Lindsay v Birmingham City Council

This is a renewed application on behalf of Nikisha Lindsay for permission to appeal against a judgment and order made by HHJ McKenna in the Birmingham County Court at the Birmingham Civil Justice Centre on 19 June 2007. Permission to appeal was refused by Mummery LJ on the papers, and he observed (as is correct, obviously) that this, as will appear, is a second appeal within the definition of the second appeal in Rule 52.

The appellant is a 20-year-old single mother with a two-year-old son. An application was made in September 2005 to the respondent local housing authority, following which the authority accepted that she was homeless and eligible for assistance in priority need and not intentionally homeless. Accordingly, there was a duty upon the local housing authority under section 193 of the Housing Act 1996. There was some delay, but in August 2006 Birmingham offered her an introductory tenancy of a flat on the sixth floor of a block of flats. She viewed this flat with the housing officer and her support worker and decided to refuse the offer for a number of reasons, but the one that features in this application is that she says that she suffers from a fear of heights, and cannot reasonably be asked to live on a floor as high as the sixth floor in a highrise building. The respondent housing authority took the view that in those circumstances they were discharged from their duty by virtue of either section 193(5) or 193(7) of the Housing Act 1996. In short, it was their position that the applicant had refused an offer of suitable accommodation.

The applicant asked for a review of that decision, and by letter dated 9 November 2006 the local housing authority notified her that they had decided on review to uphold the original decision that they were discharged from their duty. This review decision was the subject of an appeal in the Birmingham County Court, heard on 12 March 2007 by HHJ McKenna; and that appeal was successful, and the review decision was quashed. The heart of Judge McKenna’s decision is in paragraph 12 of the transcript of his judgment, where he said:

“Looking at the decision letter I do not know whether Miss Daniels has resolved the factual dispute as to whether or not the fear of heights was mentioned to the housing officer at the time in favour of the Appellant or against her. I do not know whether she concluded that the alleged fear of heights was mentioned but because of the absence of reference to it elsewhere, for example, he did not think that the alleged fear of heights was severe enough to affect the suitability of a property, or whether she resolved the dispute of fact the other way. In these circumstances it seems to me that the reasons put forward in the review letter are inadequate on this aspect.”

There is then mention in the judgment of the conclusion appearing also to have been on the basis that the appellant had no need to see a doctor about her condition. It follows, said the judge, that this aspect of the decision letter was defective; and for that reason he allowed the appeal and asked the local authority to review the decision which it had made.

The respondent then carried out a further review, consequent upon Judge McKenna’s decision. They did this very quickly, and by 7 March, a mere six days later, had made a fresh decision, again upholding the original decision. The terms of the letter of 7 March, embodying this fresh review decision, show that the respondent had obtained further information from at least two people. The letter considers evidence available to the reviewing officer about the applicant’s fear of heights in greater detail than it had been considered in the first review decision. It concluded that the review officer did not accept that the applicant’s fear of heights was so severe to prevent her from living in sixth floor accommodation when she had accepted, as indeed she had, that she could live in third floor accommodation. There were other matters quite extensively looked at, which the applicant had raised and which are also dealt with in this letter, but they do not arise upon this application.

There was another appeal against this decision, which was heard by the same judge, HHJ McKenna, on 19 June 2007. The main grounds of appeal to the judge were, first, that it was procedurally unfair for the respondent to have made the 7 March decision without giving the applicant or her representative any opportunity to make representations. The respondent, it is said, did not put the result of further enquiries to the applicant. It was then said that the reviewing officer acted irrationally in making the decision about the applicant’s fear of heights.

The judge said that on the occasion of the first appeal to him he had been concerned that the outcome of the second review was likely to be the same as the first. As to the second review decision, the judge considered that there was ample material upon which the reviewing officer could have reached the decision which she did. The judge, however, had misgivings about the procedural fairness, and this concerned him. There was a question whether regulation 6(2) of the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 applied to a second appeal, following the court quashing a first review. This regulation essentially stipulates that upon a review under section 202 of the 1996 Act, the local housing authority has to give the applicant a proper opportunity to make representations. With some trepidation, as the judge said, he concluded that the regulation did not apply, and he said this:

“It seems to me that the result of a decision by the court to quash a review decision is that the local authority then has to, as it were, make that decision again. It does not mean that the whole process should recommence. What the local authority have to do is to take into account all the material that is then before them, which may include further material arising as a result of the appeal, and any comments made by the judge in his judgment on the appeal. But it does not seem to me that the local authority is required to go through the whole process once again of inviting representations and then considering those further representations.”

It will be recalled that he reached that conclusion upon those reasons “[w]ith some trepidation”.

The judge then decided that even if he were wrong, it was difficult to see what further material could possibly be forthcoming from the applicant on the issue of her stated fear of heights. If there was a technical infringement, it was, he said, immaterial. In substance, this was, I think, a decision that even if there had been an opportunity to make representations, it would have made no difference.

There are four proposed grounds of appeal to this court. These recognise that this would be a second appeal, but it is said that some important points of principle or practice arises which makes a second appeal desirable.

As to the first ground of appeal, it is said that Judge McKenna’s second decision was inconsistent with his first, in which it is said that the judge had said that the evidence was inadequate to justify the conclusion as to the applicant’s fear of heights. This, in my view, misrepresents the first decision, no doubt because Mr Nicol at the time had not got a transcript of the second decision, which in fact said that the reasons, not the evidence, were inadequate. It seems to me that there is no intrinsic inconsistency between the first and second decision in this respect. I would refuse permission on ground one, and certainly not conclude that it was the proper subject of a second appeal.

I take ground four next, putting it as one coupled with ground one. It is said that the second decision was irrational, and the elaboration of that, in brief, is that it is said that the ground is expressed as criticising a process of reasoning which relies on the fact that the applicant did not mention a fear of heights in documents or on occasions when she might have been expected to do so. It is suggested that the local housing authority in this case misguided themselves as to the weight to be given to matters such as these. When asked to explain why this was a the proper subject of a second appeal, Mr Nicol said that it was a matter upon which this court should be invited to give guidance as to the way in which a local housing authority upon a review such as this should assess evidence of this kind -- evidence to the effect that things have not been mentioned on occasions when they might, and of the weight to be given to that sort of evidence.

In my view the letter and the details written on page 139 of the bundle comprehend a perfectly rational decision, which was adequately reasoned. I would refuse permission to appeal on this ground. It is not, in my view, the proper subject of a second appeal. It is certainly, in my view, inappropriate to ask this court to give general guidance as to the weight to be given to evidence, in particular in cases of this kind.

That leaves the second and third grounds of appeal. The second ground of appeal is that the judge was wrong to hold that regulation 6(2) did not apply. The judge himself, as I have indicated, was unsure about this. It could be expressed more broadly, and no doubt intrinsically is, that it was not fair to make the second review decision so quickly and without giving the applicant an opportunity to make representations, which her solicitors and Mr Nicol say she was in fact preparing to do. It is suggested that those representations might have made a difference. There seems to me to be some force in this, and (if with a little hesitation) I would give permission on this ground, on the basis that it raises a point of sufficient importance of principle or practice.

The third ground of appeal is that, if the judge was wrong about regulation 6(2), the judge was also wrong to conclude that further representations would have made no difference. It said by way of submission that the correct test in circumstances such as these is the same as that applied in Ali v Newham LBC [2002] HLR 20, namely, that where a county court finds the decision was procedurally flawed, it should only confirm it if it can be properly said that the decision would inevitably have been the same had it not been so flawed; and where the possibility exists, however small, that a proper assessment of the circumstances may lead to a different decision, an opportunity must be provided to make such a decision.

I would give permission on this ground as being consequential on ground two and of some importance in its own right. Accordingly, in summary, I would given permission on grounds two and three, but refuse it on grounds one and four.

I agree.