Aw-Aden v Birmingham City Council

J U D G M E N T

1. LORD JUSTICE MAURICE KAY: This is an appeal against an order of Mr Recorder Cleary made in the Birmingham County Court on 22nd March 2005 when he dismissed the appellant's appeal under section 204 of the Housing Act 1996. The appeal to this court is therefore a second appeal within the meaning of CPR 52.3.

2. The appellant is a Belgian citizen who came originally from Somalia. He is a well-qualified scientist. In 2003 a fixed term contract under which he had been working in Belgium came to an end. He had some knowledge of the United Kingdom, most recently from a holiday here in 2002. He came to England in search of work in June 2003, staying initially with a friend or relative in the Moseley area of Birmingham. His wife and nine year old daughter joined him in November 2003.

3. The house in Moseley became overcrowded and on 23rd March 2004 he applied to Birmingham City Council ("the Council") for assistance as a homeless person pursuant to Part 7 of the 1996 Act. On 13th May 2004 the Council decided that the appellant was homeless, eligible for assistance and in priority need but that he was intentionally homeless. The decision letter stated:

"We have concluded that you became intentionally homeless within the meaning of section 191 of the Housing Act 1996. That means deliberately doing something or failing to do something which has resulted in the loss of accommodation which otherwise it would have been reasonable for you to continue to occupy. In reaching this conclusion, we have taken into account the following:

• You gave up your accommodation [in] Belgium which you were legally entitled to occupy.

• You gave up this accommodation and came to the UK knowing that you had made no prior arrangement to secure your own permanent settled accommodation."

4. The appellant applied for a review of that decision. There was some delay and a first round of litigation which was settled, but on 4th November 2004 the Homeless Review Panel upheld the original decision. It said:

"In your homeless application you said you came to the UK to find employment as you think you have a better chance of doing so here than in Belgium ...You also advised us that the property you had in Belgium was a two bedroomed flat. This property was enough to meet the housing needs of you and your family ...The Panel does not accept that your chances of gaining employment were greatly increased by coming to the UK. It has taken you over 12 months to obtain the position of a School assistant and you are still reliant on welfare benefits to maintain the minimum income living standards . . . The property that you voluntarily gave up in Belgium was suitable to meet your housing needs. It was affordable to you as the rent was met by Belgium's social security. We are not aware of any circumstances that would have made it unsuitable for you to continue to live there. Accordingly, I must inform you that we have decided to uphold the original decision that you made yourself intentionally homeless by deliberately giving up accommodation that was available to you in Belgium without making prior arrangements for settled accommodation when you came to the United Kingdom."

5. That led to the appeal to the County Court under section 204 which provides a right of appeal on a point of law. The jurisdiction of the County Court under section 204 is, in the words of Lord Bingham of Cornhill, "in substance the same as that of the High Court in judicial review": see Runa Begum v Tower Hamlets London Borough Council [2003] UKHL 5, [2003] 2 AC 430, at paragraph 7. As I have indicated, the learned Recorder dismissed the appeal.

6. The issue raised on behalf of the appellant in the County Court and on this further appeal relates to section 191 of the 1996 Act which provides:

"(1) A person becomes homeless intentionally if he deliberately does or fails to do anything in consequence of which he ceases to occupy accommodation which was available for his occupation and which would have been reasonable for him to continue to occupy.

(2) For the purposes of subsection (1), an act or omission in good faith on the part of a person who was unaware of any relevant fact shall not be treated as deliberate."

The case for the appellant is that when he gave up the accommodation in Belgium he was unaware of a relevant fact, namely the true prospect of his being able to find suitable work in the Birmingham area, and with it the means to pay for suitable accommodation for himself and his family. In the decision documents emanating from the Council, there is no express reference to section 191(2). The letter evidencing the decision of the Review Panel simply refers to the original decision "that you became homeless intentionally within the meaning of section 191". Nor, for that matter, had the correspondence from the appellant's solicitors seeking a review and setting out his case referred expressly to section 191(2). Yet when the hearing took place in the County Court, the error of law for which Mr Nicol on behalf of the appellant contended, was that the Council had made an error of law by failing to consider and apply section 191(2).

7. Mr Nicol put, and puts, as the centre piece of his case the decision of Roch J in R v London Borough of Hammersmith and Fulham ex parte Lusi [1991] 23 HLR 260. The passage upon which he places particular reliance is to be found in the judgment at page 269 and is in the following terms:

"Prospects of employment which lead a person to cease to occupy their existing accommodation in the belief that that person will be able to afford suitable permanent accommodation for himself and his family is capable of being a relevant fact."

8. That decision received the approval of the Court of Appeal in R v Exeter City Council ex parte Trankle [1994] 26 HLR 244. However, in R v London Borough of Ealing ex parte Sukhija [1994] 26 HLR 726 a distinction was drawn between "matters of hope" and relevant facts for the purposes of section 191(2). In the course of his judgment, at page 730, Sir Stephen Brown said:

"I consider the local authority was fully justified in taking the view that those matters relating to the prospect of employment and housing in England were matters of hope rather than relevant facts."

Lord Justices Staughton and Rose, in agreeing with the President, expressed doubt as to whether the facts in Lusi had really fallen on the side of the line decided by Roch J in that case.

9. It is with an eye on these differences of at least emphasis that Brooke LJ granted permission for this second appeal in the present case. He said:

"It will be for this court to decide authoritatively once and for all whether ex parte Lusi is still good law."

Unfortunately, when he conducted the hearing, in the course of which permission was granted, he was not shown some later authority.

10. In the years since Lusi and Sukhija , section 191(2) has been considered in a number of cases. But the fullest analysis of the subsection and the earlier authorities is to be found in the judgment of Carnwath J (as he then was) in R v Westminster City Council ex parte Obeid [1996] 29 HLR 389. Having considered in particular the judgments of the Court of Appeal in Trankle and Sukhija , Carnwath J concluded at page 398:

"The effect of those judgments, as I understand them, is that an applicant's appreciation of the prospects of future housing or future employment can be treated as 'awareness of a relevant fact' for the purposes of this subsection, provided it is sufficiently specific (that is related to specific employment or specific housing opportunities) and provided it is based on some genuine investigation and not mere 'aspiration'."

Lightman J expressed himself similarly in the case of R v Westminster City Council ex parte Ndomdinga , unreported, 14th October 1997, although there are differences in the language of his exposition.

11. In my judgment, what was said, particularly by Carnwath J in Obeid , is a correct analysis of the authorities and properly explains the approach to be taken to section 191(2) in a case such as this. It should now have the authority of this court as a correct exposition of the law. One of the difficulties with the present case is that the learned Recorder, perhaps encouraged by case management directions that had been given, embarked on a course of hearing evidence and making his own findings before coming to his conclusion as to section 191(2). He ought not to have proceeded in that way. As I have observed, his task was essentially one of judicial review, neither more nor less. If he had confined himself to that task, in my judgment he would inevitably have found that the factual matrix of the present case (by which I mean the circumstances in which the appellant and his family left the suitable accommodation in Belgium in the hope that he would soon find suitable accommodation in this country) is such that, as a matter of law, section 191(2) simply does not bite. What is advanced as "relevant fact" lacks the necessary specificity referred to by Carnwath J. Although the appellant's intentions were formed in good faith, his prospects of obtaining suitable employment here when the Belgian accommodation was given up rested on little more than a wing and a prayer. It cannot be said that the original decision-maker or the Review Panel fell into legal error by failing to invoke section 191(2) in favour of the appellant.

12. Although the grounds of appeal have been formulated and reformulated in a number of ways, they all run aground on this analysis and I would accordingly dismiss this appeal. However, it is appropriate to add the following:

(1) Mr Nicol is profoundly critical of the decisions of the Council in homeless cases across the board. He suggests that unlawful decisions are endemic. He relies on a witness statement from his instructing solicitor, who is a specialist in the field practising in Birmingham, and also upon some academic work. I prefer to express no view on this criticism, which is obviously resisted by Miss Rowlands on behalf of the Council, although she does rightly concede that there were shortcomings in the decision-making procedure in the present case.

(2) Mr Nicol also submits that even if the appellant's solicitors omitted to refer to section 191(2) in the application for an internal review, that did not relieve the Council or the Review Panel of the duty to consider it. He relies on O'Connor v Kensington and Chelsea RLBC [2004] HLR 601. The first answer to this is that in the circumstances of this case, to which I have referred, section 191(2) was and is a non-starter. As regards O'Connor , I simply observe that whilst there are or may be cases in which the first decision-maker or the Review Panel may be required to consider section 191(2) because the material before them renders the need for such consideration obvious -- notwithstanding the absence of express reference to the subsection in the representations submitted by or on behalf of the applicant -- for my part, I would not impose such a duty outside the circumstances of obviousness or circumstances in which it is plain that the housing authority has been put on warning as to something that might arise and merit consideration under that statutory provision.

13. As I have indicated, I would dismiss this appeal.

14. LORD JUSTICE LAWS: I agree. In my judgment, section 191(2) contemplates by the term "relevant fact" a particular and specific state of affairs and not something in the nature of a general situation like the state of the job market in the West Midlands or elsewhere. Otherwise the statute would be deployed for the encouragement of social mobility generally by the promise of swiftly available housing. I detect no such legislative purpose in the Act.

15. LORD JUSTICE BROOKE: I agree with what Maurice Kay LJ has said about the authority of the decision of Carnwath J in ex parte Obeid . I also agree with him on what he said about the proper approach to what Sedley LJ said in the case of O'Connor v Kensington and Chelsea London Borough Council .

16. There are three short points that I wish to make by way of an additional judgment. The first is that the statutory scheme under Part VII of the Housing Act 1996 prescribes the duty to make all necessary enquiries under Section 184(1) of the Act. There is plenty of case law to show what this means and I have no reason to suppose that the Borough of Birmingham is not aware of that case law. It has the duty to give a reasoned decision: section 184(3).

17. There is then a right to ask for a review, and we have been told that applications for a review in these cases are running at the rate of 280 per month in Birmingham. The regulations entitle an appellant to make representations and the result of this process must be a reasoned decision: see Regulation 3 of the Allocation of Housing and Homelessness Review Procedures Regulations 1999. Like Maurice Kay LJ, I do not regard myself as in any way qualified to express a view on the general quality of the decisions taken by this housing authority. They are certainly significantly less full than the decisions that this court considered in the recent case under the title of Cramp v Hastings Borough Council [2005] EWCA Civ 1005, and it is important in the interests of good administration that a housing authority should take this obligation seriously when it is reviewing a decision. If it takes it seriously, there is less likelihood of a further appeal on a point of law.

18. The decision on review can only be upset if there is an error of law. In the recent asylum case of R (Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982 at [9] I endeavoured to set out in very simple terms what were the familiar errors of law which might be committed in that field. Among other things, I drew attention to the fact that the word "irrational" is grossly overused by professionals in the public law field, that the error of law has got to be a material one, and that a court conducting a judicial review will be slow to fault a decision for inadequacy of reasons.

19. That is the first point that I wish to make, laying emphasis on the importance of the quality of the decision not only the original decision-maker but also of the reviewer, and the restricted grounds on which a decision on review can later be successfully challenged for error of law.

20. The second point I wish to make is this. The regulations set out a timetable for the review process. They allow representations to be made and they impose a duty on the reviewer to take their decision within eight weeks from the day on which a request for a review was made in a case like this. The original decision was on 13th May and the request for review was made on 21st May. By my arithmetic, the decision should have been made on 16th July.

21. On 26th May solicitors appeared on the scene and we have been told by Miss Rowlands that this is quite a familiar feature of the Birmingham scene, whatever statistics may show elsewhere in the country. The solicitors expressly requested a copy of the homeless report and any notes taken in the course of the interview with their client so that they could make effective representations once they had studied these documents. In the meantime, they had some preliminary comments to make. The local authority failed to issue a review decision and eventually County Court proceedings had to be taken. Those were aborted when on the 1st November the local authority contacted not the solicitors but the appellant himself. Nobody knows what was said in that telephone conversation, but it led to the decision on the review which was taken on 4th November without sending the solicitors the information they had asked for or permitting them to make the representations which they were entitled to make under the regulations. That was not only bad administration: it was also unlawful. If it had mattered, then matters would have had to be put right in due course.

22. We have been told by Miss Rowlands that there were resource problems within her client authority at that time. One can understand the scale of the problems they faced with the numbers of reviews to which I have referred. Nevertheless, they have to comply with the law, and if the law entitles an appellant to make representations and if solicitors acting for an appellant make a reasonable request for documentary material before they can make their representations, then the review decision should certainly not be made without complying with that request.

23. The second general point I therefore wish to make is the important point that the housing authority carrying out the review must remember that they are carrying out a procedure in which the appellant is entitled to make representations and is entitled to ask for material documentation such as the notes of the interview, and that they must then wait a reasonable time until they have received representations before they make their decision.

24. The third point I wish to make is that this case, like the two cases this court heard in Cramp v Hastings Borough Council [2005] EWCA Civ 1005, reveals the existence of considerable problems at County Court level because the Civil Procedure Rules Committee has not yet studied the need to give appropriate guidance on the procedure to be adopted on an appeal of this kind. This is, in all but name, a judicial review procedure, so that one would expect the Part 54 procedure to be followed. If it was, then it would be quite clear under the rules that the respondent authority had to set out their grounds for resisting the application, and if the rules provided for that then no doubt the problem of taking an appellantby surprise would not have arisen. Mr Nicol makes the complaint that he was taken by surprise by a point which was made at the hearing.

25. As it is, it is a Part 52 appeal. As I said in my judgment in Cramp , judges are endeavouring to make up the gap in the rules by giving sensible directions for the hearing of these appeals. But experience of this case, in which evidence was adduced before a Recorder who had no previous experience of considering an appeal on a point of law and proceeded to make findings of fact in the course of the appeal, highlights the need to have clear cut procedures which are appropriate for what is in essence a judicial review. If it was clearer that this was in essence a judicial review, then by the same token it would be clearer that if a material error of law were detected during the course of the review then it would not be for the County Court judge to make a decision on the facts. Instead, the case should be remitted to the original decision-maker.

26. As it is, perhaps more by luck than anything else, these points need not upset the decision on this appeal because I am completely satisfied that there was no effective error of law to be detected in the history of this case. In those circumstances, I too would dismiss this appeal.

Order: Appeal dismissed. Respondent's legally aided costs to be subject to detailed assessment.