London Borough of Richmond Upon Thames v Kubicek

This appeal raises an issue as to when, if ever, it is permissible for a county court hearing an appeal under section 204 of the Housing Act 1996 on “any point of law” arising from a review decision made by a local housing authority in a homelessness case to receive evidence on and decide a question of fact relevant to the review decision.

On 19 October 2009 the Respondent (“Mrs Kubicek”) made an application for housing assistance from the Appellant (“the Council”) under Part VII of the Housing Act 1996 (“the Act”). This followed an incident of domestic violence on 17 October 2009 when Mrs Kubicek had been assaulted by her husband and had left the matrimonial home. Mrs Kubicek and her two-year-old daughter were placed in interim accommodation.

On 11 July 2011 the Council decided that it did not owe a duty to provide accommodation for Mrs Kubicek as the Council was not satisfied that she was homeless. This was on the basis that it was reasonable for her to continue to occupy the matrimonial home. In reaching this decision the Council had to consider if it was probable that returning to the matrimonial home would lead to domestic violence against Mrs Kubicek. The decision-maker was “not convinced that there are any grounds to suspect that you are escaping domestic violence from [your husband]”. One of the matters leading to that conclusion was said to be that on two occasions when Mrs Kubicek had been called by an officer of the Council on her mobile phone (on 15 December 2009 and 13 December 2010), her phone had been answered by her husband.

Mrs Kubicek exercised her statutory right under section 202 of the Act to request a review of the Council’s decision. On 9 September 2011 her then legal representatives, Howes Direct LLP, made written submissions in support of the review. In relation to the alleged telephone calls, they pointed out that the calls did not appear to have been recorded on the housing file by the housing officer, Mrs Tyler, and that the date of the first call was when Mrs Kubicek was moving into temporary accommodation provided by the Council and there were several gentleman assisting her with the move who could have answered her telephone.

On 21 October 2011 the Council’s Head of Housing, Community Service Operations, Mr Emerson, notified Mrs Kubicek of the decision he was minded to make on the review. This was to the effect that, although Mrs Kubicek did suffer an incident of domestic violence on 17 October 2009, “the correct inference to draw from the evidence as a whole is that [she] has had significant regular contact with her husband since 19 October 2009, including visiting the matrimonial home and that she is not in reality afraid of him.” One of the matters relied upon was again the two telephone calls. The letter from Mr Emerson named the person who had made the telephone calls as Mrs Tyler and said that Mrs Tyler had confirmed that the person answering the phone had identified himself as Mr Kubicek, adding that it anyway seemed unlikely that another male assisting Mrs Kubicek with her move would have answered her mobile phone and pointing out that no explanation had been given by Mrs Kubicek for the second telephone call.

In response to this “minded to” decision, Howes made further submissions on behalf of Mrs Kubicek by a letter dated 27 October 2011. In relation to the alleged telephone calls they said that Mrs Kubicek denied having received any telephone calls from the Council and that:

“Our client’s only explanation as stated in the previous representations is that a removal man answered our client’s telephone on her behalf as the alleged date of the call was the date our client was moving out of her property.”

On 23 January 2012 Mr Emerson issued the Council’s final decision on the review. This upheld the original decision, concluding that it would be reasonable for Mrs Kubicek to continue to occupy the matrimonial home. The review decision again relied on Mrs Tyler’s account of the two telephone calls and commented that “Mr Kubicek answering these calls when coupled with your client’s false explanation are strong evidence of a close ongoing relationship about which your client has not been honest.”

On 16 February 2012 Mrs Kubicek appealed to the Kingston upon Thames County Court against the review decision under section 204 of the Act. Directions for the appeal were given and skeleton arguments served. The hearing of the appeal was fixed for 16-17 May 2012.

On 11 May 2012 notice was given of an application to adduce a witness statement from Mrs Kubicek dated 9 May 2012. In this witness statement (at paragraph 13) Mrs Kubicek denied that the two telephone calls allegedly made by Mrs Tyler had taken place and asserted that: (1) approximately one month after receiving the review decision, she had spoken to Mrs Tyler who had admitted that she did not in fact make the two telephone calls; (2) Mrs Tyler had also informed Mrs Kubicek that she did not tell the Council officer who made the original decision dated 11 July 2011 about these two alleged telephone calls; (3) it was impossible for Mrs Tyler to have contacted Mrs Kubicek on her mobile telephone, as she had at the time recently changed her mobile number and had not provided it to Mrs Tyler; and (4) it was impossible for Mrs Tyler to have spoken to Mr Kubicek, as at the time he was in the Czech Republic.

At the hearing on 16 May 2012, following submissions, Her Honour Judge Jakens made an Order that the witness statement of Mrs Kubicek dated 9 May 2012 be admitted in evidence and directing that there be a trial of a preliminary issue as to whether the two telephone calls of 15 December 2009 and 13 December 2010 were made as recorded in the review decision letter dated 23 January 2012. In giving her reasons for making this Order, the judge held that the court has power on an appeal under section 204 in exceptional circumstances to admit oral evidence and decide a question of fact relevant to the decision which is the subject of the appeal. The judge further held that such exceptional circumstances existed as “the factual issue here is fundamental and pivotal”. This, in her view, was sufficient to allow the court to “step outside the confines of the review process under the norms of administrative law in this particular case”. The judge also said that “it would be wrong to proceed to decide the appeal where such a fundamental point, … [if] left undetermined, might lead to an unfair disposal at the end of the day of the appeal,” and that “in these circumstances the court is entitled to step outside the framework in the interests of the administration of justice.”

The judge gave the Council permission to appeal against her Order. Pursuant to article 3 of the Access to Justice Act 1999 (Destination of Appeals) Order 2000 this appeal lies to the High Court.

Section 204 of the Act provides for an appeal to the county court from a review decision “on any point of law arising from the decision.” It is established that an appeal “on any point of law” is in substance the same as a judicial review: see e.g. Nipa Begum v TowerHamlets LBC[2000] 1 WLR 306 at 313E-F, CA; Begum (Runa) v TowerHamlets LBC [2003] UKHL 5; [2003] 2 AC 430 at [7], HL.

On behalf of the Council, Mr Hutchings submitted that the judge misdirected herself in considering that it was open to the county court to step outside normal judicial review principles in an appeal under section 204. On such an appeal, he submitted, as in judicial review, it is the duty of the court to leave decisions of fact to the public body to whom Parliament has entrusted the decision-making power, in this case the local authority, save in certain limited circumstances none of which applies here. There were thus no proper grounds for admitting in evidence the witness statement of Mrs Kubicek, which was simply not relevant to any issue which the court had to decide. Furthermore, Mr Hutchings submitted, it would on any view be wrong for the county court to conduct a trial of facts, the existence or non-existence of which is a matter for the Council, and not the court, to determine under the statutory scheme of Part VII of the Act.

On behalf of Mrs Kubicek, Mr Lane submitted that the county court judge approached the matter in a lawful and proper fashion. Mr Lane submitted that it is arguable that the review decision was based on a material mistake of fact giving rise to unfairness, and that the new evidence is admissible in support of such a contention. In any event the judge was entitled to find that exceptional circumstances existed in this case and that it was within the court’s discretion to admit the new evidence and order the trial of a preliminary issue.

The appeal to this court thus raises the following issues:

It is common ground that under the statutory scheme of Part VII of the Act questions of fact are generally for the local housing authority making the review decision to determine. As Lord Brightman observed in Puhlhofer v Hillingdon LBC [1986] AC 484 at 518:

“The Act abounds with the formula when, or if the Housing Authority are satisfied as to this, or that, or have reason to believe this, or that.”

For that reason, the usual process on any appeal pursuant to section 204 is for the matter to be determined on the basis of submissions as to the rationality and propriety of the review decision in the light of the material before the reviewing officer at the time of the decision. Evidence which was not before the reviewing officer is not usually relevant.

The authorities cited to me, however, indicate that there are two purposes for which fresh evidence may be relevant on a section 204 appeal.

One such purpose is to show how the review decision was reached, including what material was before the reviewing officer and what procedure was followed. These matters may be relevant where, for example, it is alleged that there has been a failure to comply with the requirements of natural justice. An allegation that the decision-making process was tainted by misconduct on the part of someone involved in it would fall into this category. Where such an allegation is made, it is for the court to find the relevant facts, and evidence will be relevant and admissible to prove the misconduct or other alleged procedural impropriety.

The case of Butt v LB Hounslow [2011]EWCA Civ 1372, cited by Mr Lane, is an illustration of this principle. In that case the county court heard evidence to determine whether the reviewing officer had taken into account a particular letter and whether the council officer who took the original decision was improperly involved in the review. An application for permission to appeal on the ground that the judge had been wrong to hear evidence and make findings on these matters was refused by the Court of Appeal. In refusing the application, Lord Neuberger MR said at [6]:

“What the judge was considering was the review procedure itself. In my view, it would be little short of absurd if, when there were questions over the review procedure, the judge could not hear evidence as to what happened in the review procedure.”

In the present case, the evidence of Mrs Kubicek in her witness statement of 9 May 2012 could be taken to imply that there was misconduct by a Council officer. If it were true that, as Mrs Kubicek claims she was told by Mrs Tyler, Mrs Tyler did not in fact make the two telephone calls and did not tell Mrs Sharma, the Housing Options Officer who made the original decision, that she had done so, then an inference might be drawn that Mrs Sharma must have invented the evidence of the two telephone calls on which she placed reliance in the decision letter. However, that would be a very serious allegation to make as well as an inherently improbable one. The improbability is increased by the fact that the reviewing officer, Mr Emerson, in his letters dated 21 October 2011 and 23 January 2012 recorded that he had, before writing each letter, spoken to Mrs Tyler about the phone calls. So any conspiracy theory would also have to extend to him. Understandably, no such case of misconduct has been made on the section 204 appeal and this was not the basis on which the judge allowed Mrs Kubicek’s witness statement to be adduced and ordered a trial of a preliminary issue. No issue of procedural impropriety has been raised in this case. Evidence is therefore not relevant for such a purpose.

A second purpose for which it is now clear that evidence may be relevant is to demonstrate that the decision subject to appeal was based on a material error of fact giving rise to unfairness. Although not presently set out in the grounds of appeal to the county court, Mr Lane submitted that such an argument is available to Mrs Kubicek in this case and that her witness statement is relevant to it.

In the leading case of E and R v Home Secretary [2004] QB 1044, the Court of Appeal reviewed the authorities bearing on the question of whether, and if so when, a decision reached on an incorrect basis of fact can be challenged on an appeal limited to points of law. Carnwath LJ (who gave the judgment of the Court) concluded at [66]:

“In our view, the time has now come to accept that a mistake of fact giving rise to unfairness is a separate head of challenge in an appeal on a point of law, at least in those statutory contexts where the parties share an interest in co-operating to achieve the correct result. Asylum law is undoubtedly such an area. Without seeking to lay down a precise code, the ordinary requirements for a finding of unfairness are … First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been "established", in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not been have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the tribunal's reasoning.”

I make four observations about this important statement of principle.

The first is that in the way that this ground of review has been analysed by the Court of Appeal the purpose for which evidence is potentially relevant can be seen as an extension of the first purpose – that is, to show how the review decision was reached. In connection with this ground, evidence may be relevant to show not only what material was before the reviewing officer but also that evidence was available which was not placed before the reviewing officer and how that came about.

Second, although the Court of Appeal explained this ground of review as based on a principle of fairness, it is clear that the question whether there has been unfairness is not to be determined independently of the four requirements identified by the Court of Appeal; rather, the unfairness arises from the combination of factors which exist when those requirements are all met: see the analysis at [63]. The decision in E and R therefore provides no justification for the kind of ungrounded consideration of fairness in which the county court judge engaged in this case.

Third, although the Court of Appeal suggested that the principle may be limited to “those statutory contexts where the parties share an interest in co-operating to achieve the correct result”, it is difficult to think of any context in which it would not be said that a public authority exercising a statutory function has an interest in ensuring that its decision is made on an accurate factual basis. Certainly decisions about housing assistance must fall within the scope of the principle as much as the decisions about asylum and planning control to which Carnwath LJ referred at [64].

My fourth comment is that the second of the four requirements stated by Carnwath LJ is clearly of critical importance, but may possibly need some fine tuning. If, in order to decide that there has been a material mistake of fact, the court was entitled or required to resolve a factual dispute itself, then the court would be substituting its own finding of fact for that of the public body to which Parliament has given that task. Accordingly, to require that the fact has been "established" in the sense of being not merely objectively verifiable but uncontentious seems, with respect, to be essential if a workable distinction between errors of law and errors of fact is to be maintained. It is less obviously essential that, where the fact about which a mistake is said to have been made is the availability of evidence on a particular matter, the evidence and not just the fact of its availability must be uncontentious. It seems to me that a court would not necessarily be usurping the function of the fact-finding body if it were to require the body to reconsider a decision made without knowledge of credible, even if not uncontentious, evidence which, if the decision-maker had been aware of it, might have led to a different result. A requirement that the evidence must have been uncontentious might also be thought to defeat the point of the Court of Appeal’s indication that the availability of evidence on a particular matter may itself be a relevant fact; for if evidence of a particular fact is uncontentious then so presumably is the fact itself.

It is not necessary to explore this question further on this appeal, however, as it is clear on any view that the second requirement identified by the Court of Appeal is not satisfied in the present case. It cannot possibly be said that the “fact” for which Mrs Kubicek now contends – namely, that the two alleged telephone calls to her mobile phone were never made – is “established” in the sense of being uncontentious. On the contrary, it is highly contentious, being flatly contrary to all of the evidence before the reviewing officer. Nor can it be said that the reviewing officer was mistaken as to the availability of evidence from Mrs Kubicek on the matter, since at the time of the decision there was no evidence from Mrs Kubicek suggesting that the telephone calls had not taken place – her contention at that stage being that Mrs Tyler must have been mistaken about the identity of the person who answered her mobile telephone.

The third requirement identified by the Court of Appeal – that the appellant (or his advisers) must not been have been responsible for the mistake – is also not satisfied in this case. As mentioned earlier, reliance was placed on the two alleged telephone calls to Mrs Kubicek’s mobile phone in the Council’s original decision dated 11 July 2011, in the “minded” decision dated 21 October 2011 and in the final review decision dated 23 January 2012. If it was Mrs Kubicek’s contention that the two telephone calls were never made and that it was impossible for them to have been made for the reasons given at paragraph 13 of her witness statement, then she had ample opportunity to put evidence to that effect before the reviewing officer. No explanation was given in her witness statement (nor in the witness statement made by her solicitor in support of the application to adduce the new evidence) for the failure to do so. In these circumstances if the reviewing officer was mistaken in thinking that the two calls were made, it seems to me that responsibility must lie with Mrs Kubicek or her advisers.

There is therefore, in my view, no scope in this case for an argument based on mistake of fact giving rise to unfairness. I conclude that there is no issue or potential issue on the section 204 appeal to which the new evidence is, even arguably, relevant.

Since there is no issue to which the witness statement of Mrs Kubicek is relevant, it follows that the judge was wrong to give permission for this new evidence to be adduced on the section 204 appeal. No proper purpose can be served by admitting irrelevant evidence.

Even if the new evidence were relevant, it would not follow that it ought to be admitted. In E and R the Court of Appeal took the view that on an appeal on a point of law the admission of new evidence to show that a mistake of fact has occurred is subject to the principles in Ladd v Marshall [1954] 1 WLR 1489, albeit that the court may depart from those principles in exceptional circumstances where the interests of justice require. The Ladd v Marshall principles are, in summary: first, that the fresh evidence could not have been obtained with reasonable diligence for use at the trial; secondly, that, if given, it probably would have had an important influence on the result; and, thirdly, that it is apparently credible although not necessarily incontrovertible.

The logic of treating the Ladd v Marshallprinciples as applicable in this context is not obvious. It is not necessary to satisfy those principles in order to be allowed to adduce evidence to show what material was before the decision-maker or to support a case that the procedure by which the decision was taken was contrary to natural justice or otherwise improper. It is not clear why the position should be different where the ground of challenge is that the decision was vitiated by unfairness resulting from a mistake of fact. As discussed above, in each case the purpose for which the evidence is relevant is to show how the decision was reached, which was not an issue at the time of the decision. Furthermore, the Ladd v Marshallprinciples cover matters which are already built into the requirements identified by the Court of Appeal as necessary for a finding of unfairness resulting from a mistake of fact. In particular, the first Ladd v Marshallprinciple serves to exclude evidence which could and should have been adduced before the decision was made. However, as Carnwath LJ noted at [69], this inevitably overlaps with the question of unfairness. An appellant who could and should reasonably have adduced evidence before the decision was made would seem bound to fall foul of the requirement that the appellant (or his advisers) must not have been responsible for the mistake. In addition, the second Ladd v Marshallprinciple is similar to the fourth requirement stated by the Court of Appeal; and the third principle corresponds to the second requirement, although it imposes a weaker test. It is not clear that it is necessary, or desirable, to apply two substantially overlapping though not identical sets of criteria in order to decide whether evidence is to be admitted on an appeal. It is also hard to see that anything is gained by applying a test over and above that of relevance unless the additional test operates as a further filter which excludes some relevant evidence. However, it is not apparent that there are any circumstances in which new evidence capable of satisfying the requirements for a finding of unfairness resulting from a mistake of fact would be excluded by the Ladd v Marshallprinciples.

Nevertheless, the Court of Appeal in E and R expressly held that, even where new evidence is relevant, it is necessary to consider as a separate question whether the evidence should be admitted and to apply the Ladd v Marshallprinciples for this purpose (subject to a discretion to depart from them in exceptional circumstances). In the present case the judge did not consider the Ladd v Marshallprinciples in deciding whether to admit the evidence of Mrs Kubicek. If therefore (contrary to my view) the new evidence was relevant, the judge did not approach the question whether to admit the evidence on what the Court of Appeal has held is the correct legal basis.

The new evidence clearly failed the first of the Ladd v Marshall tests, as there was nothing to suggest that it could not with reasonable diligence have been obtained before the review decision was made. The very late stage at which the witness statement was put forward and the fact that it directly contradicts what was previously said by Mrs Kubicek about the telephone calls also casts serious doubt on its credibility. For that reason and because it is directly contradicted by what Mrs Tyler on more than one occasion told the reviewing officer, it is very doubtful that the new evidence, if given before the review decision was made, would have had an important influence on the result of the review. Applying the Ladd v Marshall principles, therefore, I cannot see that it would be justifiable to admit the new evidence on the section 204 appeal.

Nor can I see that there were any exceptional circumstances which could justify admitting the new evidence in the interests of the administration of justice. The only circumstance identified by the judge as making this case exceptional is that the factual issue raised by Mrs Kubicek is “fundamental” to the decision taken by the Council. But the fact that an issue is fundamental to a decision taken by a public body cannot by itself justify the court in admitting evidence on that issue, let alone in deciding the issue itself.

The judge appears to have thought that the approach which she thought it right to adopt is consistent with Bubb v Wandsworth LBC, [2011] EWCA Civ 1285, [2012] PTSR 1011. Nothing in that case, however, can properly be interpreted as justifying a county court in admitting evidence on a section 204 appeal with a view to making findings of fact on an issue within the province of the local housing authority. It should be noted that in Bubb the Court of Appeal concluded that there were “no conceivable grounds for contending that live evidence and cross-examination on [the factual issue which was the subject of that case] should have been received by the judge”. In my judgment, the same is true in the present case.

Given my conclusions that the evidence of Mrs Kubicek asserting that the two telephone calls were not in fact made was irrelevant to any issue or potential issue in the appeal and should not have been admitted, it follows that the judge was also wrong to direct that there should be a trial of a preliminary issue to decide whether the evidence was true. Moreover, even if the evidence had been relevant and admissible, it could not be right for the court to decide that issue. There is no discretion, as the judge appears to have thought, to “step outside” the norms of administrative law where the court considers that it is necessary to do so for the fair disposal of the proceedings. What is fair in this context is to be determined by applying established legal principles, and not by disregarding them.

It is not only the established principles of administrative law with which the judge’s order is inconsistent; it is also inconsistent with what Parliament has enacted. Under Part VII of the Housing Act responsibility for ascertaining the facts relevant to whether an applicant is homeless is vested in the local housing authority. As the Court of Appeal made clear in Bubb at [20], 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.

For these reasons, the Council’s appeal is allowed and the Order dated 16 May 2012 must be set aside.