Gentle v London Borough of Wandsworth

J U D G M E N T

1. LORD JUSTICE CHADWICK: This is a renewed application for permission to appeal from an order made on 8 July 2005 by Her Honour Judge Knowles sitting in the Wandsworth County Court on an appeal by the applicant, Ms Kathleen Gentle (also known as Ms Lucy Matthews) under section 204 of the Housing Act 1996. The application, therefore, is one to which section 55(1) of the Access to Justice Act 1999 and CPR 52.13 apply. The court cannot grant permission to appeal unless satisfied that an appeal would raise an important point of principle or practice, or that there is some other compelling why this court should entertain a second appeal.

2. The grounds of appeal set out in the appellant's notice are these:

"1. The judge wrongly concluded that the respondents' reviewing officer had fairly balanced the conflicting medical advice that he had received in respect of the appellant's mobility (this ground raises an appeal on a point of law).

2. The judge wrongly concluded that the respondents' reviewing officer had been entitled to decide that there had been no deficiency or irregularity in the original decision for the purposes of regulation 8(2) of the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 (this ground raises an appeal on a point of law)."

It is now only the second of those grounds that is pursued. It is accepted that the first ground is not one that can be relied upon on an application for permission to bring a second appeal.

3. To my mind it is impossible to suggest that the second ground (any more than the first) raises any point of principle or practice, and it is not suggested that it does. The thrust of the submissions on behalf of the applicant is that this is a case in which there are compelling reasons for a second appeal because the judge's decision was manifestly wrong. So, it is said, the Court of Appeal must interfere in order to remedy an obvious injustice.

4. An obvious injustice is one which might be expected to be so striking that it would be impossible to conceive that any member of this court would fail to recognise it. It is important to keep in mind that this court does not interfere by way of a second appeal simply because it may feel that the judge has gone wrong. What is needed is for the court to be persuaded that there is something so wrong with the decision below, and so likely to result in serious injustice, that something has to be done about it.

5. That was not how this case appeared to May LJ when he refused permission on the papers. He said this, in his order of 26th August:

"The judge's reasons for rejecting your submissions on ground 2 (paragraphs 21-30) are persuasive."

That raises a difficult hurdle for an application put on the grounds of compelling reason.

6. An obvious injustice is one which might be expected to be so striking that it would be impossible to conceive that any member of this court would fail to recognise it. It is important to keep in mind that this court does not interfere by way of a second appeal simply because it may feel that the judge has gone wrong. What is needed is for the court to be persuaded that there is something so wrong with the decision below, and so likely to result in serious injustice, that something has to be done about it.

7. The underlying facts can be stated shortly. On 2 June 2004 the applicant, then 18 years of age, applied to Wandsworth London Borough Council, as the local housing authority, under Part VII of the Housing Act 1996 for housing assistance. By a letter dated 11 June, the Housing Department informed her that it accepted that she was not ineligible for assistance on immigration or asylum grounds; that it accepted that she was threatened with homelessness; but that it was not satisfied that she had a priority need for the purposes of section 189 of the Act. That letter set out the four categories of priority need in section 189(1) and referred to the additional categories introduced by the Homelessness (Priority Need for Accommodation) (England) Order 2002. And it referred to the test of vulnerability established in this court in R v Camden London Borough Council ex parte Pereira [1997] 31 HLR 317.

8. For reasons which do not appear from the papers now before the court, the decision notified by the letter of 11 June 2004 was quashed and withdrawn. The Housing Department looked at the application again. It did so with the benefit (i) of a medical report, dated 10 August 2004, from Miss Daly - a Consultant Orthopaedic Surgeon at St George's Healthcare NHS Trust - and (ii) a report from its own medical adviser, Dr Keen, dated 24 August 2004. Dr Keen's report contained this passage:

"I note her surgeon's report, and although her recovery from fracture is incomplete, further treatment or surgery is not currently indicated, and her functioning is reasonable. Furthermore, there is no confirmed mental illness nor is she on any relevant treatment.

I continue to consider her capable of reasonable function and activity and make no housing recommendation."

That was the position at the time when the council came to reconsider the application for assistance. The council reached a decision which it communicated in a letter dated 20 October 2004 from Miss Taylor of the Homeless Persons Unit. It was not satisfied that the applicant was in priority need for the purposes of the Act.

9. Miss Taylor wrote that the council had given "careful consideration to the medical information supplied by the GP and the housing application questionnaire form completed by your GP and one completed by you on 28 September 2004"; and that regard had to be given to the Code for Guidance for Local Authorities and in particular the sections dealing with priority needs. She then set out the relevant legislation under section 189(1)(c) and regulation 5(3) of the 1999 Regulations, and the facts which she had taken into account. She said this:

"You are 18 years old. You have been treated for a fractured femur in January 2001 and have had four episodes of surgery. You are not currently in receipt of medication. You were previously treated for one incident of self-harm in the past. It is noted that you have required no input from psychiatric services.

I have applied the above facts together with your current personal circumstances to the question of vulnerability, in line with the case of Ex parte Pereira . I am also not satisfied that, when in a situation of homelessness, you are less able to fend for yourself than the ordinary homeless person, so that you are at greater risk of suffering injury or detriment than an ordinary homeless person who would be able to cope. As an indicator of vulnerability, I am not satisfied that you are any less able to find and to keep accommodation for yourself than the ordinary homeless person."

There is no criticism directed to the test that Miss Taylor applied. What is said, however, is that Miss Taylor did not refer in that letter - or, at least, did not refer expressly - to Miss Daly's report of 10 August 2004 or Dr Keen's report of 24 August 2004. There is no reason to think that Miss Taylor did not see those letters - which were on the Housing Department file; but whether she saw them or not, she did not refer to them in express terms.

10. The applicant - as she was entitled to do under section 202 of the 1996 Act - sought review of the decision communicated by the letter of 20 October 2004. That review was carried out by Mr Anthony Adelaja, a reviews manager employed by the Housing Department. He decided that the decision in the letter of 20 October 2004 should be upheld. He explained his reasons at some considerable length in a letter of 27 January 2005. In the course of his letter he directed himself, in particular, to the need to be satisfied that there had been no irregularity in the decision-making process adopted by the council; and he expressed the view that he had found no irregularity, defect or deficiency in the decision-making process.

11. It is said that, in reaching that conclusion, Mr Adelaja had overlooked the need for compliance with regulation 8(2) of the 1999 Regulations. The 1992 Regulations are in these terms:

"If the reviewer considers there is a deficiency or irregularity in the original decision, or in the manner in which it is made, but is minded nonetheless to make a decision which is against the interests of the applicant on one or more issues, the reviewer shall notify the applicant:

(a) that the reviewer is so minded and the reasons why; and

(b) that the applicant, or someone acting on his behalf, may make representations to the reviewer orally or in writing or both orally and in writing."

12. it is clear that Mr Adelaja did have Miss Daly's report in front of him: he referred to it in his letter of 27 January. There is no reason to think that he did not have Dr Keen's medical report as well: he refers to the "Council's Medical Adviser's recommendation". He must have noticed that Miss Taylor had not referred to those reports in her letter of 20 October 2004. It is said that, having noticed that omission, he should have appreciated that there had been an irregularity. Miss Taylor had not told the applicant that she was relying on those reports.

13. Leaving aside for the moment Mr Adelaja's failure to identify an irregularity (if there be one) in the original decision, in all other respects Mr Adelaja's letter contains full reasons as to why, on review, he affirmed the decision that this applicant is not a person who had established priority need.

14. The applicant appealed to the County Court. She did so under section 204 of the Housing Act 1996. That section provides that an applicant who is dissatisfied with a decision on review under section 202 may appeal to the County Court on a point of law. Notice of appeal was filed on 8 February 2005. The grounds of appeal, as originally set out in the notice, were that the council had failed to carry out enquiries and had misdirected themselves. The first of those grounds was abandoned at the appeal; and so the only remaining ground was that the council had misdirected itself. The applicant sought to add four further grounds at the hearing. Those included ground 6 - that the conduct of the review was procedurally unfair. So that the issue of procedural unfairness was raised before the judge albeit at a late stage.

15. The appeal came before Her Honour Judge Knowles on 8 July 2005. She addressed the issue of procedural unfairness at paragraph 21 of her judgment. She referred to regulation 8(2), the need to comply with it, and the obligation on the reviewer to give notice of the fact that, although he had detected an irregularity, he was nevertheless going to affirm the decision. She went through the authorities on that point. At paragraph 29 of her judgment she reminded herself of the observations in London Borough of Tower Hamlets ex parte Ojo [1991] 23 HLR 488: that reasons must be proper, adequate and intelligible. In that case, the decision - unsupported by any proper reasons - was not a reasonable one.

16. The judge then went on to say this, at paragraph 30 of her judgment:

"However, that is in stark contrast, I have to say, to the position which I see here. This is not a situation in which it can be seen that the appellant cannot see upon what basis the application has been refused. It is quite clearly based upon the medical information. It is quite clear that, as at 20 October, the reviewing authority had in front of it not only the matters to which reference is made within the letter, but also it is quite clear that the letter from Miss Daly, of 10 August, was also there. I ask the question, therefore, is there any lack of reasoning? The answer, in my view, must be 'no'. The medical evidence has been considered at this point. I will say that, perhaps with the benefit of hindsight, the letter could have been somewhat fuller and that it perhaps would have been preferable to set out more detail as in the review letter. However, that does not detract from my reasoning that the position was clear, I have no doubt, both to the appellant and to her advisers. In no way could it be said to be Wednesbury unreasonable."

It is said that that passage shows that the judge failed to appreciate that the complaint was that the decision contained in the letter of 20 October failed to give proper reasons. Had she appreciated that that was the complaint, she would not have thought the matter was cured by the reasons given in the review letter of 27 January 2005.

17. It is clear that from paragraph 30 of her judgment that the judge satisfied herself that the letter of 20 October 2004 was a sufficient statement of the reasons which had led the council to reach the conclusion that this applicant was not in priority need. If there were an error, it was the failure of the reviewing officer himself to notice what the judge did not notice: namely that the letter of 20 October was defective. He should have drawn attention to that by a notification under regulation 8(2). His failure to do so, it is said, is a procedural irregularity so serious that this court ought to interfere.

18. Accepting, for the purposes of this application that that may have been a procedural irregularity, I am not persuaded that there is a compelling reason for this court to interfere in this case. It plainly did not appear either to the reviewing officer or to the judge that the letter of 20 October was defective in the way it is now said to be defective. Nor did that appear to May LJ. It is clear that the letter of 20 October 2004 is open to criticism, as the judge acknowledged; but there is no doubt, when one looks at this matter in the round, that this applicant's case has been fully considered on the basis of the medical evidence that she was entitled to have taken into account. Whether that happened in October 2004 may be open to some doubts; but it clearly did happen by the time the matter came before the reviewing officer in January. There is no reason at all to think that the applicant has actually suffered any injustice, whether or not there was a procedural irregularity in the lack of reasons on the letter of 20 October 2004 or in the failure to notify under regulation 8(2) of the letter of 27 January 2005. It is important to keep in mind that, on deciding whether to entertain a second appeal, this court is not looking to see whether the reasoning process of the judge is open to some criticism; but whether something has so plainly gone wrong that there is an injustice which needs to be put right. I am not persuaded that this application meets that test.

19. The application is refused.

ORDER: Application refused.