Tachie & Ors v Welwyn Hatfield Borough Council

These three appeals are brought under section 204 of the Housing Act 1996 against the Respondent’s review decisions made under section 202. The appeals were originally in the Luton or Watford County Courts but by Order dated 27^th September 2012 they were transferred to this Court by HHJ Kay QC. The reason for the transfer was that a number of common issues arise out of the Respondent’s purported contracting out of its Part VII homelessness functions to the Welwyn Hatfield Community Housing Trust (“the WHCHT”) which is an “arms-length management organisation” (“ALMO”) established by the Respondent with effect from 1^st April 2010. The Appellant’s basic contention is that the Respondent’s contracting out was ultra vires its powers and that this Court should therefore quash the review decisions in each of the cases in the exercise of its powers on appeal under section 204. Before I set out the specific issues which arise from my determination on a generic basis, I need to set out some of the relevant history summarising what is contained in the written evidence and the parties’ skeleton arguments.

ALMOs are corporate vehicles introduced by Central Government in the first decade of this century as an option for local authorities who wished to retain ownership of their local housing stock to obtain additional funds to improve quality. More background detail is to be found in the ODPM’s Guidance on Arms Length Management of Local Authority Housing, 2004 edition, clauses 2.1, 2.4, 2.7, 3.1, 3.2, 3.3, 3.5, 3.6, 3.8 and 3.9. I will be returning to these in the context of Mr Vanhegan’s submission on discretionary decision making, but for present purposes it is sufficient to record that whereas ALMOs are characterised as having a significant degree of independence from their parent local authorities, they are 100% controlled by the latter and are usually constituted as companies limited by guarantee. Homelessness functions may be contracted out, in which circumstances the statutory responsibility remains with the local authority; but strategic decision-making may not be.

From 2003 onwards the Respondent undertook a detailed Options Appraisal to consider the future of its housing stock in the light of the Decent Homes Programme. This process involved resident consultation and majority support, and continued over a number of years. It led to a decision to set up the WHCHT. On 6^th June 2006 Cabinet resolved that the work of the Housing Options Working Group be noted and that the group be asked to report back to a future meeting of Cabinet on the merits of the options for the future management of the Respondent’s housing stock with recommendations for further action [5/116-7]. There was a further resolution of the Cabinet Housing Panel on 23^rd June 2008 [5/123], and on 9^th September 2008 the Respondent’s Chief Housing Officer reported to Cabinet recommending that the latter agree in principle to set up a tenant-led community housing trust [5/136]. Clause 5.4.2 of the same report provided additional detail and explained that the community housing trust would be a company limited by guarantee, wholly owned by the Respondent, “but with the power sitting with an independent tenant-led board (made up of 7 tenants, 5independent and 3 council nominee members)”. Furthermore, clause 5.4.3 provided [5/140]:

“The working group also considered the extent to which operational housing services including homelessness and housing advice should be included within any proposed trust. The group were of the view that there were significant benefits to continuing to provide these currently interlinked services within the trust, although based on a separate service level agreement”

In other words, instead of being located within the Council, the “department” discharging Part VII homelessness functions in the Respondent’s name would be within the new Trust.

On 6^th January 2009 Cabinet noted the high level of positive response from tenants, leaseholders and the wider community and agreed to continue to take forward the proposed community housing trust [5/147]. On 3^rd November 2009 the Respondent’s Director of Housing reported to Cabinet seeking approval for an application to be made to the Secretary of State for Communities and Local Government asking for consent to delegate housing functions to the proposed WHCHT under s. 27 of the Housing Act 1985 [5/149]. On 3^rd November 2009 Cabinet resolved to seek the Secretary of State’s approval under s. 27 for delegation of housing functions to the proposed WHCHT; it was also resolved that the terms of the draft management agreement between the Respondent and the WHCHT be agreed [5/152].

Following the resolution by Cabinet, which subsequent evidence demonstrates was unanimous, a formal application was submitted to the Secretary of State on 16^th November 2009 [5/154]. The report made clear that the proposal set out within the application and the supporting papers had been consulted on with tenants, leaseholders and staff of the Council, the Shadow Management Board, and a broad range of stakeholders. The approval documents also made clear that not merely would a series of housing management functions be delegated to the new Trust [5/158], so would all of the Respondent’s homelessness functions [5/159]. It is common ground, and in any event vouched by CoA authority as I will be coming to, that “homelessness functions” include all the Respondent’s powers and duties under Part VII of the Housing Act 1996. The draft management agreement dated 22^nd October 2009 [5/181a and following] also made that clear, and my attention has been drawn to clause 62.1 of this document [5/181ll] which stated that the agreement “shall expire on 31^st March 2020”. It is quite plain in my judgment that the Respondent was working towards a commencement date of 1^st April 2010.

By undated letter received on 18^th January 2010 the Secretary of State for Communities and Local Government gave his approval under s. 27 of the Housing Act 1985 to the Respondent entering into an agreement with the Trust under which the latter would exercise specified management functions as agent for the authority. The approval neither needed to, nor did, concern the contracting out under the Deregulation and Contracting Out Act 1994, but the latter could not occur without the former.

On 31^st March 2010, at a meeting of full Council attended by all 6 members of Cabinet, members considered a report from the Respondent’s Director of Housing dated 18^th March 2010 [5/183-184]. The report sought members’ agreement to specified changes to the proposed management agreement and their approval for the delegation of housing management functions to what was described as the newly formed WHCHT. This was to be in accordance with the approval obtained from the Secretary of State for Communities and Local Government. Clause 4.5 of the report provided:

“With regard to the delegation of aspects of homelessness, housing advice and Housing Needs Service, the Council’s legal advisors, Trowers and Hamlin, have been able to confirm that the proposed detail of delegation is fully compliant with the Local Authorities (Contracting Out of Allocations and Housing and Homelessness Function) Order 1996. As a result the council can be confident that it is able to meet its statutory duties in those respects under current legislation.”

By clause 5.1, it was proposed that the WHCHT would take responsibility for Housing Functions with effect from 1^st April 2010 for a period of 10 years.

Full Council duly made the recommended resolutions [5/193-195]. It also resolved to agree the management fee of £9,397,420 for 2010/11 to be payable to the Trust. On 1^st April 2010 the Respondent and the Trust entered into the Management Agreement in terms which fully reflected the antecedent reports and resolutions.

Clause 56 [4/42] of the Management Agreement dealt with employees. The list of staff within the Housing Needs division to be transferred to the Trust included all the employees who were later to make the impugned s. 202 (and s. 184) decisions [4/85]. The provisions of TUPE applied to these transfers.

Since 1^st April 2010 the WHCHT has been undertaking the Part VII Housing Act 1996 functions as specified in the service level agreement on the Respondent’s behalf. As it happens all of these functions have been physically undertaken by the Respondent’s transferred employees. As Mr Bhose QC has observed, numerous individuals have benefitted from the Respondent’s decision making over the years and, save for these three Appellants, no other recipient of an adverse decision has taken the point that the Respondent has been acting unlawfully.

In an attempt to rule out any possibility of a successful challenge to the 2010 decision making process, on 22^nd January 2013 full Council resolved [5/202]: (i) to approve an amendment to Article 11.4 of the Constitution, designed to remove any scope for any uncertainty as to its meaning; (ii) to ratify the entry into the Management Agreement “insofar as this may be required”; and (iii) to record that the “homelessness, housing advice and housing needs service functions, exercised by the Trust under the Agreement, are to be exercised for the period of that Agreement which is 10 years from 1^st April 2010”.

On 25^th November 2013, which was 1 days before this appeal hearing commenced, the Deputy Leader of the Council and Executive Member, Resources purported to make a decision under the Special Urgency Provisions as more fully explained later in this Judgment. The decision was to the effect that the Respondent’s entry into the Management Agreement with the Trust be ratified for all purposes as from 1^st April 2010 for a period of 10 years commencing on that date, and that the contracting out of the Part VII functions to the Trust pursuant to primary and secondary legislation also be ratified.

The following common issues arise on this s.204 appeal:

Section 204 of the Housing Act 1996 provides:

“(1)

If an Applicant who has requested a review under s. 202 –

(a)

is dissatisfied with the decision on the review, or

(b)

is not notified of the decision on the review within the time prescribed under s. 203,

he may appeal to the county court on any point of law arising from the decision or, as the case may be the original decision.”

In Nipa Begum v TowerHamlets LBC [2000] 1 WLR 306, the Court of Appeal held that an appeal under s.204 of the Housing Act 1996 was not limited to matters of legal interpretation but included issues akin to those which gave rise to judicial review, such as challenges to a Housing Authority’s decision on the ground of procedural error, illegality, irrationality or inadequacy of reasons. The dicta of Auld LJ at page 313E-G were expressly approved by the House of Lords in Runa Begum v TowerHamlets LBC [2003] 2 AC 430: see, in particular, the Opinion of Lord Bingham of Cornhill at paragraph 7 (page 439G-H).

Notwithstanding the apparent breadth of this appellate jurisdiction, Mr Bhose submits that the Appellants’ challenge to the contracting out process cannot raise “any point of law arising from” the review or original decision because there is a distinction between errors of law which might lead to such decisions, and errors which flow from them. Put another way, the errors in the instant case, if they exist, are antecedent rather than consequent.

I simply cannot accept the Respondent’s submissions on this issue. The point has not previously arisen for judicial determination but in broad terms it is quite clear both on principle and authority that the statutory appeal on a point of law in this class of case is designed to operate in exactly the same way as judicial review, and that any ultra vires issue (in the sense explained by the House of Lords in Anisminic) is therefore capable of being taken. I discern no merit in the argument that “arising from” should be read restrictively. Furthermore, had there been any merit in this somewhat arid and technical point I could always have reconstituted myself as an Administrative Court possessing the judicial review jurisdiction which Mr Bhose agrees is ample enough to encompass challenges of this nature. In my judgment, s. 204 is sufficiently broad to permit Mr Vanhegan to raise the various matters which he seeks to under the umbrella of the common issues, and I must therefore proceed to address the merits of his case.

The Appellant’s case is that the terms of Article 11.4 of the Respondent’s Constitution precluded the contracting out of Part VII homelessness functions to WHCHT, or at the very least precluded the contracting out of the more sensitive and open-textured decision making under sections 184 and 202.

I was informed in oral argument that the Constitution was first promulgated in 2002. The version in the trial bundle is dated January 2011. Article 11, entitled “Joint Arrangements”, was made under various provisions of the Local Government Act 2000 and the Local Authorities (Arrangements for the Discharge of Functions) (England) Regulations 2000. Article 11.4, as originally enacted, provided:

“The Council may contract out to another body or organisation non-executive functions provided that there is no delegation of the Council’s discretionary decision making. The Cabinet may contract out executive functions on the same basis.”

There is no evidence as to exactly why Article 11.4 is in these precise terms. My attention has been drawn to Article 11.05 of the “Modular Constitutions for English Local Authorities”, a document published by Central Government with “suggested” or advisory status only. It is not altogether clear whether the version contained in the trial bundle is that which was extant in 2002, but for present purposes I shall assume that it was. Article 11.05 provides:

“Councils may wish to make clear those functions to which this section currently or potentially applies.

These [Council under alternative arrangements and for functions which are not executive functions] [executive for executive functions] may contract out to another body or organisation functions which may be exercised by an officer and which are subject to an order under s. 70 of the Deregulation and Contracting Out Act 1994, or under contracting arrangements where the contractor acts as the council’s agent under usual contacting principles (sic), provided there is no delegation of the Council’s discretionary decision making.”

In order to complete the picture, it should be pointed out that on 22^nd January 2013 the Respondent approved the amendment to Article 11.4 of the Constitution so that it provided as follows:

“11.4

The Council may contract out to another body or organisation non-executive functions which may be exercised by an officer and which are subject to an Order under section 70 of the Deregulation and Contracting Out Act 1994, or under contracting arrangements where the contractor acts as the Council’s agent under usual contacting principles (sic), provided in the latter case that there is no delegation of the Council’s discretionary decision making. The Cabinet may contract out executive functions on the same basis.”

For the purposes of the second issue, I am not concerned about the respective powers of Council and Cabinet; the focus of attention is on the term “discretionary decision making”. This is not defined in the Constitution although it must clearly be borne in mind that this document is intended to cover the full panoply of the Respondent’s functions.

In order to place the Appellant’s case in its proper context, it is necessary to set out a number of provisions of primary and secondary legislation, and of relevant Guidance from Central Government.

The Appellant’s case is not that the foregoing provisions necessarily preclude the contracting out of relevant functions under Part VII, in particular the review function under section 202, but that the Respondent chose to constrain itself in this way by its deliberate use of the term “discretionary decision making”. Mr Vanhegan placed heavy reliance on high authority, including Runa Begum v TowerHamlets LBC [2003] 2 AC 430 (see, in particular, paragraphs 67, 68, 91 and 114-115) and Ali v Birmingham City Council [2010] 2 WLR 471 (see, in particular, paragraphs 22, 27, 53, 54, 73, 78 and 79). Mr Vanhegan relied on the frequent references in these decisions to the making of evaluative judgments, including judgments entailing “elements of discretion” (see paragraph 67 of the opinion of Lord Hoffmann in Runa Begum), and he submitted that such judgments should be read synonymously with the term “discretionary decision making”. As I have already observed, the Appellant’s principal submission is that the entirety of a local authority’s Part VII functions equate to “discretionary decision making”, even what Mr Vanhegan called the “robotic stuff”, namely the making of enquiries and the carrying out of investigations. Mr Vanhegan’s alternative submission was that sections 184 and 202 are paradigm examples of “discretionary decision making” and should be treated separately.

Mr Vanhegan also submitted that the Modular Constitution precluded discretionary decision making, and he made a series of textural submissions which depended in part on the location of the comma before the final clause in Article 11.5. I was not assisted by these submissions because it is clear that the Respondent did not in fact follow the Modular Constitution and Mr Vanhegan did not go so far as to submit that this advisory template was binding on the Respondent in any way.

In my judgment, it is necessary to construe the term “discretionary decision making” in the context of a constitutional provision clearly intended to have application across the whole range of the Respondent’s functions and responsibilities. “Discretionary decision making” is a term intended to capture the range of relatively high-level policy or strategic decisions which the Respondent would be wishing to retain for itself, for good and obvious reason. One may envisage a spectrum of decision making within a local authority which entails the highest level “political” decisions at the top end and Mr Vanhegan’s “robotic” decisions at the very bottom, with a significant grey area in between. Within this grey area one may well discern “elements of discretion”, but I would prefer to characterise these as evaluative judgments which entail an assessment and interpretation of the available material, and the drawing of inferential conclusions from the facts as found by the local authority. I cannot accept that decisions of this nature amount to “discretionary decision making” within the meaning of the exception to Article 11.4. I should not be understood as expressing a comprehensive view about everything which is or may be within the grey area; each statutory provision would need to be looked at on its own merits with the objective of determining on which side of the line it may fall. I am confining my observations to the type of decisions I have sought to identify.

Applying this approach to the context of homelessness, I agree with Mr Bhose that Part VII amounts to a tightly controlled statutory scheme, regulating the conditions as to entitlement of access to social welfare, which scheme the decision maker has to consider and apply to the facts of individual cases, and reach a decision according to law. The focus of this process is to establish the duties, if any, owed by the local authority to a particular applicant. Different reasonable local authorities may reach different decisions on the same evidence, but that does not convert the process into “discretionary decision making”. Evaluative, yes; but policy or strategic decision-making, no.

This approach is entirely consistent with the authorities bearing on Part VII of the Housing Act 1996. The case of Runa Begum is concerned with a different issue, namely compliance of the statutory scheme with Article 6 of the Convention, and the House of Lords’ reasoning clearly needs to be read and understood against that background. I place particular weight on paragraph 91 of Lord Millett’s Opinion in Runa Begum and paragraph 22 of Lord Hope’s Opinion in Ali. As was said in the latter case:

“in order to set the scene for an examination of these issues I must say a bit more about the statutory background. This is important, as the questions that arose for decision in this case must be seen in that context. They were, as I have said, pure questions of fact. But they were, in each case, only one of a number of questions that had to be addressed in order to decide whether the Defendant’s duty under s. 193 had come to an end. Their resolution was a stepping stone to a consideration of a much broader question as to whether the accommodation that had been declined was suitable. This called for the exercise of expertise and judgment on a variety of factual issues. The scheme of the statute is that a decision on all these questions is entrusted, in the event of a review, to the reviewing officer and is subject to appeal on a point of law only.”

I should add that this approach is also consistent with the Guidance to which I have referred under paragraph 23(4) and (5) above, in particular the references to the types of decision a local authority may not contract out.

Mr Bhose made two specific submissions on the language of Article 11.4 of the Constitution. First, he submitted that the first sentence of Article 11.4 draws a distinction between “functions” and “discretionary decision making”, and that the instant case is only concerned with the range of functions under Part VII of the Housing Act 1996. Secondly, Mr Bhose submitted that there has been no “delegation” in the context of the present case at all because contracting out cannot be so characterised. I cannot accept either of these submissions. In my judgment, “functions” is a broad term which as a matter of language is apt to accommodate “discretionary decision making”; the real issue is whether on any particular facts a case falls within the proviso. Nor do I see any merit in the point that the draftsperson of Article 11.4 has seen fit to draw a linguistic distinction between “delegation” and “contracting out”; the two terms should be regarded as synonymous, as becomes all the more apparent when consideration is given to the Respondent’s own internal documents. On the other hand, I do consider that there is merit in Mr Bhose’s submission that on Mr Vanhegan’s argument the vast majority of the Respondent’s functions could not be contracted out to a third party pursuant to the 1996 Order. I agree with Mr Bhose that that could not have been the purpose underpinning Article 11.4.

For all these reasons I reject the appellant’s case on the second issue.

The Respondent accepts that homelessness functions under Part VII of the Housing Act are “executive functions”: see section 13(2) and (10) of the Local Government Act 2000 (now sections 9D and 9DA of the Localism Act 2011), and the Local Authority (Functions and Responsibilities) (England) Regulations 2000 (2000 SI No 2853). The Respondent however complains that the Appellants have only very recently raised this point through Counsel’s skeleton argument filed out of time on 22^nd November 2013, although it does not go so far as to submit that the Appellant’s are precluded from raising this issue on this statutory appeal.

The Respondent’s answer operates in two ways. First, it contends that Cabinet’s resolution dated 3^rd November 2009 was in substance a resolution to contract out the Part VII homelessness functions to the WHCHT. Secondly, it submits that the decision was in any event properly taken by Council on 31^st March 2010 because it was “not in accordance with the budget”.

Mr Bhose’s first answer is ingenious but I simply cannot accept it. As I have already said, the Director of Housing’s report to Cabinet dated 8^th October 2009 recommended that Cabinet approve the detail of the draft section 27 application for submission to the Secretary of State, for approval to delegate housing functions to the proposed WHCHT; and the Cabinet’s resolution was exactly to that effect. Although it is right to point out that the Cabinet’s resolution was unanimous (as indeed were all relevant decisions made in this case), and that it was highly likely that approval by the Secretary of State would result in contracting out to the new entity, I consider that one does need to be more precise about the procedural steps taken. Approval by the Secretary of State would, or rather should – subject to Mr Bhose’s second point – have led to the matter being brought back before Cabinet where it was highly likely that the contracting out would have been authorised. I agree with Mr Bhose that favourable decisions would have been made, but I disagree with his attempt to gloss over the need for a further decision being taken by the correct entity. This was an essential step in the whole process, and the Respondent clearly thought so at the time otherwise it would have rested on the November 2009 resolution without seeking to table a further resolution at all. In short, there needed to be a resolution expressly approving the contracting out of these functions subsequent to and in accordance with the Secretary of State’s approval. The resolution by Cabinet dated 3^rd November 2009 was a necessary but insufficient step in the overall contracting out process.

As for Mr Bhose’s second answer, this requires a slightly closer look at the available material. Mr Bhose drew my attention to resolution 59 of full Council passed unanimously on 31^st March 2010. It states [5/195]:

“RESOLVED: that the management fee of £9,397,420.00 be agreed from within the overall approved housing revenue account, general fund and capital budget for 2010/11”

Mr Bhose submitted that under the Local Government Act 2000 and the Local Government Finance Act 1992 the responsibility for approving budgets is a matter for full Council, and that the budget for 2010/11 was approved on 4^th February 2010. The determination of any matter which is “contrary to, or not wholly in accordance with, the authority’s budget” is not a responsibility of the Respondent’s Executive: see Regulation 5 of and Schedule 4 to the Local Authorities (Functions and Responsibilities) (England) Regulations 2000. Consistently with these Regulations, and in line with Article 4 of the Respondent’s Constitution, decisions as to “the budget” are to be taken by the full Council. By similar reasoning, Cabinet may take decisions in line with the budget and policy framework (see [5/162], clause 3), and decisions which are out of line are to be taken by Council. Looking at the report of the Director of Finance and Operations which went before full Council on 31^st March 2010, Mr Bhose submits that although “the management fee and other budgets detailed in this report are included and fully reconciled to the approved Council budget for 2010/11” (see [5/181e], clause 2.1), this was not specifically earmarked for this purpose.

Mr Bhose sought to draw assistance from the recent decision of the Court of Appeal in R (on the Application of Buck) v Doncaster MBC [2013] EWCA Civ 1190, and submits finally that any failure by the Respondent to ensure that the correct entity made this decision does not invalidate the latter for section 204 purposes or at all.

I cannot accept any of these submissions. Indeed, I agree with Mr Vanhegan that there is a short and pithy answer to them. All the evidence points to the conclusion that the WHCHT management fee had been earmarked within the 2010/11 budget in anticipation of these arrangements being finalised before 1^st April 2010. Clause 2.1 of the Director of Finance and Operation’s report says as much. The case of Buck is of no relevance, and the Respondent’s failure to ensure that the correct entity made the resolution on 31^st March 2010 carries with it the consequence that, as Mr Vanhegan submits, the decision was ultra vires.

Mr Bhose sought to uphold the validity of the Council’s resolution of 31^st March 2010 on two separate bases. First, he contended – in line with the approach of Lord Steyn in R v Soneji [2006] 1 AC 340 (paragraph 23) - that Parliament could not fairly be taken to have intended total invalidity in this sort of situation. Secondly, he maintained that s.13(10) of the Local Government Act 2000, as in force at the material time, did not spell out the consequences of Council purporting to discharge executive functions. Mr Bhose relied on the fact that Cabinet was present at the meeting held on 31^st March 2010 and the resolution was passed unanimously. In my judgment, these two submissions stand and fall together because they are so closely interlinked on their merits. In my judgment, Mr Bhose’s points are relevant to the question of ratification (where, as I shall proceed to hold, he is on strong ground) and may also have been relevant to the issue of relief, had the point arisen for determination; but I fail to see how and why in the circumstances of this case non-compliance with clear statutory requirements carries with it the consequence that an ultra vires decision should be regarded as other than legally invalid. This is because the language of s.13(10) is in unequivocal terms and makes plain that executive functions may not be exercised by the Council.

It follows that I uphold the Appellant’s case on the third issue.

In the light of my conclusion on the third issue, it is unnecessary for me to address this issue in any detail. However, as I have pointed out to Mr Vanhegan somewhat firmly in oral argument, there is no merit in it. If Mr Bhose were able to rely on either the Cabinet resolution of 3rd November 2009 or the Council resolution of 31^st March 2010, he would clearly have satisfied me that the surrounding documents point ineluctably to the conclusion that the relevant authorisation was limited in time to a 10 year period.

The general rule is that decisions by public authorities to engage contractors are subject to the Public Contracts Regulations 2006 and the complex procurement regime laid down in those provisions. However, there is a well established exception to this rule known as this Teckal Exemption. In Teckal Srl v Comune di Viano (Case C-107/98), the ECJ held, at paragraph 50:

“In that regard, in accordance with Article 1(a) of Directive 93/36, it is, in principle, sufficient if the contract was concluded between, on the one hand, a local authority and, on the other hand, a person legally distinct from that local authority. The position can be otherwise only in the case where the local authority exercises over the person concerned a control which is similar to that which it exercises over its own departments and, at the same time, that person carries out the essential part of its activities with the controlling local authority or authorities”

Paragraph 50 contains what is known as the “control test” and the “functions test”. Although he asserted that neither was satisfied in the instant case, Mr Vanhegan devoted the entirety of his submissions to the control issue. Having regard to the Memorandum of Association of the WHCHT, I do not consider that it is arguable that the functions test is not satisfied.

Mr Vanhegan divided his submissions into two parts. First of all, he relied on the particular features of this ALMO as contained in the voluminous documentary materials before the Court: for example (and I do not set them all out), [4/95] (the reference to the Trust being “an independent organisation”), [4/22] (clause 15 of the Service Agreement, although Mr Vanhegan omitted to refer to clause 16, which is against his case), and the fact that there is no evidence that the Respondent has exercised control over the Trust from 1^st April 2010. Moreover, whereas Mr Vanhegan accepts that the documents betoken some measure of control he submits that this is scarcely equivalent to the level of control exercised over the Respondent’s own departments.

Secondly, and apart from the Teckal case itself, Mr Vanhegan referred me to Parking Brixen Gmbh v Brixen (Case C-458/03), paragraphs 62, 63, 65, 68 and 70-71, and Risk Management Partners Ltd v Brent LBC [2011] 2 AC 34, in particular paragraphs 14, 41 and 54. Overall it was Mr Vanhegan’s submission that the particular circumstances of the instant case were a considerable distance away from the high level of control which was needed to satisfy the stringent test laid down in paragraph 50 of the Teckal case.

Mr Bhose referred me to a number of features of the relationship between the Respondent and the WHCHT which, he contended, demonstrated that the control test was clearly met. In the Management Agreement he placed reliance upon clauses 5.2 [4/17] and 6.7 [4/18]. The Trust is wholly owned by the Respondent, and the latter is currently the sole member of a company limited by guarantee (the subscriber as referred to in clause 4 of the Articles of Association has passed out of the picture, as was always the intention). The Trust was set up as its sole raison d’être to provide housing management to social tenants and other allied housing functions. The Trust receives all its money from the Respondent. Having regard to Article 13 of the Articles of Association, there is a degree of apparent independence in the form of the Trust board members and the Community board members, but by Article 13 the Respondent has power at any time by notification in writing to appoint and/or remove any board member. Furthermore, the Community board members are appointed by the Respondent (see Article 25), and the local authority therefore has de facto control.

M Bhose also relied on s. 68(1)(a) of the Local Government and Housing Act 1989 which states that for the purposes of that Part of the Act “a company is for the time being under the control of the local authority if [it] is at that time a subsidiary”. The WHCHT has always been a subsidiary of the Respondent. Although not determinative of the control question, Mr Bhose submits that this is a powerful and indicative factor in support of his case. Mr Bhose made similar submissions on the effect of s. 1159 of the Companies Act 2006.

In my judgment the Teckal exemption clearly apples because the control test is satisfied. I cannot agree with Mr Vanhegan that it is relevant to consider the degree of control in fact exercised by the Respondent over the Trust at all material times; the focus must be on the nature of the arrangements between the two entities as constituted by the contractual and other documentation, and these have not changed (c.f. Parking Brixen). It is the presence, or absence, of salient features in these arrangements which will determine whether or not a procurement exercise should have been implemented before 31^st March 2010. Notwithstanding some of the language in the documents, and the references to a degree of independence, I consider that the local authority exercises complete control over the Trust in the sense of being able to determine, if necessary, what the latter may or may not do.

The Risk Management case is the most helpful because it applies EU procurement principles in a domestic context. Looking at paragraph 41 of the Opinion of Lord Hope, where reference is made to the Carbotermo case, the point is made that the control test will usually be satisfied where the contracting authority holds all of the share capital in a successful tenderer. I agree with Mr Bhose that the same principle must apply to the situation where the contracting authority is the sole member of a company limited by a guarantee. Furthermore, the following passages in paragraphs 52 and 53 of Lord Hope’s Opinion are particularly relevant:

“So long as no private interests are involved, they are acting solely in the public interest in the carrying out of their public service tasks and they are not contriving to circumvent the rules on public procurement, the conditions are likely to be satisfied.”

and

“I would sum up my conclusions on the control test, in the light of the guidance offered by these authorities, as follows. Individual control is not necessary. No injury will be caused to the policy objective of the Directive if public authorities are allowed to participate in the collective procurement of goods and services, so long as no private interests are involved and they are acting solely in the public interests in the carrying out of their public service tasks.”

In my judgment, it is clear that – on the facts of the present case - no private interests are involved, the Respondent is acting solely in the public interest in the carrying out of its public service task, and there is no contriving to circumvent the rules on public procurement.

In paragraph 54 of his Opinion Lord Hope observed that the control test was not satisfied in Carbotermo because the broadest possible discretion was conferred on the boards of the parent company and its subsidiary for their ordinary and extraordinary management. The position would have been otherwise if the local authority had had power to give the discretions to the board on strategic matters or important issues of policy. But the Respondent in the present case does have power to issue such directions.

Mr Bhose also drew my attention to paragraphs 68, 69 and 85 of the Opinion of Lord Rodger, and I entirely agree with him that these passages avail the Respondent rather than these Appellants.

I have reached the clearest conclusion that the Teckal exemption does apply in the circumstances of the present case. I have done so without specific reference to the Secretary of State’s Supplement to the Guidance on Arm’s Length Management although I note in passing that his department came to the same conclusion.

In my judgment this does not raise an arguable ground, and Mr Vanhegan should not have pursued it. Whereas it is correct that the Respondent’s internal contract procedure rules do not specifically carve out an exemption which reflects Teckal principles, it seems to me that they must impliedly do so. Indeed, the very decision in the Risk Management case itself was that the Public Contracts Regulations 2006 impliedly contained a Teckal exemption because their underlying purpose was to give effect to Council Directive 204/18/EEC. The same reasoning applies to the relationship between the Contract Procedural Rules and the Public Contracts Regulations 2006: the former are impliedly subject to the latter. In any event, I agree with the Respondent that the effect of section 135(4) of the Local Government Act 1972 is that non-compliance with the Contract Procedure Rules would not have availed the Appellants in these appeals.

The Respondent accepts that its first attempt at ratification made in January 2013 cannot avail it because the decision was made by the Council whereas it should have been made by Cabinet: housing management functions are executive functions. Accordingly, the focus must be on the decision of the Deputy Leader made on 25^th November 2013. In view of my finding on the third issue, the Respondent was well advised to purport to ratify its contracting out to the WHCHT, but the key question which arises is whether this was a valid and lawful process.

Mr Vanhegan’s first submission is that the ratification was invalid as regards rights and obligations which have already accrued, namely those of his clients. He places heavy reliance on Webb v Ipswich BC [1989] 21 HLR 325, in particular pages 327, 333 and 334. This was a control order case where the Appellant’s legal rights, including proprietary rights, were already decisively affected by the invalid acts. As Purchas LJ put it (at page 336):

“The question to be considered is whether as a matter of construction of s. 101 of the 1972 Act the statutory powers with which this appeal is concerned, can be exercised with retrospective effect. I do not find it necessary, nor indeed desirable, to consider this question as a matter of general application. Indeed I do not think that a comprehensive answer could probably be given. Quite obviously each exercise of delegation must be considered in its own statutory context. In the present case, which involves the exercise of draconian powers affecting the rights of individual property owners, the court will be slow to adopt a construction of s. 101 of the 1972 Act which will detract from or negative the protection given to the property owner under s. 379(1) of the 1985 Act. If the requirement that certain qualifying conditions must appear to exist to the council is not fulfilled either by resolution of the council or of the sub-committees or delegate properly appointed, then this omission should not be capable of ratification by a retrospective delegation of authority to an officer who has wrongly assumed such authority. That this is so is supported by the fact that Parliament has seen fit to import a special relief provision in s. 384 of the 1985 Act. If Parliament had envisaged that s. 101 of the Local Government Act 1972 should have retroactive effect for the purpose of delegating powers to be exercised under s. 379 of the Housing Act 1985 then it would have been necessary to include in s. 384 this provision: “insofar as an appeal is based on the ground that the control order is invalid, the court shall confirm the order unless satisfied that the interests of the Appellant have been substantially prejudiced by the facts relied upon by him.” This, in my judgment is a strong indication that the necessary authority under s. 379 must be vested in the committee or officer who purports to exercise them on behalf of the local authority.”

Mr Vanhegan’s second submission is that the purported ratification was ineffective because the Respondent did not comply with its own Constitution, including the Access to Information Procedure Rules. To my mind, the issue boils down to this: whether the Respondent reasonably applied the Special Urgency Procedure laid down in rule 14 of the Access to Information Procedure Rules, which provides [6/158]:

“If by virtue of the date by which a decision must be taken Rule 13 (general exception) cannot be followed, then the decision can only be taken if the decision taker in this case either the Cabinet or individual member of the Cabinet making the decision, obtains the agreement of the Chairman of the appropriate Overview and Scrutiny committee that the taking of the decision cannot be reasonably deferred…”

Rule 14 must be read in conjunction with Rule 16 which permits key decisions to be taken by the Deputy Leader in circumstances of urgency and where it is not practicable to convene a quorate meeting of the Cabinet. The Appellants submit that these conditions have not been satisfied on the evidence placed before this Court.

As the judgment of Purchas LJ suggests, the circumstances in which ratification will be effective cannot be clearly or comprehensively stated: these must depend on the overall context, and on the rights and duties involved against the background of the relevant statutory scheme. A similar theme emerges from a consideration of the authorities noted in the Encyclopaedia of Local Government Law, volume 6, where the authors note:

“it is impossible to discern any clear principle from the cases of ratification other than that they “turn on the implications of various statutory provisions: there is no rigid rule. But in general the court is likely to be more strict where the issue is one of substance as opposed to formality”(see Sir William Wade and (now Professor) C.F Forsyth, Administrative Law) (8^th Edition, page 320).

It was highly relevant in Webb that the subject matter was the exercise of a draconian power by an individual who could never have been authorised to exercise it. In the present case, the position is somewhat different. The WHCHT was the entity who was always intended by the Respondent to discharge its homelessness functions on its behalf, and as has already been pointed out the Respondent’s personnel were transferred en masse to the new Trust. The Respondent’s error, as I have identified in this judgment, was to fail to convene a meeting of Cabinet on 31^st March 2010. That said, I agree with Mr Bhose that this was a formal error which scarcely impacted on the substance of the matter. All relevant decisions of the Respondent had been made unanimously and all members of Cabinet were present at the full Council meeting on 31^st March 2010. Furthermore, it would be entirely wrong to characterise the Respondent’s homelessness functions as “draconian”: the subject matter is not the removal of private law proprietary rights but the distribution of scanty resources in a system of social welfare. The Appellants are, of course, proper applicants for social welfare benefits, but such rights as they enjoy are of a public law nature. Furthermore, as Mr Bhose also observed, many individuals have been the beneficiaries of this system since 1^st April 2010 and the Respondent would obviously wish to regularise the position to their advantage. Applying the flexible test contemplated in Webb, and bearing in mind that the issue is not one of substance but of formality, I have come to the firm conclusion that the present case is on the right side of the line from the Respondent’s perspective as regards ratification. My conclusion would have been exactly the same even if I had accepted the Appellants’ case on the second issue. It was common ground that ratification could not have been deployed to defeat the EU procurement regime if it had applied.

There is no merit in the Appellants’ points on the Special Urgency process. The Appellants took the executive functions point only in the Skeleton Argument filed on Friday 22^nd November, and the Respondent is entitled to deal with it as a matter of extreme urgency. The onus is on the Appellants to persuade me that the Rules have not been properly followed and they have failed to discharge it. I am entitled to have regard to the terms of the 25^th November resolution, and evidence is not required to vindicate the point that the Leader was not then available. Furthermore, the test in relation to alleged non-compliance with Rules 14 and 16 must be that of Wednesbury rather than of precedent fact for this Court.

My conclusion on the seventh issue is that the Respondent’s ratification made on 25^th November 2013 was lawful. It follows that the Appellants’ success on the third issue must be regarded as short-lived and that they cannot demonstrate an operative error of law for the purposes of their appeal under section 204 of the Housing Act 1996. It also follows that the eighth issue, namely that of relief, does not arise for determination; and I am not prepared to deal with it on the hypothetical premise that I might be wrong elsewhere. I entirely agree with Mr Bhose that Mr Vanhegan’s grounds are arid and technical, but I prefer to rebut them by reference to the Respondent’s subsequent ratification of the position rather than to indulge in a difficult, supererogatory analysis of the situation had those entirely prudent and frankly inevitable curative steps not been taken.

Having addressed all of the common issues identified by the parties, I now turn to consider the circumstances of the three individual cases.

Mr Bhose made a number of submissions of a general nature as to this appellate jurisdiction. He reminded that the Respondent is an expert decision maker and that I should not be applying an anxious scrutiny to this material (see, for a fairly recent statement of these principles, the Opinion of Lord Neuberger in Holmes-Moorhouse v London Borough of Richmond Upon Thames [2009] UKHL 7 at paragraphs 46-50). The authorities relied on by both parties are too well known to require formal exposition in this judgment and I obviously bear them in mind. I will only be referring to authority where specific issues arise in relation to the various grounds of appeal.

In broad terms, the issue in the cases of Tachie and Terera is whether the Respondent was entitled to conclude that the Appellants had made themselves homeless intentionally within the meaning of section 191 of the Housing Act 1996. The issue in the case of Il is whether the Respondent was entitled to conclude that the Appellant was not in priority need. The essential facts concerning all three appeals are set out in the Appendix, enabling me to focus on key matters.

When the Appellant and her husband Mr Teye Tachie married on 22^nd December 2010 they were living in Carmarthen, West Wales [1/121]. By then, Mr Tachie had been working in Hatfield since June 2010 [1/158]. In February 2011 Mrs Tachie was expecting the couple’s third child and, feeling isolated and under pressure, she wished to join her husband in Hatfield [1/122]. In relation to her subsequent homelessness application Mrs Tachie stated that she had not been paying her rent in Carmarthen because the property was “really dangerous” [1/186].

On 5^th December 2011 the Respondent decided that the Appellant was intentionally homeless [1/75]. The Respondent’s core reasoning was that it was reasonable for Mrs Tachie to have continued to reside and pay rent at 99 Belvedere Avenue “whilst she researched and identified suitable and affordable accommodation within the district”. The Respondent concluded that Mrs Tachie had deliberately failed to pay her rent over a period of time leading to her eviction from the property, and that her withholding of rent had nothing to do with the alleged state of the premises. Accordingly, this was a property which was available to her and which it was reasonable for her to continue to occupy.

On 21^st December 2011 Shelter submitted representations on Mrs Tachie’s behalf [1/234]. Three matters were raised. First, it was contended that Mrs Tachie was suffering from post-natal depression which “could be relevant to [her] ability to manage the rent account”. Secondly, it was said that the Respondent had made no finding as to whether the accommodation in Carmarthen was available for the whole household. Thirdly, and perhaps most significantly, “going further, even if your authority determines that the accommodation was available for Mr Tachie and the rest of the household it should further determine whether it would have been reasonable for them to continue to occupy, taking account of Mr Tachie’s employment”. Shelter also raised concerns about the physical state of the property.

The Respondent’s review decision under section 202 was given on 27^th January 2012 [1/9]. It focused on the points raised by Shelter. As for the post-natal depression, the Respondent pointed out that Mrs Tachie was paying her rent at the time when she was suffering from this; she was withholding her rent at other times. As for the availability of the property, the Respondent was satisfied that 99 Belvedere Avenue was available for the whole family. Thirdly, as to whether it was reasonable for Mrs Tachie to continue to occupy this property in view of her husband’s workplace, the Respondent said this:

“You moved to 99 Belvedere Avenue, Carmarthen in July 2009. At this time you were in a relationship with Mr Tachie and he moved into the accommodation with you during this period. During the period of living at this address in June 2010 Mr Tachie found work with Eurest Services in Hatfield. He decided to stay with friends during the week and travel back to be with you and the family at weekends and during his holiday period. Indeed whilst working for Eurest Services, the home address on Mr Tachie’s payslips was 99 Belvedere Avenue, Carmarthen. You later married in December whilst living at this address. It is therefore clear that the accommodation was available for the whole family. In terms of whether it was reasonable given the location of Mr Tachie’s work. This appears to have been a lifestyle choice, you were both living at this address before Mr Tachie took up work in Hatfield, if you wish to be living and working in the same area, it would therefore have been up to you to identify accommodation closer to Mr Tachie’s place of work.”

The Respondent also addressed the evidence concerning the alleged disrepair of the property.

Mr Vanhegan advances three points on this appeal which I shall address in sequence. First, it is said that the review was conducted in a manner which was procedurally unfair and in breach of natural justice, because there was a telephone conversation on 26^th January 2012 during the course of which the Appellant’s solicitors were given less than 24 hours to make representations on the review. However, there is no admissible evidence to support this ground as at the outset of the hearing I refused Mrs Tachie’s application to adduce evidence well out of time in the form of a witness statement from Lucy Fox. In the absence of evidence this ground may be taken no further. The second ground is conclusively precluded against Mrs Tachie by recent Court of Appeal authority. Mr Vanhegan sought to reserve his position on this ground pending a possible application for permission to appeal to the Supreme Court, but in my judgment the settled law is against him and I must reject the Appellant’s case on this point.

The third ground, which in my view has more substance to it, is in essence that the Respondent failed to grapple with Mrs Tachie’s case that it was no longer reasonable for her to continue to occupy 99 Belvedere Avenue. In view of her husband’s work location, her isolation, her mental state and the size of her family, basically Mrs Tachie could not cope.

The parties are agreed that the test is as laid down by the Court of Appeal in R v Royal Borough of Kingston and Chelsea ex parte Bayani [1990] 22 HLR 406, namely:

“whether the accommodation which the Applicant has ceased to occupy is available for his or her accommodation and whether it would have been reasonable for him or her to continue to occupy that accommodation. The second of these tests is not whether it was reasonable for the Applicant to leave or whether it was reasonable for the Applicant to apply for accommodation to the housing authority”(pages 409-410).

I do not understand Mr Vanhegan to be submitting that the local authority necessarily applied the wrong test; rather, it failed properly to engage with Mrs Tachie’s case.

I have already set out the critical part of the Respondent’s review decision. Mr Vanhegan submitted that what the Respondent was effectively saying was that, if Mrs Tachie wished to relocate to Hatfield she should first have identified available accommodation closer to Mr Tachie’s place of work. Mr Vanhegan emphasised that the issue was whether the property in Carmarthen was reasonable for her to continue to occupy, not whether she would or should have found accommodation in Hatfield. Moreover, the reference to “lifestyle choice” gave wholly inadequate regard to the predicament in which Mrs Tachie found herself.

Mr Bhose continued to remind me that I should not be subjecting the Respondent’s core reasoning to an overly precise legal analysis, and I accept that submission. As for the first limb of the test in Bayani, the only reason why 99 Belvedere Avenue was no longer available to Mrs Tachie is that she took a deliberate decision not to pay the rent. As for the second limb of Bayani, at one stage I was concerned about the somewhat disparaging term “lifestyle choice”, but ultimately I interpret this as saying that there were no factors in this case which drove either Mr Tachie or Mrs Tachie to the Hatfield area at all. On the contrary, the property in Carmarthen was available and suitable for the family; Mr Tachie decided to work in Hatfield, and there was no evidence that he was forced to work there - he could have found work nearer to home; and, moreover, Mr Tachie had been commuting to and from Carmarthen for a considerable period of time.

I cannot conclude that the Respondent’s decision on this key point was irrational and I therefore dismiss this appeal.

On 14^th January 2010 Mr Terera and his wife rented an apartment in Southampton [2/87]. The couple lived there with their two children born in 2005 and 2008. In 2011, it is not clear exactly when, Mr Terera applied to pursue an MSc course in Social work at the University of Hertfordshire [2/111], beginning on 1^st September 2011. On 25^th October 2011 he applied for social housing within the Respondent’s area [2/113], stating that he had moved to Hatfield on 15^th August 2011. Section B of the Housing Needs Register dated 18^th November 2011 said this [2/139]:

“We have been asked to move out by the family that we have been staying with since arriving from Southampton August 15^th 2011. They say cannot continue to live with us after saying the house and arrangement is not working out.”

In an email of uncertain date, the Respondent’s Housing Officer said this [2/144]:

“The family lived in Southampton since 2001 where they were privately renting. Mr Terera worked for Hampshire District Council. Mr Terera gave up his job and home to move to this borough as he was given a place at our university to train to be a social worker. They have been living with friends of friends at 7 Newstead since August and claim to have been looking for their own accommodation. They are no longer getting on with the family they are staying with and have been told to leave today…”

Mr Terera was interviewed on 18^th November 2011 [2/153]. He described the property in which he was living as a 3 bedroom house. The Mgunis occupied one bedroom, Mr Terera and his entire family the second bedroom, and another family occupied the third. Mr Terera was not paying rent or other household bills but he was contributing towards the cost of food. Mr Terera said that he had been told by the Mgunis that his family could stay as long as they wanted. He agreed that he had no local connection to the borough, and frankly said that perhaps he should have accepted a place at the University of Surrey instead.

Following a “minded to refuse” letter, Mr Terera was further interviewed on 14^th December 2011 [2/167]. He stated that he had tried to secure a course in Southampton or Portsmouth but had failed, and believed that improving his education would benefit the whole family. When it was put to him that the arrangement with the Mgunis was only ever going to be temporary, Mr Terera stated that it was necessary to understand the culture in Zimbabwe.

On 22^nd December 2011 the Respondent decided under s.184 of the Housing Act 1996 that Mr Terera was intentionally homeless within the meaning of s. 191 [2/173]. It is clear from this letter that the Respondent had by then spoken to Mrs Mguni by telephone, and she had stated that the accommodation she was offering was only a short-term measure, perhaps a week or two and certainly not three months. Given this, the cultural issue appeared to have no relevance. It followed that Mr Terera had, in the Respondent’s view, made himself intentionally homeless by leaving settled accommodation for entirely precarious, temporary accommodation.

On 12^th January 2012 Shelter submitted representations on this Appellant’s behalf [2/188]. Reliance was placed on two points. First, it was contended that it was Mr Terera’s belief that he and his family would be able to stay with the Mgunis until they had secured employment and accommodation for themselves. On the other hand, it was accepted that this was not settled accommodation. Secondly, the references to Zimbabwean culture are relevant to Mr Terera’s state of mind and his belief that he and his family would be accommodated with the Mgunis until they had settled their affairs.

The Respondent’s review decision is dated 9^th February 2012 [2/9]. This is a detailed decision which appears to cover all the ground. The Respondent reiterated its position that the cultural dimension to this case was not relevant because the Mgunis had said (and Mr Terera had never contradicted this) that the family would only be occupying this accommodation for a very short period of time. In short, this was a deliberate act to give up settled accommodation for something temporary and insecure.

Mr Vanhegan submitted that the Respondent has failed to consider the antecedent question arising under s.175(3) of the Housing Act 1996, namely whether it was reasonable to continue to occupy the Southampton accommodation (see, for example, paragraph 36 of the Opinion of Baroness Hale in Birmingham City Council v Ali [2009] 1 WLR 1506). Mr Vanhegan referred to a number of authorities in support of this approach. Some of these are first instance decisions which clearly turn on their own facts. However, in R v Winchester City Council [1992] 24 HLR 520 the Court of Appeal held that the Respondent authority had failed properly to consider the logically prior question, thereby invalidating its decision. That said, the facts of this case were quite exceptional and the Court of Appeal made it clear that its decision turned on the application of Wednesbury principles to a highly unusual situation.

Mr Vanhegan also drew my attention to paragraph 17 of the judgment of May LJ (as he was then) in F v Birmingham City Council [2007] HLR 18 where he said this:-

“In conducting a review under s. 202 of the 1996 Act, a local housing authority is obliged to consider the effects of s. 191(2), even if they have not been specifically invited to do so…, if it is sensibly capable of arising on the facts… An Applicant’s appreciation of the prospects of future housing can be treated as “awareness of a relevant fact” for the purposes of the subsection, provided that it is sufficiently specific and provided that it is based on some genuine investigation and not mere aspiration… If it is established that the Applicant was unaware of a relevant fact, the question is not whether the ignorance was reasonable but whether it was in good faith. The statutory dividing line comes not at the point where the Applicant’s ignorance of the relevant fact was due to his own unreasonable conduct but at the point where, for example, by the shutting his eyes to the obvious he can be said not to have acted in good faith. Wilful ignorance, at least, must fail the good faith test… If the prospect of future housing rests on little more than a wing and a prayer, it cannot be said that an original decision maker or a review panel falls into legal error by failing to invoke s. 192(2) in favour of the Applicant…”

There are dicta to similar effect in the decision of the Court of Appeal in Ugiagbe v Southwark LBC [2009] HLR 35.

Mr Vanhegan’s submission was that the review decision focused on the “ignorance of a relevant fact” point rather than the correct question, namely whether the Southampton property was reasonable for Mr Terera to continue to occupy. The fact is, he submits, that it was not. Mr Terera had found no available course in the Southampton area and it was entirely reasonable for him to wish to better himself by attending a course at the University of Hertfordshire. In short, it was no longer reasonable for him to continue to occupy the Southampton property.

Persistently though the argument was advanced, I cannot accept it. In assessing whether the Southampton property was reasonable for Mr Terera to continue to occupy, the Respondent had to have regard to a range of factors including other study opportunities closer to home and the precariousness or otherwise of the Mguni accommodation should the Tereras decide to move away from the South coast. Mrs Mguni told Mr Terera that his family could only stay for a week or two. This Appellant could have studied closer to home and have commuted. He deliberately gave up settled accommodation in favour of accommodation which could only fairly be described as transient – no more than the “wing and a prayer” referred to by May LJ. The Respondent was entitled to conclude that Mr Terera had made himself intentionally homeless in circumstances where the Southampton property was one which was reasonable for him to continue to occupy. No point of law arises in this case and I therefore dismiss Mr Terera’s appeal.

Mr Il applied for social housing [3/141] on the ground that he had been suffering from chronic depression and was on long term medication. This factor, together with his criminal record, was impacting on his chances of securing accommodation in the near future. On 17^th October 2011 Mr Il’s GP wrote in support of his application [3/316] stating that he had a history of severe depression, and that it was likely that his health would deteriorate if he were made homeless – “this would exacerbate his depression and it would be less likely that he would continue his medication regularly”. On 14^th November 2011 Mr Il’s solicitors wrote to the Respondent [3/61] identifying the key issue in their client’s case, namely his vulnerability in view of his mental health problems. The test, they said, was that laid down by Auld LJ in Osmani v Camden LBC [2004] EWCA Civ 1706, namely whether this Appellant would suffer more harm than an ordinary homeless person. The Respondent’s own medical advisor gave her opinion on 13^th December 2011 [3/317], which chimed with the GP’s view and concluded that this Appellant’s priority was “high”.

Notwithstanding what appears to have been an agreed position on the medical evidence, on 21^st December 2011 the Respondent decided under s.189 of the Housing Act 1996 that Mr Il was not in priority need, concluding that his depression was well-controlled by medication and that he had not been referred to Mental Health Services. As for the criminal conviction, this was said to be irrelevant to Mr Il’s case since he had been able to find a room to rent since leaving prison.

On 31^st January 2012 the Appellant’s solicitors submitted detailed representations in support of their client’s application for a review [3/106]. Unsurprisingly, the solicitors placed heavy reliance on the Respondent’s medical advisor’s opinion. The Respondent then asked its medical advisor to carry out a further assessment, and having done so she said this [3/319]:

“I’m not really quite sure either why I increased his priority or felt that he was vulnerable if homeless but, perhaps felt from the GP letter that his condition had in some way worsened. On overall review of all the information I feel that, in fact, “recognised” was the correct priority and that he should be able to fend for himself if homeless from the medical perspective”

This revised opinion was sent to the Appellant’s solicitors for comment [3/117]. Before the review decision was made, the Appellant’s solicitors sent the Respondent a further letter from Mr Il’s GP [3/329] giving more detail about his case and stating that mental health patients are normally cared for in the primary care sector. There is also a third letter from the Respondent’s medical advisor dated 23^rd March 2012 [3/376] stating:

“Naturally his depression is likely to worsen if he becomes homeless. This does not, however, mean that he will take his medication any less regularly nor that his depression would necessarily destabilise, although of course there is a risk that it might do so.”

This was not provided to the Appellant before the review decision was made.

The Respondent gave its review decision under s. 202 of the Housing Act 1996 on 26^th March 2012 [3/23]. It now agreed that Mr Il was homeless (at one stage the Respondent appears to have placed this point in issue). It applied the test laid down by the Court of Appeal in R v Camden LBC ex parte Pereira [1999]31 HLR 317 at 330, and Osmani (loc. cit.) observing that the issue of vulnerability was for the Respondent to decide, not for medical opinion. The Respondent observed that the Appellant’s depression was stable and well controlled. That said:

“If you were homeless, it is natural in considering whether you are vulnerable when street homeless, that anyone in this position would suffer from some level of depression. With continued use of your medication, I do not see any reason to believe you would be at any greater harm or detriment than the ordinary street homeless person suffering related depressive symptoms.”

Mr Vanhegan advances two grounds of appeal. First, that the review decision was carried out in breach of Regulation 8(2) of the Allocation of Housing and Homelessness Review Procedures Regulations 1999, [1999 SI No 71]. As an ancillary point, it is submitted that the decision was in any event reached unfairly. Secondly, it is argued that the Respondent failed to take account of relevant considerations, in particular the fact that the Appellant’s GP was in a far better position to assess his mental state than the Respondent’s medical advisor.