Mr and Mrs Gough v Hertfordshire County Council

On the afternoon of Monday 26th June, Mr Gough, on behalf of himself and his wife, gave notice in writing to the secretary of the Tribunal that he desired to withdraw their appeal under the provisions of Rule 12 of the Registered Homes Tribunal Rules 1984. Accordingly the Tribunal makes no finding of fact and deems that the appeal is dismissed by virtue of such withdrawal.

Submissions of Law

Prior to the withdrawal of the appeal, a submission was made by Counsel for the Appellants that the Tribunal had no jurisdiction to hear the appeal on the grounds that the home had been sold, and that, since the subject matter of the appeal no longer existed, there was nothing left for the Tribunal on which to adjudicate. The argument was briefly as follows.

In July 1985 the Appellants were registered. In December 1988 the Respondent served notice of proposal to cancel the registration. On February 15^th 1989 the proposal to cancel was adopted. On 17^th February 1989 the Appellants gave notice of appeal. On April 6^th 1989 the sale of Winnett Cottage was completed.

The decision to cancel was on two grounds. Although the decision was made it never took effect because of the notice of appeal. The decision does not then take effect until it is determined or abandoned, section 14(3)(b). The appeal is against a decision, not the grounds on which the decision is made, section 15(1). Support for this is provided by Lyons, which said, inter alia, that a Tribunal could dismiss an appeal on grounds other than those originally relied on. The decision has not taken effect and it can never take effect since the registration of the Appellants as owners has ceased to exist.

It is relevant to consider the powers available to the Tribunal if it proceeds to hear the appeal on the merits. These are contained in sections 15(4) and (6). It follows that, the Appellants' registration having ceased to exist, the Tribunal would be impotent to exercise these powers, even if the evidence relating to the appeal were heard. Some support for this proposition is to be found in Lyons (page 14G), as the present position is closely analogous.

The only contrary argument might be that to hear the appeal would give an ex-owner the opportunity to clear his name? The answer to that proposition is (a) that if the scheme of the Act does not allow an owner such opportunity, there is nothing to be done, however desirable this might be thought to be. One cannot go behind the Act; and (b) that the Registration Authority is not a court or tribunal. It makes no findings of fact. If the decision to cancel is not appealed against there is no res judicata.

If the Appellants desire in the future to apply once again to be registered, their application can be made in the normal way, with enquiries being made by the registration authority and suchlike. If they were then refused registration, they would have an unfettered right of appeal.

Counsel for the Respondents responded to this submission as follows. It was agreed that the interpretation of section 14 was entirely right, that the decision does not take effect until determined or abandoned. Likewise the provision of section 15. However, this loses relevance once the home is sold. The Respondents, who had hoped to support the Appellants' submission, found themselves unable to do so, and they said that the Tribunal had jurisdiction. They were under the impression, when they agreed to support the Appellants' submission, that the decision below would stand. It is clear that that basis is not correct. The Respondents had not considered the full implications as a matter of law.

Counsel for the Appellants argued that the "decision below" does stand. The Committee resolved to cancel. This is a matter of history. To suggest that that decision will disappear is ludicrous. The legal effect of it is that it is statutorily suspended. It cannot now be lifted as there is nothing to cancel. Nevertheless the decision stands, although there is no decision as to whether it was rightly made.

The Tribunal was invited to rule on the Appellants' submission.

After an adjournment the Tribunal gave the following response. It ruled AGAINST the Appellants' submission that as a matter of law it had no jurisdiction to hear the appeal. These were its reasons.

The Tribunal does have jurisdiction to hear the appeal notwithstanding the home has been sold, since (a) the Appellants were owners at the time the proposal to cancel was adopted and (b) at the time when the notice of appeal was submitted.

Having decided that the appeal can be allowed to proceed, the Tribunal asks itself whether it ought to proceed, i.e. whether it should exercise its discretion? To answer this question it considers that if the point raised is a moot point the Tribunal might consider that it should not exercise its power to hear the appeal, on the grounds that the point is now academic, the home having been sold.

However, the Tribunal considers that the point is not moot. A decision was made by the Council which will stand, whether it takes effect or not, unless it is abandoned or appealed against to the Tribunal. If it is appealed against, the appeal may be allowed or dismissed. If it is allowed, the Appellants would (a) have cleared their names and (b) not suffered actual/potential financial prejudice (by this is meant the commercial consequences of cancellation, should the Appellants ever wish to apply again for registration). If their appeal were dismissed, that would be the end of the matter (assuming there was not a further appeal), that is to say, a finding is made against them.

It is against the interests of justice (in the absence of the Appellants' abandonment of the appeal) to have a finding (e.g. of unfitness) made against them by the Council, without a fresh consideration and testing of the evidence by a Tribunal, since the Tribunal's function in an appeal is to rehear all the evidence.