Lewis v London Borough of Havering

LORD JUSTICE NEUBERGER: This is a renewed application for permission to appeal. It is brought on behalf of Mr Russell Lewis. It arises from a decision which it is fair to say I have not seen in approved form, through no fault of anybody’s, because this application for permission to appeal has been brought very promptly.

On 7 November 2006 HHJ Polden sitting in the Romford County Court upheld a decision of the London Borough of Havering to refuse temporary housing to the applicant, Mr Russell Lewis, pending the outcome of his appeal against their decision that he was not in priority need for housing. Basically, this matter concerns two applications by Mr Lewis. The first is what I may call the primary application for housing under the Homelessness Provisions of the Housing Act. That failed because, as I have indicated, he was not in priority need and the decision was appealed on grounds which are set out on pages 30 to 32 of the bundle.

In the same document he appealed against a decision not to extend his interim accommodation pending the hearing of that primary appeal. That secondary appeal was successful because the council’s refusal to rehouse him was unreasoned, and accordingly the decision as to whether or not to provide with temporary accommodation was reconsidered in a letter dated 20 October 2006. In that letter reference was made to the decision of Latham J in London Borough of Camden ex parte Mohammed in which he said that, effectively, if the council when considering whether to continue interim accommodation for an applicant who is appealing against the decision not to rehouse him, considers:

The letter continued:

The only argument I really need take time on here, because it is the only argument that is sought to be raised by the applicant, is the applicant’s argument, rejected by the judge, that the local authority ought to have taken, and in this case failed to take, into account the grounds of appeal raised against the primary decision contained, as I have mentioned, on pages 30 to 32 of the bundle when deciding “the merits of the case itself”. Tuckey LJ refused permission to appeal on paper on the grounds that:

Having heard further argument on this issue, I am not persuaded that those two reasons are sufficient to justify permission to appeal being refused. The notion that the authority cannot be expected to plough through and evaluate grounds of appeal on points of law clearly has some force but the point is this: a local authority when considering “the merits of the case itself” are going to have to consider questions of fact and often going to have to consider questions of law. Those questions will have to be considered in a fairly broad sense and would certainly only in a very rare case, if at all, involve a local authority having to plough through. The local authority on a question of whether to provide interim housing has to take an important decision, which it should not take casually, but it is not going to be able to look at “the merits of the case itself” in enormous detail. I do not think the fact that if it was required to look at the grounds of appeal on the case itself, that would be unsatisfactory.

I go further than that. I have some difficulty at the moment with the notion that they should turn a blind eye to a Notice of Appeal. If the Notice of Appeal pointed out a blatant inconsistency between two paragraphs in the primary decision, I would find it rather surprising if the law was that the local authority was entitled completely to disregard that. If the Notice of Appeal had pointed out that certain factual findings were erroneous and demonstrated this, again I would find it surprising, at least on the face of it, if the local authority could ignore that.

Obviously points can always be raised in Notices of Appeal that may have very little merit, or may appear to have little merit, and that is not to suggest that the local authority should plough through any Notice of Appeal in great detail, but at the moment I think there must be an arguable case for saying that they cannot just ignore what is in it as a matter of principle in every case. As for the point that in most cases they will not have seen what is in the Notice of Appeal, with all due respect that seems to me to be irrelevant. If there is not a Notice of Appeal against the primary decision at the time they come to consider whether or not to continue the interim housing, then there is nothing in the way of a Notice of Appeal to look at. If there is a Notice of Appeal in existence then it seems to me, as Mr Duddridge says, it would seem on the face of it at any rate to be a relevant factor which could be taken into account. In many cases it may not be worth anything in the local authority’s eyes simply repeating the arguments which failed on the primary issue. But in some cases the Notice may raise new points that the local authority have not thought of, and it would seem strange that it should be of a matter of law that there was not something which could be taken into account, at least to my mind.

My attention has been drawn to the decision of this court in Frances v Kensington and Chelsea Royal London Borough Council [2003] 1 WLR 0248 which is suggested by Ms Bolton in her submissions on behalf of the council to be of assistance to her case. I have to say I am not sure it is. Simon Brown LJ in paragraph 8 read out the decision letter. I am by no means satisfied that the sentences beginning “in carrying out that balancing exercise” to the end of “discretion” were made disregarding the Notice of Appeal in relation to the primary issue in that case. I think it quite possible that those observations were directed to what was in the Notice of Appeal. Certainly I do not think it can be treated as the decision which addresses the point which is sought to be raised in this case.

There is also the question of whether, if the council should have considered the Notice of Appeal, it did so. That does not seem to have been considered by the learned judge, although it may have been because I have only seen an unapproved extract of part of his judgment.

Two points can be made in favour of the council. The first is that they put in evidence before the judge to show that they had taken into account the Notice of Appeal. I am dubious as to whether that will do, and in the absence of having been taken to any binding authority on the point I am not prepared to accept that that would certainly defeat an appeal. There are authorities, whose names I am afraid I cannot remember, which may indicate that a person is entitled to proceed on the basis that a decision is contained in a document, and that supplementary reasons given by the decision maker after an appeal has been launched against a decision cannot be taken into account.

Secondly, it might be said that if the local authority should have taken into account the Notice of Appeal, a fair reading of the letter of 20 October entitles them to argue that they did. I think there may be something in that point, but I am very dubious about it. It seems to me that when considering “the merits of the original decision” the letter of 20 October refers to two documents: the decision of 30 June and the renewed decision of 1 September. It does not refer to the Notice of Appeal against the primary decision contained in those two letters. Furthermore, when one reads the rest of the letter of 20 October, it refers to one or two other documents specifically as being documents which have been taken into account on the second and third issues identified by Latham J. At the moment I think there is a well arguable case for saying that on a fair reading of 20 October letter the council did not take into account the Notice of Appeal on the primary issue.

I believe that this may be a second appeal. Is the point which I consider to be arguable sufficiently important? In my view it is. First, it does appear that there is now a decision, and certainly a strong view current, that a council considering an application for interim housing pending an appeal under Section 204 of the Housing Act is entitled to disregard the contents of the Notice of Appeal if it is available at the date of their decision under Section 204. That seems to me to be a point which merits consideration by this court. The appeal may nonetheless fail even if the appellant succeeds on the point because it may be concluded that the letter of 20 October should be read as indicating the council had taken into account the Notice of Appeal, either because it is inherent in the 20 October letter or because of the subsequent evidence put in. But I am not convinced that that is the case.

I have not been invited to do this yet, but I am not inclined to expedite this matter. However, I think it should be heard as soon as possible. I do not think it should last more than an hour or two. I have purposely given a long judgment, which may also be somewhat discursive, but the reason is to identify the issues as I see them to enable the appeal to be disposed of, I would hope, rather quicker than might otherwise be the case. In my view, this appeal should be able to be disposed of in an hour and a half of argument, possibly an hour, and therefore should come on as quickly as possible. I will not formally make an order for expedition.

These last remarks are very much based on my preliminary view and if either counsel object to my proposal, either because they say it should be expedited or because they say it should not come on as soon as possible or because they think an hour to an hour and a half is too short or too long, then they should say so.

I would also think it should be heard by three judges because there is a possibility of disagreement and a yet further hearing on this matter would be unfortunate.