Aw-Aden v Birmingham City Council

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.

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.

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:

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:

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.

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:

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:

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:

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:

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:

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.

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:

As I have indicated, I would dismiss this appeal.

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.

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.

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).

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.