Ryde v London Borough of Enfield

LORD JUSTICE PILL: Lord Justice Carnwath will give the first judgment.

LORD JUSTICE CARNWATH: This is a renewed application for permission to appeal against a decision of Her Honour Judge Pearce dated 28th January 2005, sitting in the Edmonton County Court. It relates to the decision of the respondent authority, the London Borough of Enfield, not to treat the applicant as homeless and in priority need for the purpose of the homeless persons legislation.

The application had been made in July 2004. It was supported by a letter from the GP. The authority made their decision on 18th August 2004 to the effect that the applicant was not in priority need. There was then an appeal under the Act to the authority. That was supported by a further letter from the GP, but it also referred to the fact that an appointment was awaited with a consultant, Dr Lucas. There was then a letter from Dr Lucas dated 23rd September which referred to the applicant's problems. That letter referred to the background of medical problems, including epileptic fits, but in particular the fact that the applicant suffered from depression and there was an underlying problem of alcoholism; his marriage had broken up and his ex-wife had found a new partner and had ejected him from the house. He had been homeless for four to five months. His only support was through a family friend. The letter went on to say:

There was then a letter of 25th October from Dr Lucas' assistant, referring to the background and the fact that he had in fact been admitted for detoxification. The letter said that he had been successfully detoxified by the beginning of October and was referred to the council for help with allocation of accommodation. The letter said that he was now fit for discharge and was only in hospital due to his lack of accommodation and:

The authority gave the review decision on 2nd November 2004. That is the decision which is essentially under challenge. That sets out at some length the background and the reports which had been received. The letter refers to the more recent letters from Dr Lucas and the fact that he had been admitted for detoxification treatment. The panel then goes on to say they have considered those matters, but that, given that there is no diagnosis of mental illness nor indication that he is currently suffering from severe depression, they do not regard him as having a priority need within the statutory test.

I should have noted that before the first decision a reference had been made to the council's own medical officer for advice. He had put in a short note giving his recommendation that the applicant was not vulnerable. However, the later information and the letters from Dr Lucas were not referred to the medical officer.

I should add that in the decision letter the council noted that the Housing Advice Centre had referral rights to a number of housing associations and this would be suitable for an applicant not deemed to be in priority need. They indicated how the applicant could contact the Housing Advice Centre.

Following that decision, it seems that the Enfield Law Centre were involved. This appears to be the first time that the applicant had legal advice. There was also a further letter from Dr Lucas dated 16th November in which he expressed great concern over the decision, and emphasised that they could not discharge him from hospital until accommodation was found. The council replied that the letter contained no new material which would alter their decision. The Law Centre indicated that they would be lodging an appeal with the county court on 23rd November and asked for interim accommodation in the meantime. That was refused in a letter of 2nd December. That letter noted that the applicant had been advised to contact the Housing Advice Team in both the previous letters, but had failed to do so. He was urged to take up that advice.

The matter came before Judge Pearce on 28th January. She set out the seven grounds on which the appeal was being pursued. Apparently on the morning of the hearing the seventh ground was added, which related to an allegation that there had been a failure to comply with regulation 8(2) of the 1999 Regulations. That regulation requires the authority at the review stage, if it finds that there is a deficiency or irregularity in the original decision but is minded to reach the same result, to notify the applicant and give him an opportunity of submitting representations.

That particular regulation was the subject of detailed consideration by this court in a decision called Hall v Wandsworth London Borough [2005] 2 All ER 192, which was given on 17th December 2004, and perhaps drew attention to some for the first time to the significance of regulation 8(2). It may be in response to that that this point was added to the grounds.

Judge Pearce went through the material in considerable detail and the relevant authorities. She did consider whether there was a deficiency in the first decision. As I read her conclusions at paragraphs 51 to 52, she thought there was a deficiency: first, because insufficient weight had been given to the age of the appellant; and, secondly, because the relevant test, derived from the leading case of Pereira, had not been properly applied. But she then went on to consider the second decision, correctly directing herself that this was to be approached on the basis of ordinary judicial review principles. She appears to have had some criticisms to make of the extent of the enquiries made by the authority, which she discusses in paragraph 57. She considers to what extent the authority have properly taken into account the later material, and in paragraph 61 she says:

In paragraph 62 the judge dealt implicitly, I think, with the regulation 8(2) point. She said:

That decision is challenged by Mr Paget on behalf of the applicant. The grounds of appeal set out a number of points, but he rightly accepts that this would be a second appeal in this court and that therefore he must show something more than that there is an arguable error of law: he must show that the appeal would raise an important point of principle or practice or that there is some other compelling reason for the Court of Appeal to hear the matter.

Guidance on the application of that second appeal test to this particular context of the homelessness legislation was given by this court in Cramp v Hastings Borough Council [2005] EWCA Civ 1005, where it was indicated that, in this particular context, it might be appropriate to make certain qualifications to the principles set out more generally by Dyson LJ in Uphill v BRB (Residuary) Ltd [2005] 3 All ER 264.

The points on which Mr Paget relies as being ones of particular importance requiring guidance from this court are noted in the grounds of appeal. He says, in particular, that guidance needs to be given following Hall as to whether a housing authority is able to opt out of the requirements of regulation 8(2) of the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999. The court also needs to give guidance, again following Hall, as to when further medical evidence need not be referred to a medical assessment officer before a review decision is made.

Mr Paget has argued persuasively that there are errors in the judge's approach to this matter. In particular, in relation to the first of the points, he relies on the fact that the judge has apparently found that there was a deficiency in the first decision, but that she does not then hold that the decision should be quashed because of a failure to apply regulation 8(2). However, having listened carefully, I am unable to see what further guidance he is suggesting that this court should give beyond that which was given in the Hall case. In that case (in which I gave the leading judgment with which my colleagues agreed), I attempted to set out the purposes of the regulation 8(2) as an important part of the procedures designed to ensure that matters were dealt with fairly. However, as with any procedural provision, I acknowledged that it would be open to a court subsequently reviewing the matter to say that a failure had not in fact caused any prejudice and to refuse relief on those grounds. In paragraph 53 of the judgment I specifically supported the judge's approach in finding that there had in fact been no prejudice in relation to one of the cases. That is what the judge has done here. Obviously, if she had said that it was open to the authority simply to opt out of regulation 8(2) that would have been a clear error of law, but she does not say that. What she says is that there was the opportunity to provide any information that was relevant, and that there has been no prejudice. Mr Paget says, "Ah, but that did not focus the applicant's mind specifically on the reasons on which his application was going to fail or the scope of the evidence he needed to call." However, that does not seem to me to raise any point of general importance or any point of law. It is a question which is very much fact-sensitive.

I also take account of the fact that following the decision, when there was no doubt about the position that the authority were taking, the applicant, by then with legal advice, did make further representations. Those representations were considered and they produced the same decision. So, for my part, on that first issue I see no error in the judge's approach nor any need for further guidance from this court.

As to the second point, the issue as I understand it is that there was significant additional medical material put in on the applicant's behalf and that it was therefore wrong of the authority not to refer that to the medical officer.

Again, however, I am unable to see how this court can lay down some sort of general principle or give general guidance which is going to be of assistance. It happens that on the day before the judgment was given in the Hall case, this court, in a different constitution, gave another judgment on very similar issues in a case called Osmani v Camden London Borough Council [2005] HLR 22. In that case Auld LJ, giving the leading judgment, helpfully summarised the principles relating to this particular part of the homelessness legislation. He emphasised the imprecision in the statutory test and the scope which was given for an evaluative judgment by the authority. He also referred to the question of medical evidence and emphasised (at page 341) that:

So clearly medical evidence has an important place, and in an appropriate case it is clearly right for the authority to seek expert guidance. But I think Mr Paget shrinks from saying that there can be any absolute duty to do so. It must depend on the particular case. The authority's approach is normally only challengeable if it is unreasonable in the Wednesbury sense.

Mr Paget sought to gain some comfort from my decision in the case considered with Hall v Wandsworth which relating to a Mrs Carter. In that case, it is true, I said that the authority's decision was deficient, partly because of their failure to deal properly with the medical adviser's opinion. But that turned very much on the adequacy of the reasons which made it very unclear how the authority reached their decision.

Even if there were grounds for challenging the authority's approach to this matter and even if the court considered that it might have been better, given the strong opinions expressed by Dr Lucas, for the matter to have been referred to a medical adviser, there is certainly nothing which in my view could categorise the authority's decision as Wednesbury unreasonable, still less as something which requires further guidance from this court.

For those reasons, I would dismiss this application.

I add one comment on the way the matter has come to this court. I have mentioned the fact that the applicant had been advised to go to the Housing Advice Centre. It seems that when he eventually did go, they were in fact able to help, and on 21st March accommodation was provided and he has been accommodated since then. Unfortunately, Waller LJ, who considered this matter on the papers, had done so three days before. He was unaware that the case was becoming academic, and he adjourned the matter for oral hearing on notice with the appeal to follow if permission were granted.

As a result of that, the authority has had to be represented before us by Miss Etiebet. In her skeleton argument she has helpfully set out the history since then, suggesting that, whatever the merits of this case, we should refuse permission on the basis that there is no relief which we could now give which would materially assist the applicant. It appears that Enfield Borough Council became aware that the applicant had been accommodated in mid-April and invited the applicant's solicitors to withdraw the appeal. I understand that they at that point referred the matter to the Legal Services Commission, as was their duty, indicating the circumstances. It was not until 3rd August that the Funding Policy Panel of the Legal Services Commission wrote to the applicant's solicitors dealing with the question of whether the matter should continue to be funded as being of general public interest. They said that they considered the case had "significant wider public interest". That relates to the lowest of the three categories which they use, namely "exceptional", "high" and "significant", but they added:

That was simply advice. Enfield Council became aware of that and registered an objection, but that apparently was not until 21st September. But it appears, from what we have been told, that, notwithstanding that objection, the decision was made by the relevant decision-maker within the Legal Services Commission to continue funding, at least to this stage.

I mention that because it is clearly a matter of considerable concern if scarce legal aid resources are used on a case which has become of purely academic significance. Clearly there may be cases where, even though the particular applicant has been satisfactorily dealt with, there may be important points of principle and reasons for the court to consider them, applying the approach of the Cramp case.

However, it is very unfortunate that it seems to have taken so long for this matter to be reviewed. Unfortunately, the Borough Council did not, perhaps as I think it is now conceded they should have done, take the step of referring the matter themselves to the Legal Services Commission at the outset, as soon as they knew that the applicant had been housed, and making their objections clear. I have already indicated that I would not regard this as a case for permission in any event, and so the fact that it has become academic does not need to be weighed in the balance. I mention it because authorities should be made aware of the importance of making their position known to the Legal Services Commission as soon as possible. The Legal Services Commission should be in a position to deal with such points as quickly as possible.

For those reasons, I would refuse permission.

LORD JUSTICE PILL: I agree that permission to appeal should be refused and for the reasons given by Lord Justice Carnwath.

In supporting his application, Mr Paget has relied on statements of Brooke LJ in Cramp v Hastings Borough Council [2005] EWCA Civ 1005. Considering the approach of this court to homelessness appeals and second appeals in the context of CPR 52.13, Brooke LJ stated, at paragraph 66, that earlier cases should not represent:

Moreover, having made that statement, Brooke LJ, at paragraph 68, went on to reaffirm the approach of courts in cases such as these:

The application for permission is accordingly refused.