] EWCA Civ 60 to second appeals from the county courts in homelessness cases.

In both these cases the critical issue turned on the sufficiency of the inquiries made by the local housing authorities both at the initial decision stage and at the review stage, and before describing the facts of the two cases it is necessary to say something about the framework of law and procedure within which these decisions were taken.

Part VII of the Housing Act 1996 (“the 1996 Act”) is entitled “Homelessness”. Section 184(1) prescribes what is to happen where a person applies to a local housing authority for accommodation and they have reason to believe that he is or may be homeless. Section 184(1) and (3) provide:

“(1)

If the local housing authority have reason to believe that an applicant may be homeless or threatened with homelessness, they shall make such inquiries as are necessary to satisfy themselves –

(a)

whether he is eligible for assistance, and

(b)

if so, whether any duty, and if so what duty, is owed to him under the following provisions of this Part.

....

(3)

On completing their inquiries the authority shall notify the applicant of their decision and, so far as any issue is decided against his interests, inform him of the reasons for their decision.”

Section 193 imposes on them a duty to secure that accommodation is available for occupation by the applicant in those cases where they are satisfied that he is homeless, eligible for assistance, and has a priority need, and are not satisfied that he has become homeless intentionally. Both Mr Cramp and Mr Phillips passed all these tests except that neither of them could satisfy their local housing authority that they were in priority need. Section 189(1) identifies four categories of person who have a priority need for accommodation. Only one of these was available to either of these applicants:

“(1)(c) a person who is vulnerable as a result of ... mental illness or handicap or physical disability or other special reason.”

Section 189(2) gave the Secretary of State power by order to specify further descriptions of persons as having as priority need for education. The Homelessness (Priority Need for Accommodation) (England) Order 2002 (“the 2002 Order”) identified, among others, a person who is vulnerable as a result of having served a custodial sentence.

Sections 202 and 203 are concerned with internal reviews of decisions taken by local housing authorities in matters like these. The procedure on a review is governed by the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 (“the 1999 Regulations”). The review must be conducted by an officer who was not involved in the original decision and who is senior to the officer who made that decision (reg 2). Regulation 6 gives the applicant (or someone acting on his behalf) the opportunity to make representations to the review officer, which he is bound to consider (reg 8).

Section 203(4) of the Act imposes a duty on the reviewing officer to give reasons for his decision if he decides to confirm the original decision on any issue against the applicant’s interests. Section 204(1) confers a right on an applicant to appeal to the county court on any point of law arising from the decision or, as the case may be, the original decision.

As I have said, in both these cases the central issue relates to the sufficiency of the inquiries a local housing authority is bound to make. Section 182(1) obliges them to have regard to such guidance as may from time to time be given by the Secretary of State. Chapter 3 of the Homelessness Code of Guidance for Local Authorities contains the following advice:

“The obligation to make inquiries, and satisfy themselves whether a duty is owed, rests with the housing authority and it is not for applicants to ‘prove their case’. The nature and scope of inquiries will vary in individual cases, but they should be carried out as quickly as possible. Inquiries must be sufficiently thorough to establish the facts, and applicants should always be given the opportunity to explain their circumstances fully, particularly on matters that could lead to a decision against their interests, for example, intentional homelessness.”

....

“Where applicants may have care, health or other support needs, the housing authority will need to liaise with the social services and health authorities, as appropriate, as part of their inquiries. An assessment by the relevant specialist authority may be crucial to establish whether the applicant has a priority need for accommodation and to determine what non-housing support needs may need to be met.”

...

“In line with best value requirements, housing authorities should deal with inquiries as quickly as possible, whilst ensuring that they are thorough and, in any particular case, sufficient to enable the housing authority to satisfy themselves what duty, if any, is owed under Part 7. Housing authorities should aim to carry out an initial interview and preliminary assessment on the day the application is received or, where the application is received late in the day or after hours, the next working day. An early assessment will be vital to determine whether the housing authority has an immediate duty to secure accommodation under s188. Wherever possible housing authorities should aim to complete their inquiries, and notify the applicant, within 33 working days of accepting the duty to make inquiries under s184.”

We were shown a number of early decisions by High Court judges on the meaning of some of the phrases that still survive in Part VII of the 1996 Act. It is only necessary to quote two of them. In R v Gravesham BC ex p Winchester (1986) 18 HLR 207 Simon Brown J said of a predecessor statute at pp 214-5:

“The burden lies upon the local authority to make appropriate enquiries ... in a caring and sympathetic way ... These enquiries should be pursued rigorously and fairly albeit the authority are not under a duty to conduct detailed CID-type enquiries.”

And in R v Nottingham City Council ex p Costello (1989) 21 HLR 301 Schiemann J said at p 309:

“The duty to make necessary inquiries is not a duty to make all inquiries in fact necessary before the truth can be ascertained. A council which makes numerous inquiries can in my judgment only be attacked for failing to making one more if it failed to make an inquiry which no reasonable council could have failed to regard as necessary.”

Both these cases were cited to this court in R v Royal Borough of Kensington and Chelsea ex p Bayani (1990) 22 HLR 406 when it set out authoritative guidance as to the scope of a reviewing court’s power to interfere on the ground of insufficiency of inquiry. Neill LJ said at p 409:

“(1)

The duty to make inquiries is to make such inquiries as are necessary to satisfy the authority ... It follows therefore that as it is the authority which have to be satisfied the scope and scale of the inquiries is, primarily at least, a matter for them. But the introduction of the word ‘necessary’ indicates that there is a standard which those inquiries must observe. In other words, the inquiries must be those which are ‘necessary’ to enable the authority to make a decision.

(2)

If the court is to intervene by way of judicial review, it must be on the basis, as I see it, that the inquiries have not reached the required standard in the circumstances of the case ...

(3)

In deciding how a reasonable authority would have acted and what inquiries they would have made in the circumstances, the court must have regard to the speech of Lord Brightman in R v Hillingdon LBC ex parte Puhlhofer [1986] AC 484where he said at p.518:

‘... it is not, in my opinion, appropriate that the remedy of judicial review, which is a discretionary remedy, should be made use of to monitor the actions of local authorities under the Act save in the exceptional case ... Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely’ ...”.

It should be borne in mind that this judgment comes from the days when there was no internal review procedure provided for by statute, and an applicant’s only way of challenging an adverse decision on a homelessness application was by way of judicial review in the High Court. The introduction of the review procedure and the statutory right of appeal to the county court were presaged by the Law Commission’s report on “Administrative Law: Judicial Review and Statutory Appeals” (1994, Law Com No 226), in which it picked out homelessness cases as a matter for particular concern (see paras 2.24-2.27). The Commission welcomed the Government’s recent announcement that every local authority would be required to establish a formal mechanism by which a person could challenge an original decision by the authority’s officers, but it added that while an internal review was to be welcomed, it did not consider that such a review could be a proper alternative to an appeal to an independent body (such as a court or tribunal). The role of the county court, to whom a right of appeal on a point of law now lies, was reviewed in an ECHR context by the House of Lords in Runa Begum v Tower Hamlets LBC [2003] UKHL 5; [2003] 2 AC 430.

As I have shown, the review procedure gives the applicant and/or another person on his behalf the opportunity of making representations about the elements of the original decision that dissatisfy them, and of course they may suggest that further inquiries ought to have been made on particular aspects of the case. In Surdonja v Ealing LBC [2000] 2 All ER 597, 607 Henry LJ described “review” as the appropriate word for the act of submitting for examination and revision an inquisitorial administrative decision affecting the applicant’s most basic social requirement. Given the full-scale nature of the review, a court whose powers are limited to considering points of law should now be even more hesitant than the High Court was encouraged to be at the time of ex p Bayani if the appellant’s ground of appeal relates to a matter which the reviewing officer was never invited to consider, and which was not an obvious matter he should have considered. For the nature of the county court’s duty, see Runa Begum v Tower Hamlets LBC [2003] UKHL 5 at [7]; [2003] 2 AC 430.

I turn now to the facts of the two cases.

On 7th June 2004 Mr Cramp applied to Hastings as a homeless person. He had been living with his mother, but she had decided to move to Bexhill and put her property on the market for sale. He was immediately assessed as eligible for assistance under Part VII of the 1995 Act. The issue Hastings then had to consider was whether he was in priority need.

He saw Julianne Osborn, a homelessness officer, on 22nd June. He told her that he had a trapped nerve in his back and suffered from anxiety and depression. He was receiving a methadone prescription through the Substance Misuse Service. He had not seen a doctor about his back problem since 2002, and he was not receiving any treatment for anxiety or depression. An officer of the Substance Misuse Service told Ms Osborn that Mr Cramp was on the heroin addiction programme, but he did not have to visit the service every day. He was considered vulnerable due to peer pressure, but not vulnerable for the purposes of the Housing Act. On this evidence Ms Osborn was satisfied that he was not vulnerable due to his physical or mental health, and since no other priority need categories were applicable, she decided that he was not in priority need. She set out her reason for this decision concisely in a letter dated 23rd June 2004.

Mr Cramp then consulted solicitors who asked for the decision to be reviewed. They sent the council a brief report from Dr van Oostveen, who described himself as a “Locum – Staff Grade Psychiatry” in the Substance Misuse Service. He said that Mr Cramp had been receiving treatment for his substance misuse and dependence since August 2003. He described the drug treatment, and added that a previous doctor had prescribed trazadone since last year for symptoms of anxiety, depression and agitation. The letter ended:

“I have seen the patient twice. From the history and the psychiatric examination it appears that there may be symptoms which indicate an anxiety disorder or a mood disorder, anxiety, anger irritability. A definite diagnosis of a mental disorder can only be made once the detoxification from Valium has been completed. At this moment we can state that a mental disorder cannot be excluded definitely.

This letter concerns only information from a medical point of view and is intended to be used as one part of the assessment, of which other factors and sources of information are to be considered as well.”

The solicitors did not suggest that any further psychiatric evidence was needed for the purposes of the review.

The review was assigned to Ms Stanley, who was senior to Ms Osborn. She saw Mr Cramp for 75 minutes on 21st September, and on 22^nd September she sought a report from his GP, Dr Dhalla. She told him that Mr Cramp was arguing that he was in priority need because of his mental and physical health. She said Dr Oostveen was looking after his mental health, and she now wanted a report about his physical health. This report was forthcoming on 5th October. It is sufficient to say that it raised no matters that would qualify him as being in priority need.

On 11th October Ms Stanley gave her reasons for upholding the original decision. She addressed first the question of Mr Cramp’s mental health. After giving details of the treatment he had been receiving from the Substance Misuse Service and summarising Dr Van Oostveen’s findings, she said that at this stage Mr Cramp did not have a clinically diagnosed mental health issue. Her review report continued:

“Mr Cramp advises me that he has taken anti-depressants off and on since he was younger – possibly over a period of more than 15 years. He told me he has taken these in the past because he was bullied at work and generally ‘picked on’ which he finds frustrating and stressful. He does not feel he has a mental health problem. He told me that he has had 4 bereavements in the family that have left him very upset and that generally he agrees with the psychiatrist who told him he has a ‘lot on his plate’; Mr Cramp feels this is the underlying problem.

Mr Cramp told me he has injured himself during outbursts of anger, for example damaging doors. Other than this the only self harm he says he has ever done to himself is through his drug use.

He told me he has thought about suicide but doesn’t want to go through with this. It is feelings of frustration about the way other people have treated him, not taking him seriously, that have led him to have these thoughts.

In summary: Mr Cramp may have an anxiety or mood disorder but this is as yet undiagnosed. He has no history of self harm or suicide attempts. He is not expressing any serious suicidal ideation. His history indicates that any mental health problems he has have not prevented him working, studying, and finding and keeping accommodation. I am satisfied that he is no less able to fend for himself than an ordinary homeless person so that injury or detriment will result, because of his mental health.”

Ms Stanley then considered, and rejected, the possibility that Mr Cramp was in priority need because of his drug use or his physical health. She phrased her findings in the same way as she had concluded her findings about his mental health, and she made it clear that she had considered the effect of Hobhouse LJ’s judgment in R v Camden LBC v Pereira (1998) 31 HLR 317, which ended in these terms (at p 330):

“It must appear that [the applicant’s] inability to fend for himself whilst homeless will result in injury or detriment to him which would not be suffered by an ordinary homeless person who was able to cope. The assessment is a composite one but there must be this risk of injury or detriment. If there is not this risk, the person will not be vulnerable.”

Ms Stanley concluded, finally, that Mr Cramp was not in priority need for any other statutory or special reason.

Mr Cramp appealed to the county court. For the purposes of this further appeal it is only necessary to consider his challenge on mental health grounds. In his grounds of appeal he complained that his psychiatric evidence had not been investigated. It was said that full enquiries on the psychiatric front should have been made by the council when faced with Dr Van Oostveen’s report, but the council had in fact made no specific inquiries of him. Once Mr Cramp had put forward a prima facie case that he was in priority need as a result of mental illness, the council should have inquired into that claim proactively, a process which should have included obtaining independent psychiatric evidence of its own. Given Dr Van Oostveen’s belief that a mental disorder could not be excluded indefinitely, the council should either have asked the doctor about the meaning of this sentence or instructed their own medical evidence.

These arguments found favour with Mr Recorder Digney QC, who heard Mr Cramp’s appeal on 10th December 2004. The recorder advised himself of the guidance given in the leading cases of ex p Bayani and ex p Pereira, and said that Ms Stanley should have directed herself along the lines of the Pereira test (as indeed she did). He said that Dr Van Oostveen’s report suggested that Mr Cramp had certain psychiatric problems, and that the council had concluded that he did not have priority need. It seemed to him, however, that Dr Van Oostveen simply did not address the Pereira question, and the fact that it was Mr Cramp’s solicitors who had sent his brief report to Hastings was neither here nor there. He continued:

“The Council are under a duty to carry out inquiries which enable them to answer the question and when I look at the papers in this case I can ask the question myself: Could I conclude, on the basis of this, whether the Appellant has priority needs? I simply could not answer the question and the officer who answered the question is in no better position than I am. She has no psychiatric training of her own. As I say, this letter is not sufficient to base the decision on as it is not sufficient to base the decision, but it, as it were, gives notice to the fact the psychiatric problems may well mean that the Appellant has priority needs, further inquiries should have been made, and it is not simply a question of some people would have made further inquiries, others would not and that the decision is within a range of possible reactions. I am quite satisfied, applying the reasoning in Pereira, that the decision not to make further inquiries was Wednesbury unreasonable for the simple reason that it is not possible to answer the question, and the letter, although it does not answer the question, certainly would give rise in the mind of anyone dealing with the problem that there is a real risk that the psychiatric problems do put the [Appellant] into the category of those as set out in the Pereira case.”

He therefore quashed Ms Stanley’s decision and ordered the council to pay Mr Cramp’s costs.

Hastings sought permission to appeal to this court. The main thrust of its appeal was a complaint that the recorder had wrongly considered that medical evidence was determinative of the issue of priority need, and had wrongly concluded that the council’s reviewing officer was not entitled to take the decision on the review without obtaining further evidence, since she had no medical experience. Hastings said that this was not correct. It was the reviewing officer who was not only entitled but statutorily obliged to make these decisions, including decisions about medical evidence (see ss 184 and 202 of the 1996 Act, and the 1999 Regulations). The evidence of a medical adviser did not have the effect of binding a reviewing officer. It was simply one of a number of relevant pieces of evidence he/she should take into account and give such weight to as he/she reasonably thought fit.

Mummery LJ refused permission to appeal on paper. He said:

“This is a second appeal. It is not an exceptional case. There is no important point of principle or practice raised by the proposed appeal nor is there any other compelling reason under Part 52.13 (2) for granting permission. Uphill applies.”

This is a reference to the judgment of Dyson LJ dated 3rd February 2005 in the Uphill case (see para 2 above) in which he gave guidance on the meaning of CPR 52.13(2). That judgment addressed two broad questions (see Uphill at para 15). The first was whether and in what circumstances permission to appeal should be given under CPR 52.13(2)(a) where the ground of appeal was that there had been a failure to apply correctly a point of practice or principle which had already been established by a court of higher authority. The second related to the scope and meaning of the phrase “other compelling reasons” in CPR 52.13(2)(b).

On the first of these questions, Dyson LJ said that a distinction had to be maintained between (a) establishing and (b) applying an established principle or practice correctly. The rule covered a case where an appeal raised an important point of principle or practice that had not yet been determined. It was not satisfied, however, where the issue sought to be raised as the proposed appeal concerned the correct application of a principle or practice whose meaning had already been determined by a higher court.

As to the word “compelling”, which was a very strong word, emphasising the truly exceptional nature of the jurisdiction, it was clear from decided cases that there might be differences of view as to how stringent a test was imposed by the words “other compelling reason”. For this reason the court considered that it might be helpful if it attempted to elucidate the phrase.

Dyson LJ then said (at paras 23-24):

“23.

… What follows (which is not intended to be exhaustive) has been approved by the Master of the Rolls and the Vice-President of the Court of Appeal (Civil Division).

24(1) A good starting point will almost always be a consideration of the prospects of success. It is unlikely that the court will find that there is a compelling reason to give permission for a second appeal unless it forms the view that the prospects of success are very high. That will usually be a necessary requirement, although as we shall explain, it may not be sufficient to justify the grant of permission to appeal. This necessary condition will be satisfied where it is clear that the judge on the first appeal made a decision which is perverse or otherwise plainly wrong. It may be clear that the decision is wrong because it is inconsistent with authority of a higher court which demonstrates that the decision was plainly wrong. Subject to what we say at (3) below, anything less than very good prospects of success on an appeal will rarely suffice. In view of the exceptional nature of the jurisdiction conferred by CPR 52.13(2), it is important not to assimilate the criteria for giving permission for a first appeal with those which apply in relation to second appeals.

(2)

Although the necessary condition which we have mentioned at (1) is satisfied, the fact that the prospects of success are very high will not necessarily be sufficient to provide a compelling reason for giving permission to appeal. An examination of all the circumstances of the case may lead the court to conclude that, despite the existence of very good prospects of success, there is no compelling reason for giving permission to appeal. For example, if it is the appellant’s fault that the first appeal was dismissed, because he failed to refer to the authority of a higher court which demonstrates that the decision on the first appeal was wrong, the court may conclude that justice does not require this court to give the appellant the opportunity to have a second appeal. There is a reason for giving permission to appeal, but it is not compelling, because the appellant contributed to the court’s mistake. On the other hand, if the authority of a higher court which shows that the decision on the first appeal was wrong post-dated that decision, then there might well be a compelling reason for giving permission for a second appeal.

(3)

There may be circumstances where there is a compelling reason to grant permission to appeal even where the prospects of success are not very high. The court may be satisfied that there are good grounds for believing that the hearing was tainted by some procedural irregularity so as to render the first appeal unfair. Suppose, for example, that the judge did not allow the appellant to present his or her case. In such a situation, the court might conclude that there was a compelling reason to give permission for a second appeal, even though the appellant had no more than a real, as opposed to fanciful, prospect of success. It would be plainly unjust to deny an appellant a second appeal in such a case, since to do so might, in effect, deny him a right of appeal altogether.”

When Hastings filed their notice of appeal they did not adduce any particularly cogent reasons why permission should exceptionally be granted for a second appeal. This lacuna was remedied when they sought reconsideration of Mummery LJ’s decision. In addition to a statement under para 4.14A(2) of the Practice Direction to CPR Part 52, they filed a statement by their housing operational manager, Mr Michael Opreshko, who said that the case had a significance for the council beyond the facts of the immediate decision.

The recorder had found against Hastings on the grounds that they were obliged to make further inquiries into Mr Cramp’s medical circumstances notwithstanding that they already had a letter from the treating doctor to the effect that he could [not] diagnose whether Mr Cramp had a mental disorder at the time, because he was withdrawing from a drug. In other words, this was not a run of the mill case where Hastings had simply omitted to make an inquiry, which could easily be remedied. If further inquiries had to be made in a case like Mr Cramp’s case, it would not be a straightforward matter. This would have an impact on the Hastings’ already stretched resources.

Mr Opreshko said that Hastings were currently receiving an average of 17 Part VII applications per week, and an average of six review requests per month. There were three officers dealing with applications and one reviewing officer, and on a review enquiries already took an average of 51.68 days. The more enquiries had to be made, the longer the cases would take to deal with, and the higher the cost of each would be. Although not all applicants are accommodated pending review, the average gross cost to the authority of providing interim accommodation was about £9,455 per applicant housed. The experience of having a review decision overturned on an appeal was unsatisfactory for the appellant (because of the continuing uncertainty) and for the council (due to the additional cost of carrying out a second review following an appeal). Hastings was therefore most anxious to learn from the Court of Appeal whether the decision of the recorder was correct, because it would have an impact on the way in which cases had to be dealt with.

On 12th April 2005 this court granted permission to appeal pursuant to CPR 52.13(2). Chadwick LJ said that this was one of those cases in which there was a compelling reason for the Court of Appeal to hear the appeal. He said:

“The decision, although itself made on appeal, was made from an administrative decision. There is, in my view, a very high prospect that this court will be persuaded that the Recorder failed to give proper weight to the fact that Parliament has thought it right to entrust to the authority not only the decision as to what duty is owed to the applicant but also the decision what enquiries need to be made in order to reach that decision.”

Carnwath LJ, agreeing, said:

“The principles stated in Uphill are expressly said not to be exhaustive. In this case I am struck by two particular features. First, that the judge seems to have substituted his own view as to what was the limit of necessary enquiries for the authority to make, rather than considering whether the view taken by the authority was, as expressed in the review letter, a reasonable one. On that it seems to me there is a good prospect of success. Secondly, I am struck by the evidence of the housing officer, Mr Opreshko, that the extent of enquiries needed by the authority in a case such as this is a matter of great concern in its role as housing authority, particularly as future cases are likely to be heard by the same court. Together these points are compelling reasons sufficient to justify a second appeal.”

Mr Phillips’s case relates to his successful challenge in the Central London County Court to a decision by Lidia Gazzi, Camden’s Review Manager, who had by a letter dated 23rd June 2004 confirmed a decision made by a Camden Assessment Officer to the effect that Mr Phillips was not vulnerable. He therefore did not have a priority need over other homeless applicants for the purposes of Part VII of the 1996 Act.

Mr Phillips is a single man. He was born in May 1984. In September 1996 he suffered serious burns to his right leg and forearms when he fell off a ledge onto overhead railway cables. As a result of that accident he was off school for about six months and attended a psychiatrist three times a week until he was 15 years old. In February 2001 he first applied to Camden as a homeless person after his mother had excluded him from her home, but that application was withdrawn following a family reconciliation. In July 2001, however, after his mother had had to obtain injunctive relief against him, Mr Phillips again applied to Camden as a homeless person, and in August 2001 a medical assessment officer recommended that he had a priority need. Camden therefore accepted a Part VII duty towards him, but this duty was discharged in November 2001 when Mr Phillips left the temporary accommodation provided to him.

On 30^th May 2003 he was sentenced to ten months’ imprisonment for driving whilst disqualified. On 29^th August he was released on home detention curfew. He went to live with his partner who has a child by him, and when that relationship broke down he made a further application to Camden as a homeless person on 11^th November. Although his licence expired on 29^th October, he remained under the supervision of the probation service until 29^th November.

On 9th March 2004 Jillian Brown, Camden’s Assessment Officer, decided that he was unintentionally homeless and eligible for assistance, but found that he was not in priority need. She said that the council had taken into consideration the medical information submitted by his GP and also a report from a consultant in plastic and reconstructive surgery which had been commissioned by his solicitors.

In her decision letter Ms Brown referred to his serious accident in September 1996 and the report about his recovery since then. He had received extensive skin grafting and had reduced flexibility in his right knee. He was currently not in receipt of any treatments, although it was noted that he had some difficulty with stairs. His mental state had been assessed as normal, and his vision, hearing, speech, communication, IQ, social skills, literacy, numeracy and activities of daily living were all normal.

Her letter stated that the council had given careful consideration to the fact that he had recently left prison and that he had medical problems, but she had concluded that he was no less able to fend for himself when homeless than his peers, so that injury or detriment to him would not result, when a more vulnerable person would not be able to cope without harmful effect. In this respect she was applying the Pereira test (see para 21 above).

Mr Phillips requested a review. On 21st April 2004 his solicitors made written representations on his behalf. In their letter they set out their client’s history. They said that when his mother obtained an injunction against him at the age of 15 he could not stay with his father as his father had mental health issues. He believed he should have been taken into care by social services at that time, if for no other reason than his need to see a psychiatrist three times a week when he was younger. Instead he was placed in various bed and breakfast establishments, hostels and even a mother and baby unit.

Mr Phillips had told them that he was required to look after himself, but he did not believe he was capable of doing so at that age. After 18 months of temporary accommodation he had been told to leave the mother and baby unit because he had not signed the register properly. However he was told that he would still be offered a property of his own in due course. He believed his previous housing file was lost when the relevant officer in Camden’s Single Persons’ Housing team left, but in any event he had been told two and a half years ago that his previous application to be housed had been closed, when he had moved to live with his partner in her home.

His solicitors suggested that the council should make inquiries into his previous application as a homeless person, if they had not already done so, and in particular they should consider any medical evidence they possessed in relation to Mr Phillips’s ability to look after himself.

They submitted that he should be regarded as in priority need for two reasons:

Camden then sent Mr Phillips’s solicitors a copy of their housing file. The solicitors made further representations on 2nd June 2004. They suggested that Camden had not considered the medical reports from the consultant plastic surgeon (dated 25th March 2002) and their client’s GP (dated 23rd January 2004), or the social factors in their client’s case with sufficient care. In particular, they believed that their client’s difficulty in climbing stairs (as reported by the GP) was more severe than Camden had concluded, and they also highlighted a report (dated 10th November 2003) from a representative of the Under 25s Advice Centre, who said that Mr Phillips had had a history of criminality since he was 12, that he had been assessed by the local education authority as having emotional and behavioural difficulties, and that without settled accommodation there was a strong chance that he would reoffend. They did not question the ability of Mr Phillips’s GP (Dr Wander) to provide a cogent medical report, or suggest that Camden should make any inquiries of the probation officer who had been assigned to supervise him after his release from custody.

Ms Gazzi’s six-page review letter is very detailed. She reminded herself of the Pereira test, and considered that the following three categories of priority need might be relevant in Mr Phillips’s case, namely a person who

(c)

is vulnerable as a result of ... handicap, physical disability or other special reason;

(f)

is under the age of 21 who was in care between the ages of 16 and 18, but who has left care and is not a “relevant child”;

(i)

is vulnerable as a result of having a custodial sentence.

Ms Gazzi set out the medical history in some detail. Dr Wander had provided a report in which the only adverse matters related to his mobility problems (because of the burns and skin grafting), which meant that he had some pain and difficulty in managing stairs. She therefore rejected Category (c), commenting as she did so that the solicitors had not presented any fresh medical evidence to support their claim that Mr Phillips’s medical condition had deteriorated and that he would need surgery.

She rejected Category (f). Mr Phillips had never been in care, and as he was in fact nearly 17 years old when his mother had obtained an injunction against him, it was unlikely that the Social Services Department would have been able to assist him. The fact that he had been accepted as being in priority need at the age of 16 cast no light on his position at the age of 20, and in any event Camden’s criteria for dealing with cases had continued to evolve through time, due to legislative and procedural changes.

She also rejected Category (i), because no information had been presented to indicate that Mr Phillips’s time in prison had had a detrimental impact on his mental health (which Dr Wander had assessed as normal) or his ability to fend for himself if homeless.

For these and the other detailed reasons she gave Ms Gazzi was satisfied that the caseworker had correctly applied the Pereira test and had included all relevant information in this case.

In his judgment under appeal the judge set out the history of the case in very great detail. He referred to the history of Mr Phillips’s application to Camden when he was 16. At that time a report was written by a GP who had been Mr Phillips’s doctor since birth. He said that both he and his mother had psychological problems, and there was a note on the file dated 4th September 2001 to the effect that Mr Phillips had previously been at a special school and had mental problems. The report from the Camden Under 25s Advice Centre was set out in full. The writer supported Mr Phillips’s application for Part VII housing. He had told her that there was a high incidence of mental illness in his family, of which she gave details. She added that Mr Phillips was in poor health, both mentally and physically. The report from Dr Wander had followed two months later.

The judge found for Mr Phillips on one of the seven additional grounds of appeal which were added by way of amendment on the morning of the hearing:

“The council failed to make adequate enquiries of (a) the appellant’s probation officer; (b) the appellant’s GP.”

He said:

“It seems to me that admirable though the decision letter is, it would have been helpful if the reviewing officer had made enquiries of the appellant’s probation officer. The Appellant had been in contact with his probation service, almost if not up to the date of the decision. Given the uncertain and unhappy background of the Appellant there might well have been additional information regarding the Appellant that the probation officer could have given. As to the Appellant’s GP, it seems to me that the report of the Appellant’s recently acquired GP was of limited use, in that it is not clear whether he had all the medical records, or even most of the medical records of the Appellant. Further enquiries not having been made on these points, I am not satisfied that the Reviewing Officer did consider all social and medical factors relevant to the Appellant’s case.”

In post-judgment discussion the judge pinpointed the failure to take into account the mental history and the failure to make further inquiries (including medical inquiries) before the decision was taken. He said that the report or reports which might have been forthcoming from the probation service might have turned the scales in a different case, and this possibility should have been taken into account. In the light of the earlier medical reports the failure to make inquiries of the probation service was a serious failure, which made the decision one which ought to be reviewed.

It is not at all clear whether the judge appreciated the likely nature of the involvement of the probation service. Mr Phillips had received a 10-month custodial sentence for driving while disqualified. He was released from custody on licence under the home detention curfew scheme on 29th August 2003. Because he was under the age of 21, he had to be released into supervision, and the supervision period had to last for three months until 29th November 2003 (see Prison Service Order 6700, para 6.1.5.) even though his licence period expired on 29th October. He was not subject to a conventional probation order, and it seems entirely speculative whether the probation officer would have had anything significant to add to the information already before the Camden housing officers.

Mr Nabi, who appeared for Mr Phillips, submitted that the evidence in the housing file which related to his client’s earlier application in 2001 should have alerted Camden to the need to conduct further inquiries.

In my judgment the judges in each of these cases made the same mistake. Parliament has imposed the duty of making the necessary inquiries on a housing officer, and in the event of a review, on a senior housing officer as well. In each case solicitors acting for the applicant availed themselves of their right to make representations. In neither case did they suggest that the local housing authority should make the inquiries whose absence led to the reviewing officer’s decision being quashed as a matter of law. Mr Cramp’s solicitors did not suggest that Hastings should not accept Dr Van Oostveen’s report at its face value. Mr Phillips’s solicitors did not suggest that Dr Wander’s report was inherently unreliable or that the council should identify and consult a probation officer before making a decision in his case. And in each case the reviewing officer judged that she could make the decision without making any further inquiries along those lines.

In each case it was for the council to judge what inquiries were necessary, and it was susceptible to a successful challenge on a point of law if and only if a judge in the county court considered that no reasonable council could have failed to regard as necessary the further inquiries suggested by the appellants’ advisers. In the Cramp case it was the duty of the reviewing officer to decide whether it was necessary to make any further inquiries of Dr Van Oostveen or any other psychiatrist before making her decision. She had read all the available reports and interviewed Mr Cramp herself for 75 minutes, and she was quite capable of deciding whether Mr Cramp was vulnerable due to his mental condition without having to wait until such time as he had recovered sufficiently from his addiction to drugs for a confident diagnosis of an anxiety disorder or mood disorder to be made. The recorder was wrong to think that only a psychiatrist could answer “the Pereira question”, and in my judgment it simply was not open to him to hold that no reasonable council would have refrained, as Hastings did, from making further inquiries into Mr Cramp’s mental health.

Similarly in the Phillips case it was pure speculation on the judge’s part to think that an approach to a probation officer would have yielded more information than Camden already possessed. It was not open to him to quash Camden’s decision as a matter of law on the grounds “that it would have been helpful” if those inquiries had been made, or that “there might well have been additional information” which the probation officer could have given. Ms Gazzi had considered that it was not necessary to make these further inquiries, or to go behind the GP’s report, and Mr Phillips’s solicitors had never suggested that she should (see paras 43 and 45 above). In these circumstances it was not in my judgment open to the judge to hold that no reasonable council would have refrained from making these further inquiries, and the judge should not have interfered with Camden’s decision on the review.

Since permission to appeal was given to Hastings, this means that its appeal can be allowed without further ado. In the Phillips case we have to consider whether it is appropriate to grant permission for a second appeal notwithstanding the decision in Uphill. In this case, too, the appellant council has explained why it considered that a second appeal should be permitted.

In a witness statement filed in support of Camden’s application for permission to appeal, Ms Gazzi has told us that every month Camden received about 115 Part VII applications, and 26 reviews are also requested. They have 17 caseworkers and 2 reviewers assigned to these duties. The average time for a review in a normal case is 45 days. She attributes the large number of reviews to the large number of specialist housing solicitors in London (in contrast to Hastings) who frequently became involved at the review stage. The average total cost of providing interim accommodation to those applicants whom Camden houses pending a review is £16,523 per month.

Ms Gazzi said that to broaden the ambit of “necessary” inquiries to agencies such as the Probation Service in cases where there does not exist a good reason for thinking that this would materially assist Camden in their task would be bound to have a real impact on the time-scale and expense of reviews. And a requirement that Camden should “look behind” the reports it received from GPs and other medical advisers, to ensure that the maker of the report was sufficiently well-informed to express a valid opinion, would be likely to have an enormous impact on the duration and expense of the review procedures. Over the past six months about 47% of Camden’s reviews (ie about 70 cases) were priority need cases, and virtually all of them involved medical information of one form or another.

Mr Rutledge, who appeared for Camden, supplemented this evidence by observing that in practice local housing authorities would be unlikely to wish to appeal against every decision which went against them in the lower courts. Financial considerations, including the inability to recover costs from a publicly funded respondent, dictate that they would be likely to be selective in the appeals they bring. This submission contains an echo of the concerns expressed by Lord Hoffmann in the Runa Begum case (at para 44) about the desirability of protecting the funds available for a welfare scheme from being siphoned off into expensive legal disputes.

In my view, Dyson LJ’s judgment in Uphill was extremely helpful, particularly in cases in which the merits have been subjected to judicial scrutiny on two previous occasions. The classic instance is the familiar case where a first instance decision by a district judge or High Court master has already been reviewed on appeal by a circuit judge or by a High Court judge sitting in a lower appeal court. Another good example is a case in which a decision by a tribunal with a legally qualified chairman has already been subjected to statutory appellate review by a High Court judge.

But it would be regrettable if helpful guidance for the majority of cases were to ossify into rule, and Dyson LJ was wise enough to say that his advice in Uphill was not intended to be exhaustive. The Court of Appeal has already shown itself willing to temper the way it will exercise its discretion to grant permission for a first appeal from a specialist appellate tribunal, depending on the expertise of the tribunal (see note 52.3.10 to CPR 52.3 on pp 1462-3 of the 2005 edition of the White Book). It should show itself no less willing to be flexible in its interpretation of CPR 52.13 depending on the provenance of the proposed appeal.

The Court of Appeal is the first appeal court in judicial review cases, after all. It is an odd quirk of the system that CPR 52.13 provides tougher restrictions on a homelessness appeal from a judge in the county court (who by the nature of things will have less experience in handling appeals on points of law from an administrative decision) than on an appeal from a decision on judicial review by a High Court judge. In view of the amount of public money that is in issue in cases like this, as evidenced by the statements of Mr Opreshko and Ms Gazzi (see paras 32 and 61 above) it would in my judgment be quite wrong for this court to feel that the judgment in Uphill represented a fetter on its power to put things right if it has occasion to believe that things are going wrong in an important way in the practical operation of the statutory scheme in Part VII of the 1996 Act (up to and including the appeal on a point of law to the county court).

While it is true that in ex p Bayani this court stated what the practice should be when a decision of a housing officer was challenged on judicial review, a lot of water has flowed under the bridge since 1989. In particular internal review (affording the opportunity to make representations to a senior housing officer) has been introduced, and the supervisory jurisdiction of a High Court judge with public law expertise has been converted into the appellate jurisdiction of a circuit judge or a recorder in the county court who will not necessarily possess the same expertise in identifying and resolving points of law in a public law setting.

In the light of the decision in Uphill, the appellant councils steered away from invoking CPR 52.13(2)(a). They sought to argue that there was some other compelling reason for the Court of Appeal to hear a second appeal. In my judgment, however, the court’s dilemma can more readily be resolved by holding that the appeal in Phillips raised an important point of practice. Although a decision of a judge in the county court has no binding force in precedential terms, these two cases evidence a worrying tendency in judges at that level to overlook the fact that it will never be easy for a judge to say that an experienced senior housing officer on a homelessness review, who has considered all the reports readily available, and all the representations made by the applicant’s solicitors, has made an error of law when she considered that it was unnecessary to put in train further detailed inquiries, not suggested by the applicant’s solicitors, before she could properly make a decision on the review. The need to correct that tendency raises an important point of practice. The duty to decide what inquiries are necessary rests on her, and her decision will be a lawful decision unless no reasonable council could have reached the same decision on the available material.

I would therefore grant Camden permission to appeal in the Phillips case and allow the appeal.

It would be wrong to leave these appeals without saying a little about the practice to be followed in appeals to the county court pursuant to s 204 of the 1996 Act. Although the county court is performing a function akin to judicial review, the appeals are governed by CPR Part 52 and not by CPR Part 54 (which provides for the filing of evidence). In the absence of any guidance from CPR Part 52 and its Practice Direction, procedural judges have been doing their best to make sensible directions on s 204 appeals, turning a Nelsonian blind eye to the restrictions on evidence on an appeal.

CPR 52.11(2), with suitable adaptations, reads:

“Unless it orders otherwise, the [county court as the first] appeal court will not receive –

(a)

oral evidence; or

(b)

evidence which was not before the [senior housing officer on the review].”

In other words, judges in the county court need to be astute to ensure that evidential material over and above the contents of the housing file and the reviewing officer’s decision is limited to that which is necessary to illuminate the points of law that are to be relied on in the appeal, or the issue of what, if any, relief ought to be granted. An undisciplined approach to the admission of new evidence may lead to the danger that the reviewing officer is found guilty of an error of law for not taking into account evidence that was never before her, notwithstanding the applicant’s opportunity to make representations about the original decision.

This leads me on to two other points. The first is that paras 3.1 and 3.2 of the Practice Direction to CPR Part 52 apply to appeals to the county court under s 204 of the 1996 Act. Although an appeal court has a discretion to allow a notice of appeal to be amended, the grounds of appeal set the agenda for the appeal hearing and enable the respondent (and the court) to understand the agenda from the outset of the appeal. It is thoroughly bad practice to state the barest possible grounds in the original notice of appeal, as happened in the Phillips case (“The council erred in law in upholding their decision not to re-house the appellant under the Housing Act 1996”), and then to delay formulating and serving very substantial amended grounds of appeal for five months so that they surfaced for the first time less than a week before the appeal hearing.

The other point is that we were told that a bundle containing 450 pages of documents was prepared in connection with the Phillips appeal. Practitioners must bear in mind that para 5.6 of the Practice Direction to CPR Part 52 applies to these appeals. Once the agenda for the appeal has been identified by the grounds of appeal, apart from the decision letter the appeal bundle should be limited to the “documents which the appellant reasonably considers necessary to enable the appeal court to reach its decision on the hearing” of the appeal (para 5.6A (1)(c)). All documents that are extraneous to the issues to be considered on the appeal must be excluded (para 5.6A (2)). The appellant’s solicitor must then sign the certificate required by para 5.6A (3). In other words, it is quite wrong to photocopy the entire contents of a bulky housing file, regardless of whether it is necessary to do so in order that the court may reach its decision on the (perhaps very limited) issues raised in the appeal.

I agree.

I also agree.