Bubb v London Borough of Wandsworth

This is a second appeal which raises one general point and one fact-specific point in relation to a decision of a County Court judge on an appeal brought under section 204 of the Housing Act 1996 as amended (“the 1996 Act”). All references to sections in this judgment are to sections in Part 7 of the 1996 Act, which is concerned with the duties of local housing authorities to provided housing assistance to homeless people.

The appellant, Cassandra Bubb (“Ms Bubb”), and her son became homeless in early 2008 as a result of domestic violence. On 20 March 2008, she applied to the housing department of the London Borough of Wandsworth (“Wandsworth”) for housing assistance. After initially rejecting her application, Wandsworth accepted it on 10 September 2008, determining her to be homeless, eligible, in priority need, and not intentionally homeless (as defined in sections 175, 185, 189 and 191 respectively). As a result, Wandsworth came under a duty to provide her with accommodation – see section 192(2) and (3).

This duty was satisfied for the time being by Wandsworth providing Ms Bubb with temporary accommodation, most recently at 26 Clarkson House, Maysoule Road, London SW11 (“Clarkson House”). Importantly for present purposes, she moved to Clarkson House from her previous temporary accommodation at 25 Edwin Trayfoot Lodge London SW11 (“Trayfoot Lodge”) on 16 March 2009.

Wandsworth’s case is that on 11 August 2009, a letter (“the 11 August letter”) was sent to Clarkson House, offering Ms Bubb more permanent accommodation at 13 Alfreda Court, Alfreda Street, London SW11 (“Alfreda Court”). Ms Bubb, however, maintains that she never received the letter. She relies, inter alia, on the fact that a previous letter (“the 5 August letter”), in virtually identical terms, had been sent a week earlier addressed to her at Trayfoot Lodge. It is common ground that she did not receive that earlier letter as she no longer lived there.

The 11 August letter was headed “Final Offer of Accommodation”. It stated that the “[t]he offer [of accommodation at Alfreda Court] will be withdrawn” if Ms Bubb did not contact a specified telephone number of Wandsworth’s “Eastern Area Team” by 14 August to enable her to make arrangements to view the property. The letter also set out the weekly outgoings (including rent) on Alfreda Court, and emphasised that “[t]his is a final offer for the purposes of section 193(7) …”. It further informed Ms Bubb that, if she thought that Alfreda Court was unsuitable, or wished to refuse it, she had the right to seek a review within 21 days of the offer.

Thereafter, it is clear that there were telephone discussions between Wandsworth representatives, in particular a Building Maintenance Inspector (“BMI”), Mr Phelps-Gardiner, and Ms Bubb, which resulted in Ms Bubb viewing Alfreda Court on 25 August. Although it appears that Ms Bubb expressed satisfaction with Alfreda Court when she visited it, she eventually refused it at a meeting with Julia Sanders, a Housing Registration Officer, on 2 September 2009.

There were then some subsequent communications, after which Wandsworth informed Ms Bubb on 23 September 2009 that its duty to her under Part 7 of the 1996 Act had been discharged, in the light of section 193(7). Almost all of the subsequent correspondence, including Wandsworth’s letter that it was relying on section 193(7), were sent to Ms Bubb at Trayfoot Lodge rather than Clarkson House.

Section 193 is concerned with a local housing authority’s duty to those applicants, such as Ms Bubb, who are not intentionally homeless. The primary duty is, according to subsection (2), to “secure that accommodation is available to the applicant.” Section 193(6) sets out various circumstances in which the duty ceases. Section 193(7) provides that:

Under section 202(1)(b), Ms Bubb had the right to “request a review” of “any decision of [Wandsworth] as to what duty (if any) is owed to [her] under sections 190 to 193 and 195 ...”, which therefore includes the decision that no further duty was owed under section 193(7). Ms Bubb exercised that right, and the “Procedures on a review” in section 203 (and the regulations made thereunder) were implemented. A reviewing officer, described as its “Reviews Manager”, Anthony Adelaja, was appointed by Wandsworth to review the case. He carried out an investigation, which resulted in an initial review, which was subsequently quashed, and he then issued a further review in a letter dated 15 March 2010 (“the Review”).

The Review is a full document running to sixteen fairly closely typed pages. It principally addresses two issues. The first, which is central to this appeal, is whether Ms Bubb received the 11 August letter. This is, of course, a vital matter, because, if she did not receive the letter, then the information required to be communicated by section 193(7) would not have been given to Ms Bubb, and Wandsworth would not be able to rely on that provision to contend that its duty to her under Part 7 of the 1996 Act had ended. The second main issue which the Review addresses is whether Alfreda Court was indeed suitable accommodation for Ms Bubb, and whether she was justified in refusing it.

After very carefully and very fully reviewing all the evidence and arguments raised by Ms Bubb and Wandsworth, the Review concluded that she did receive the 11 August letter, and that Alfreda Court was suitable for Ms Bubb and that she was not justified in refusing it. That, of course, was a great disappointment to Ms Bubb, but it was not the end of the road, as section 204(1)(a) gives to an applicant who “is dissatisfied with the decision on a review” the right to “appeal to the county court on any point of law arising from the decision”. On such an appeal, section 204(3) gives the County Court the power to “make such an order confirming, quashing or varying the decision as it thinks fit.”

Ms Bubb’s appeal came before His Honour Judge Ellis in the Croydon County Court, and, in a judgment given on 23 July 2010, he dismissed her appeal. There were a number of different grounds of appeal, as the Judge explained in para 5 of his judgment. On most of the grounds, the Judge gave full reasons for dismissing them, but when it came to the one ground which still remains on foot, he was more terse. Having referred to the fact that the 5 August letter was sent to the wrong address and that the 11 August letter “fulfils all the requirements of section 193(7)”, the judge said this in para 26:

Ms Bubb applied for permission to appeal against Judge Ellis’s decision, and, although her application was refused on the papers, Sedley LJ granted her permission to appeal against the finding that she had received the 11 August letter as described by the Judge in the passage I have just quoted. To put the point more accurately, Sedley LJ gave permission to appeal against the Judge’s refusal to quash the finding in the Review that Ms Bubb had received the 11 August letter - and hence to appeal against his refusal to quash Mr Adelaja’s conclusion that Wandsworth could rely on section 193(7).

On behalf of Ms Bubb, the first contention of Mr Knafler QC is that the County Court Judge should have determined for himself the relevant facts relating to the issue of whether or not she had received the 11 August letter (and he suggests that in any event the Judge should have received oral evidence). His second contention is that, even if the Judge should have approached the issue on a classic judicial review basis, he was wrong to conclude as he did.

The argument that the Judge should have determined the issue of whether or not the 11 August letter was received by Ms Bubb is primarily advanced on the ground that the issue raises, both conceptually and under the 1996 Act, not an assessment involving a value judgment for Wandsworth, but a question of hard fact to be determined by the court for itself. The primary basis for this argument is the decision of the Supreme Court in R(A) v Croydon London Borough Council [2009] UKSC 8, [2009] 1 WLR 2557, where the question concerned the determination of the age of an applicant (because it was necessary to decide whether he was a child) under section 20 of the Children Act 1989 (“the 1980 Act”).

It is not intended in any way to detract from the ambit of the reasoning or conclusion in R(A) v Croydon [2009] 1 WLR 2557 (which anyway is binding on this court) when I say that the judgments in that case are of no assistance when considering the point at issue in this case. I need only refer to the leading judgment of Lady Hale, with whom all the other members of the Supreme Court agreed.

At [2009] 1 WLR 2557, paras 26 and 27, she drew a distinction between “a number of different value judgments” contained in the 1989 Act and “a different kind of question [to which there] is a right or a wrong answer”. She went on to explain that the issue raised by section 20 of the 1989 Act, which required the determination of an applicant’s age (which fell into the latter category) to be determined by the court, whereas other issues (which were in the former category) were to be determined by the local authority – see [2009] 1 WLR 2557, para 28.

It is clear that the decision in that case was reached “on the wording of the 1989 Act” and not on any other basis, as Lady Hale said in terms at [2009] 1 WLR 2557, para 29. Indeed, it would be rather surprising if it were otherwise: one would expect the allocation of functions in connection with the performance of a statutory duty to be determined by reference to what the statute in question provides.

It is true that, under Part 7 of the 1996 Act, a number of questions which fall to be considered can be said to involve value judgments which are expressly assigned to the local authority (e.g. whether an applicant is homeless under section 184, whether an applicant has priority need under section 188), whereas the question whether an applicant received notification which satisfies section 193(7) can be said to be a “true or false” issue whose determination is not expressly assigned to the authority. However, even this division of issues into two types is not as clear-cut as it might first appear. The former type of question may involve the determination of hard facts (e.g. whether an allegedly homeless applicant’s former home has or has not been been relet), and the latter question may involve a value judgment (e.g. whether the applicant is an honest person with a clear recollection).

However, the essential points for present purposes are that:

The cesser of an authority’s duty under section 193 pursuant to section 193(7) depends, inter alia, on the applicant having been sent appropriate notice as therein described;

Where the applicant disputes the authority’s contention that the duty has ceased under the section, she must refer the issue for review under section 202(1)(b);

So where, as here, the applicant says the duty has not ceased because she was not sent the appropriate notice, the review must consider and determine that issue;

Any appeal to the County Court against the reviewer’s decision on the issue is limited to a point of law – see section 204(1);

Accordingly, there is no jurisdiction under the statutory scheme for the County Court to set itself up as a finder of the relevant primary facts for itself.

This analysis appears to me to be entirely consistent with the notion that the exercise carried out by the County Court under section 204 is “in substance the same as that of the High Court in judicial review”, as it was described by Lord Bingham of Cornhill in Runa Begum v Tower Hamlets London Borough Council [2003] UKHL 5, [2003] 2 AC 430, para 7. Accordingly, as he went on to say, a review decision may be quashed

I would therefore reject Mr Knafler’s primary argument in support of his contention that the county court judge should have considered for himself the question whether the 11 August letter had been received by Ms Bubb, rather than simply asking himself whether the Review’s finding that she had received it should be quashed on one or more of the grounds identified by Lord Bingham. This conclusion, I should note, also seems consistent with what Lord Hope said in Ali v Birmingham City Council [2010] UKSC 8, [2010] 2 AC 39, paras 53-4, although it is fair to say that he was not considering the precise point raised on this appeal by Mr Knafler.

Mr Knafler alternatively submitted that, even if (as I have concluded) the exercise carried out by Judge Ellis was effectively a judicial review, that would not, as a matter of principle, preclude him from hearing evidence, and, in this case, such a course would have been appropriate.

I accept that it is, as a matter of principle, open to a judge, hearing a judicial review application, to permit one or more parties to adduce oral evidence. That was made clear by Lord Diplock in his speech in O’Reilly v Mackman [1983] 2 AC 237, 282H-283A. However, for reasons of both principle and practice, such a course should only be taken in the most exceptional case. As its name suggests, judicial review involves a judge reviewing a decision, not making it; if the judge receives evidence so as to make fresh findings of fact for himself, he is likely to make his own decision rather than to review the original decision. Also, if judges regularly allow witnesses and cross-examination in judicial review cases, the court time and legal costs involved in such cases will spiral.

In the overwhelming majority of judicial review cases, even where the issue is whether a finding of fact should be quashed on one or more of the grounds identified by Lord Bingham, there should be no question of live witnesses. Even the provision of further documentary evidence which was not before the original decision-maker must often be questionable. However, particularly given the nature of hearings under section 204, the wide terms of section 204(3), and the good sense and experience of the County Court Judges, nothing in these observations is intended to cut down the flexible and practical approach to section 204 appeals adopted by the County Court (let alone the practices of the Administrative Court).

In the present case, there was no conceivable ground for contending that live evidence and cross-examination on the issue of the sending or receipt of the 11 August letter should have been received by the Judge. The Review was very full indeed so far as the detail into which it went in describing the relevant evidence and arguments, and this is not even one of those more difficult cases where the applicant is contending that relevant evidence has come to light since the Review was concluded.

I turn then to the second, and more fact-specific, ground advanced in support of Ms Bubb’s appeal, namely the more orthodox contention that the Review’s decision that she received the 11 August letter should have been quashed by the Judge in the light of the evidence before Mr Adelaja.

There was some argument before us as to whether the Judge’s very brief discussion of the issue was so short and unreasoned as to justify the appeal succeeding without more. I do not consider that that would be a good reason for allowing this appeal. If this court overturns a full and careful judgment in a judicial review case, because, on one of many points he had to resolve, the Judge merely said that the primary fact-finder was entitled to find a disputed fact in the way that he did, it would send out a most unfortunate message. There is currently much concern about the increasing length of judgments. This is a problem caused by a number of factors, but a significant factor is a worry on the part of the judgment-giver that he may be criticised on appeal for not dealing, often in some detail, with every point that has been raised.

It is, of course, a fundamental principle of the common law, that litigants, and any appellate court, know why a judge reached the conclusions that he did. However, at least in the great majority of cases, the Judge’s reasons need not be expressed in any more detail than that fundamental principle requires. Where, as here, the judge concludes that a clear conclusion by the primary fact-finder (who has set out all the facts and arguments in considerable detail) was one which was properly reached for the reasons given by the fact-finder, I find it hard to accept, at least in the absence of special facts, why the judge should not be able to say so, without having to repeat the facts and arguments in his judgment.

Having said that, I accept that, if, as in this case, the judge sets out no independent reasoning of his own, there is a greater likelihood of an appellate court giving permission to appeal, especially if the applicant is able to cast real doubt on the reasoning or conclusion of the original fact-finder. Having read the full judgment giving permission to appeal, I strongly suspect that the complete absence of any independent reasoning on the part of the Judge on the point at issue was a significant and understandable factor in Sedley LJ’s thinking. I intend no criticism of the Judge in this connection, but, with hindsight, it would have been better if he given a little more reasoning on this point in his judgment.

As Mr Arden QC, who appears for Wandsworth, says, once permission to appeal is granted in a case such as this, the Court of Appeal’s function is normally to review the original section 202 decision rather than the judge’s section 204 decision - see Royal Borough of Kensington & Chelsea v Danesh [2006] EWCA Civ 1404, [2007] 1 WLR 69, para 30 (the Supreme Court’s overruling of the substance of the decision does not impinge on this point). Accordingly, as Mr Knafler also sensibly accepts, the appropriate course for us to take in order to determine this appeal as expeditiously and fairly as possible is to decide for ourselves whether Mr Adelaja’s decision that Ms Bubb received the 11 August letter can stand.

This court is therefore adopting a reviewing function, and asking itself the sort of questions which were identified by Lord Bingham in Runa Begum[2003] 2 AC 430, para 7, namely whether “there [was] no evidence to support factual findings made or they [were] plainly untenable or [whether] the decision-maker is shown to have misunderstood or been ignorant of an established and relevant fact.” The Judge said at para 4 of his judgment that Mr Adelaja, who conducted the section 202 review, was “the arbiter of fact”, and the “weight to be given to the evidence ... is for him alone”. The latter statement may a little hyperbolic, in that the court on a section 204 appeal can (and in an appropriate case, should) review, and even reverse, any finding of fact. However, the section 202 reviewer, rather than the court under section 204, is the primary fact-finder, in very much the same way as a trial judge, rather than an appellate court, is the primary fact-finder in ordinary court proceedings.

Having said that, I would accept Mr Knafler’s point that, when considering an issue in a judicial review type of case, the court adopts what Laws LJ has described as “a sliding scale of review, more or less intrusive according to the nature and gravity of what is at stake” – R v Secretary of State for Education and Employment ex p Begbie [2000] 1 WLR 1115, 1130B-C. Bearing in mind the one-off nature of the issue from the perspective of Wandsworth and the potentially very serious consequences for Ms Bubb, I would accept that a reviewing court under section 204 should look with some care at a finding of fact against the applicant on a hotly disputed issue, where the applicant clearly had a respectable argument and the finding was fatal to her right to be housed.

I turn then to consider whether Mr Adelaja’s finding that Ms Bubb received the 11 August letter can stand.

The essence of the case advanced by Mr Knafler on behalf of Ms Bubb is as follows. First, Ms Bubb denies, and denied to Wandsworth and to Mr Adelaja, that she had received the 11 August letter, and there are no extraneous reasons to doubt her word. Secondly, letters in connection with her Part 7 rights from Wandsworth to Ms Bubb both before and after the 11 August were sent to Trayfoot Lodge, where it is common ground that she would not have received them. Thirdly, it is clear that Trayfoot Lodge was the address which was recorded for Ms Bubb at all material times in Wandsworth’s records. Fourthly, although Wandsworth’s case is and was that they realised their mistake in sending the 5 August letter to Trayfoot Lodge, and therefore retyped the letter with appropriate amendments (changing dates and inserting Ms Bubb’s correct address) and hand-delivered it to Clarkson House on 11 August, the evidence on that point was too unreliable for a reasonable reviewer under section 202 to have accepted it.

In connection with the fourth point, Mr Knafler relies not only on his first three points, but on the following more specific points. First, although there was evidence that the 11 August letter had been typed (no doubt by altering the relevant details of the 5 August letter on the word-processor), there was no oral or contemporaneous documentary evidence that it had been put into a correctly addressed envelope, that it had been given to a specific person to deliver, or that it had been delivered to Clarkson House by a specific person. Secondly, none of Wandsworth’s subsequent (misdirected) correspondence makes reference to the 11 August letter; indeed, the letter of 29 September, in which Wandsworth stated that it had no further duty to Ms Bubb under Part 7 of the 1996 Act by virtue of section 193(7), makes reference to the 5 August letter.

So summarised, the case for Ms Bubb not having received the 11 August letter looks strong, and it understandably impressed Sedley LJ sufficiently to persuade him to grant permission to appeal. However, it is obviously of cardinal importance to look closely at Mr Adelaja’s reasoning for rejecting the case, given his role as the primary fact-finder.

He accepted that the 11 August letter had been typed on 11 August 2009, in the light of the computer records, about which Mr Adelaja was careful enough to consult Wandsworth’s “IT experts”. He also accepted the evidence of Seonald Dacoury, an administrative assistant, who said that it was she who had “spotted the discrepancy in the address”. He had “no doubt” that it was then delivered to Clarkson House “by our estate patrol team” on the same day or early the next day. Mr Adelaja also accepted (as is common ground) that there was “telephone contact” between Ms Bubb and Mr Phelps-Gardiner on or about 14 August, following which she agreed to inspect Alfreda Court on 25 August. He then set out (in much greater detail than I have done) the subsequent history.

Mr Adelaja clearly made detailed enquiries: this is clear from a series of questions he put to Ms Sanders (whose answers are recorded in the Review), the “IT experts” he took the trouble to consult, and the other relevant people he clearly interviewed. With his experience at Wandsworth and his knowledge of the procedures, he was also in a good position to assess the likelihood of certain alleged facts, such as whether a letter which had been re-typed because the writer was aware that a wrong address had been used would have been likely to have been served by hand, or whether Wandsworth would have been likely to have initiated telephone contact with an applicant for accommodation who had been made a written offer.

In the course of the Review, Mr Adelaja specifically referred to a number of points, which he took into account to support his conclusion that Ms Bubb had received the 11 August letter. I shall set them out in the order in which they appear in the Review.

First, despite “numerous opportunities” to do so, Ms Bubb did not suggest that she had not received a letter offering her Alfreda Court. Secondly, when refusing the offer on 2 September, Ms Bubb, according to Ms Sanders, would have had to know details of the offer (which were contained in the 11 August letter), and would have been told by Ms Sanders about the risks of refusing the offer. Thirdly, in their first full letter to Wandsworth, on 10 December 2009, Ms Bubb’s solicitors made no suggestion that she had not received a letter containing the information required by section 193(7), even though they made reference to non-receipt of another letter. Fourthly, it was “normal practice that [Wandsworth] relies on applicants to contact [the housing department] to book an appointment”, and, based on the evidence and on his experience, Mr Adelaja did not accept her evidence that someone from Wandsworth had initiated telephone contact with Ms Bubb about Alfreda Court: hence she must have received the 11 August letter as otherwise she would not have known about visiting Alfreda Court. Fifthly, and connected with this, it is unclear how Wandsworth would have initiated contact with Ms Bubb, as they would not normally have had a contact number for her unless she had rung up with it. Sixthly, Ms Bubb had initially denied refixing the date for her inspection of Alfreda Court, but then accepted that had happened, and she also said that she did not recall how the appointment to view was made, thereby showing that her recollection was not necessarily reliable.

Additionally, in the Review, Mr Adelaja mentioned two points, which might be said to be defensive of his conclusion. First, the fact that Ms Sanders warned her orally of the risk of refusing Alfreda Court renders it much less unlikely that she would have refused it after being told of the risk in the 11 August letter. Secondly, Mr Adelaja explained that Wandsworth kept two sets of electronic records, and different people were involved with Ms Bubb’s case at different times; as a result there was, in his view, no significance for present purposes in the fact that, after 11 August, letters to Ms Bubb were still sent to Trayfoot Lodge.

I bear in mind the points made by Mr Knafler as set out in paras 35 and 36 above, the relatively high degree of scrutiny which the court should apply to the Review decision in this case, and the inevitable sympathy anyone must feel for Ms Bubb and her son. However, in the light of his careful investigation and the reasons which he gave (as summarised in paras 38-42 above), I have reached the conclusion that Mr Adelaja’s decision that Ms Bubb received the 11 August letter cannot be impugned. To revert to Lord Bingham’s test, it cannot be suggested that “there [was] no evidence to support” Mr Adelaja’s conclusion, or that the conclusion was “plainly untenable”, or that he “misunderstood or [was] ignorant of an established and relevant fact”.

For my part, therefore, I would dismiss this appeal.

I agree with both judgments.

I also agree that this appeal should be dismissed, for the reasons given by the Master of the Rolls. I venture to add only a few words of my own.

I am unable to accept the submissions that the Judge should himself have determined the factual issue, alternatively that he should have heard oral evidence. The jurisdiction of the County Court under s.204(1) of the 1996 Act is confined to an appeal on “any point of law”, a jurisdiction “in substance the same” as that of the High Court in judicial review: per Lord Bingham, in Runa Begum (supra) at [7]. On the facts of the present case, there was, as the Master of the Rolls has observed, no conceivable ground for the Judge entertaining oral evidence and cross-examination.

I respectfully join with the Master of the Rolls in rejecting the contention that the appeal should be allowed by reason of the brevity of and suggested lack of reasoning in, the relevant passage in the Judge’s judgment. While a Judge must of course give a reasoned basis for his conclusions, defensive judgment writing, with a view to rendering the judgment “appeal proof”, is to be avoided.

For my part, I am not persuaded that Mr. Adelaja’s finding – that Ms Bubb received the 11August letter – can be successfully impugned.

Fraud is not and could not be alleged as to the dating of the 11 August letter. It follows that the letter was written on that date.

The only reason for writing the 11 August letter was the realisation by the Respondent that the 5 August letter had been wrongly addressed.

On that footing, it is difficult to see why Mr. Adelaja’s finding should be “plainly untenable”: Runa Begum, at [7]. It would involve care being taken to produce the 11 August letter but, thereafter, a failure to ensure its delivery. Though of course possible that would nonetheless be a surprising outcome.

Moreover, I cannot see that there is a proper basis for disregarding Mr. Adelaja’s conclusion that subsequent contact between Ms Bubb and the Respondent was unlikely to have been initiated by the Respondent in that the Respondent had no system for its employees to do so. If, however, it was Ms Bubb who initiated the contact leading to her viewing Alfreda Court, then it must be because the 11 August letter had been delivered.

I readily accept that there were materials and arguments supporting Ms Bubb’s case, in particular those going to disturbing inefficiency on the part of the Respondent. It was for Mr. Adelaja to weigh those arguments; it is plain that he did so and I am not persuaded that this Court should intervene.

I am of course sympathetic to the position in which Ms Bubb and her son find themselves. But it is also necessary to keep in mind the burden faced by local authorities in dealing with problems of this nature, together with the need (in the words of Lord Hope in Ali v Birmingham City Council, supra, at [55]) to avoid “….the emasculation by over-judicialisation of administrative welfare schemes…”. In my judgment, the present is not a case for this Court to stray into the territory of the reviewing officer.