![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |
England and Wales Court of Appeal (Civil Division) Decisions |
||
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Heald & Ors v London Borough of Brent [2009] EWCA Civ 930 (20 August 2009) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2009/930.html Cite as: [2009] EWCA Civ 930, [2010] PTSR 572, [2010] 1 WLR 990, [2009] BLGR 937, [2010] HLR 8, [2009] LGR 937, [2009] HRLR 34, [2010] WLR 990 |
[New search]
[Context]
[View without highlighting]
[Printable RTF version]
[Buy ICLR report: [2010] PTSR 572]
[Buy ICLR report: [2010] 1 WLR 990]
[Help]
COURT OF APPEAL (CIVIL DIVISION)
AND ON APPEAL FROM WILLESDEN COUNTY COURT
HHJ McDowall
8WI01562
AND ON APPEAL FROM CENTRAL LONDON COUNTY COURT
HHJ Mitchell
8CLO6126, 8CLO6311 and 8CLO775
Strand, London, WC2A 2LL |
||
B e f o r e :
LORD JUSTICE STANLEY BURNTON
and
SIR SIMON TUCKEY
____________________
Michaela De-Winter Heald Salsam Al-Jarah Nasrin Begum Ahmad Yordanos Kidane |
Appellants |
|
- and - |
||
London Borough of Brent |
Respondent |
____________________
Martin Russell (instructed by Moss Beachley Mullem & Coleman) for Salsam Al-Jarah, Nasrin Begum Ahmad and Yordanos Kidane
Donald Broatch (instructed by Brent Legal Services) for the London Borough of Brent
Hearing date : 20 July 2009
____________________
Crown Copyright ©
Lord Justice Stanley Burnton :
Introduction
(1) By Michaela De-Winter Heald against the order dated 12 January 2008 of HH Judge McDowell sitting in Willesden County Court dismissing her appeal under section 204 of the Act.
(2) By Salsam Al-Jarah, Nasrin Begum Ahmad and Yordanos Kidane against the orders dated 9 December 2009 of HH Judge Mitchell sitting in Central London County Court dismissing each of their appeals under section 204.
The facts
(a) Michaela De-Winter Heald
The Contractor shall provide the Service during the Contract Period and in accordance with these Conditions, the Specification and all relevant legislation, in a proper, skilful and professional manner and in accordance with the written instructions and to the reasonable satisfaction of the Authorised Officer.
Brent Council receives approximately 3000 applications a year from people seeking assistance under either the Housing Act 1996 Part 6 (Allocation of Housing Accommodation) and 7 (Homelessness) or the Homeless Act 2002. The demand for housing in Brent far exceeds the amount of permanent accommodation Brent Council has available. There are some inevitable and difficult problems that result from this, including the need to ration very scarce resources, manage Applicant expectations and the necessity to provide temporary accommodation for homeless households. ...
…
The Service is currently provided by an external contractor who also provides a similar service to two other London boroughs. Brent Council has an administrative officer within the Housing Resource Centre whose sole responsibility it is to co-ordinate and correlate with the contractor all housing review information and matters. This entails dealing with all written and verbal communication with Applicants and their Advocates, as well as serving as the main link between Brent Council and the contractor. In addition, Brent Council has an Assessment Manager who decides whether Brent Council grants an Applicant temporary accommodation pending the outcome of the applicant's review and/or appeal.
The Contractor shall effectively discharge Brent Council's duty under sections 167 (4A) and 202 of the Housing Act 1996 by making and detailing all relevant enquiries, writing Decision Review letters and adhering to all the relevant legislative and other legal requirements ... and in accordance with Brent Council's Decision Review policies and procedures and any guidance which may be issued by the government in relation to aspects of the Service.
The Contractor shall complete Decision Reviews within 30 calendar days of the application being made to Brent Council where no further enquiries need to be made.
In cases where further enquiries are necessary and Decision Reviews cannot be completed within 30 calendar days, the Contractor shall make a request to the Applicant (or Advocate) for an extension to the 56 calendar day period (which is the maximum period permitted by the legislation).
The Contractor shall liaise with Brent Council's Legal Services in relation to section 204 county court appeals and provide written statements to support legal challenges or judicial review cases.
The Contractor shall handle requests for extensions of time from Applicants (or Advocates).
The Contractor shall, where necessary, conduct interviews/meetings with Applicants (or Advocates).
The Contractor shall engage the services of a translator/interpreter where necessary. Fees for translation … may be reclaimed from Brent Council …
the Contractor shall make recommendations to Brent Council concerning the final outcome of Decision Reviews.
The Contractor shall appoint a named person to serve as a Review Manager who shall be responsible for delivering the Service. The Review Manager is required to have expert knowledge of the statutory review provisions of the Housing Act 1996 Parts VI (Allocation of Housing Accommodation) and VII (Homelessness), the Homeless Act 2002, the non-statutory Appeals policies and procedures established by Brent Council, any other relevant legislation and related case law, as well as any guidance which may be issued by the government relating to aspects of the Service. The Review Manager is required to have a comprehensive understanding of housing needs and resource allocation.
The Review Manager was and is Mr Perdios. Paragraph 7 of the Specification required HRL to have the capacity to complete a minimum of 87 review decisions per month if required.
The Review Manager, assisted by and Administrative Officer, receives an average of 10 requests for decision review from dissatisfied applicants every week, but he is unable to complete about half that number and, clearly, has no capacity to meet the statutory 8 week deadline in most cases, let alone deal with any unexpected influx of review requests (As an example, there were 52 requests still pending review as that 19 November 2004).
The report estimated that Brent would receive more than 500 review requests per year, of which only about 260 could be determined, there being no capacity to deal with the remaining 240 requests. Interestingly, against the heading "independence/neutrality", the report stated, for in-house review "N/A" but against external review "Will give the process a degree of independence".
(b) Salsam Al-Jarah, Nasrin Begum Ahmad and Yordanos Kidane
(1) Someone who was not directly employed by a local authority is not an appropriate person to deal with a review.
(2) The review decisions were misleading and untrue because Mr Perdios held himself out as an employee or officer of Brent promulgating a decision of Brent.
(3) His role was tainted by apparent bias because:
(a) His website boasted a success rate that could only be achieved by making decisions adverse to applicants.
(b) "Seeking freelance employment infringes Article 6 of the European Convention on Human Rights because Mr Perdios justifies the continuance of his precarious employment on a success rate helpful to his employer."
(c) "It is not obvious to a fair and impartial observer whether or how the terms of regulation 2 of the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 have been met, if, contrary to his website, Mr Perdios is properly identified as the respondent's review manager."
Since 2001 we have been providing an independent housing reviews (Sec 202 Part VI Housing Act 1996) service to local authorities. As service providers we carry out reviews on behalf of local authorities in an efficient and effective manner with only little administrative back-up required from the local authority.
We have dealt with over 3500 reviews with unparalleled success. Out of these cases, 158 have been appealed in the County Court with 95% of cases successfully defended. Furthermore, 45 re-reviews have been required to be carried out. Judges in both the County Court and Court of Appeal have commended my work.
In the Court Appeal case, Griffin v City of Westminster 2004 EWCA Civ 108 Lord Justice Kennedy stated,
"the review officer gives his reasons for reaching that conclusion in an exemplary fashion."
In the Central London County Court case of Amnsor v City of Westminster, HHJ Roger Cooke stated that he was,
"impressed with the detail in the review decision".
If you are looking to contract out your s202 functions or you need temporary assistance to help clear a backlog we can meet your needs. We can also provide a full training programme for your homeless and prevention officers and carry out audits of homeless decisions
The terms and conditions by which the Housing Reviews Ltd and the Local Authorities work together to enable the Council to effectively discharge its statutory duty under Section 202 Housing Act 1996 are as follows.
Obligations of Housing Reviews Ltd.
1. To effectively discharge the duty under Section 202 Housing Act 1996 on behalf of the Local Authority making and detailing all relevant enquiries, writing review decision letters and adhering to the requirements set out in Regulation 8.
2. To carry out all relevant enquiries in relation to making a review decision.
3. To request an extension to the 56-day period where necessary and provide reasons for this request.
4. To liaise with Legal Service in relation to Section 204 County Court Appeals.
5. To complete a review within 30 days when no further enquiries are
required to be made.
6. To identify shortfalls and provide training to housing staff for a fee to be agreed depending on the requirements.
Obligations of the Local Authorities
1. To provide a copy of the applicant's housing application when they request a review.
2. To send Regulation 6/acknowledgement letters to the applicant acknowledging their request for a review.
3. To update the Housing Reviews spreadsheet and Council housing computer database when a review request is made and when a review has been completed.
4. To provide administrative support when cases need to be referred to the Council's Medical Advisor.
5. To provide access, where possible, to the Council's housing computer database.
Training for Local Authority Homeless Officers.
We provide a comprehensive training programme for local authority homeless officers.
The training programme is called 'Investigating Homeless Applications and Writing Decision Letters - A Practical Guide'.
[Diagram or picture not reproduced in HTML version - see original .rtf file to view diagram or picture]Course Aims: The course aims to assist caseworkers involved in assessing applicants in relation to applications made under Housing Act 1996 by providing them with a practical guide in investigating homeless applications taking into account case law, the legislation and other recent developments regarding homelessness and allocations. The course will also provide ideas on writing s184 decision letters.
Too often courses do not provide homeless officers with the tools needed to be able to make adequate enquiries, be able to obtain all the relevant information during the crucial initial interview through effective questioning and use the information obtained to write a 'watertight' s184. This course will provide those tools as it focuses on the practical side of making enquiries and asking the 'right' questions. Knowing what to ask and what enquiries to make is crucial to arriving to a reasonable and correct decision. This is irrespective of whether you are investigating homelessness, eligibility, priority need, intentionality or local connection.
The course also provides practical advice on how to write a 'watertight' s184. Officers will have the opportunity to scrutinise some 'model' bad s184 decisions.
9. I wish to make a clear explanation of the figures/statistics given on the first page. Over 3,500 reviews have been dealt with. Of those cases, 158 had been appealed to the County Court. In 5% of those cases were appeals allowed, and in 95% of those cases, my decision was successfully defended.
10. There reference to 45 "re-reviews" is a reference to 45 out of the 3,500 and not 45 out of 158. Of the 3,500 reviews which I have conducted only 45 of them have been required to be carried out again. These were not cases where appeals were allowed, but cases where representatives of the Authority concerned asked me to carry out a fresh review. In many of the cases, new facts may have arisen, the applicant/appellant might have had a change in circumstances, or further investigations might have revealed something which had not been appreciated earlier. It should not be inferred that those 45 cases were ones in which the original decision had been found to be in error.
3. I have carried out 1020 reviews on behalf of the London Borough of Brent. Out of these I have overturned approximately 12%. I have also withdrawn a further 5% of s.184 and referred them back to the caseworker in instances where I have felt that they have not been procedurally fair.
12. Thus, it remains open to the Authority not to accept Mr. Perdios' "decision" in any given case. His "decisions" are not, of course, initially decisions until and unless they are accepted and adopted by the Authority. Until then they are merely "recommended decisions".
13. In each case the decision recommended by Mr Perdios is open to consideration by an officer of the Authority. The review functions carried out by Mr Perdios fall into two different discrete types: (i) homelessness reviews and (ii) suitability reviews.
14. In relation to suitability reviews (i.e. suitability of accommodation) Mr Kevin Coleman of Authority who is the Re-housing Manager, is the responsible officer on behalf of the Authority. This was the case with the suitability appeals of both A1 and A2.
15. In relation to homelessness reviews, I have the function of accepting or not accepting the recommended decision. Of course, if I were ever to consider that any recommended decision showed any bias against the applicant, I would not approve it. I have never formed such a view of any or Mr Perdios' recommended decisions. However in practice, when the Authority receives Mr Perdios' recommended decisions, generally by e-mail, they are routinely adopted. The Authority has confidence in Mr Perdios. Part of the reason for the sub-contracting arrangement in the first place, was so that the relevant officers of the Authority, who are busy people, did not have to address the reviews themselves.
6. When Mr Perdios carries out a review on a suitability issue, I am authorised to exercise the function, on behalf of the Authority, of deciding whether his recommended decision is to be accepted. Whilst it is open to me, or any other relevant officer, not to adopt Mister Perdios' recommended decision, I have to accept the account of what happens in practice set out in Mr Amoako's statement.
7. Of course, if I ever were to consider that any recommended decision showed any bias against the Applicant, I would not adopt it on the Authority's behalf. I wish to make it clear, however, that I have never formed such a view of any of Mr decisions.
The applicable legislation
202 Right to request review of decision
(1) An applicant has the right to request a review of—
(a) any decision of a local housing authority as to his eligibility for assistance,
(b) any decisions of a local housing authority as to what duty (if any) is owed to him under sections 190 to 193 and 195 and 196 (duties to persons found to be homeless or threatened with homelessness),
(c) any decision of a local housing authority to notify another authority under section 198(1) (referral of cases),
(d) any decision under section 198(5) whether the conditions are met for the referral of his case,
(e) any decision under section 200(3) or (4) (decision as to duty owed to applicant whose case is considered for referral or referred), or as to the suitability of accommodation offered to him, as mentioned in section 193(7),
(f) any decision of a local housing authority as to the suitability of accommodation offered to him in discharge of their duty under any of the provisions mentioned in paragraph (b) or (e).
(2) There is no right to request a review of the decision reached on an earlier review.
(3) A request for review must be made before the end of the period of 21 days beginning with the day on which he is notified of the authority's decision or such longer period as the authority may in writing allow.
(4) On a request being duly made to them, the authority or authorities concerned shall review their decision.
203 Procedure on a review
(1) The Secretary of State may make provision by regulations as to the procedure to be followed in connection with a review under section 202.
Nothing in the following provisions affects the generality of this power.
(2) Provision may be made by regulations—
(a) requiring the decision on review to be made by a person of appropriate seniority who was not involved in the original decision, and
(b) as to the circumstances in which the applicant is entitled to an oral hearing, and whether and by whom he may be represented at such a hearing.
Where the decision of the authority on a review of an original decision made by an officer of the authority is also to be made by an officer, that officer shall be someone who was not involved in the original decision and who is senior to the officer who made the original decision.
Functions of local authorities.
(1) This section applies to any function of a local authority—
(a) which is conferred by or under any enactment; and
(b) which, by virtue of section 101 of the Local Government Act 1972 or section 56 of the Local Government (Scotland) Act 1973 or section 38 or 380 of the Greater London Authority Act 1999 (arrangements for discharge of functions by local authorities), may be exercised by an officer of the authority; and
(c) which is not excluded by section 71 below.
(1A) …
(2) If a Minister by order so provides, a function to which this section applies may be exercised by, or by employees of, such person (if any) as may be authorised in that behalf by the local authority whose function it is.
Any function of an authority which is conferred by or under Part VII of the Act (Homelessness) except one which is listed in Schedule 2 to this Order, may be exercised by, or by employees of, such person (if any) as may be authorised in that behalf by the authority whose function it is.
Functions conferred by or under any of the following provisions of the Act
(a) section 179(2) and (3) (duty of local housing authority to provide advisory services)
(b) section 180 (assistance for voluntary organisations)
(c) section 213 (co-operation between relevant housing authorities and bodies).
The parties' submissions in this court
Discussion
8. Is this quality of review sufficient to meet the requirements of article 6(1) on the assumption that a "civil right" is in issue? It is plain that the county court judge may not make fresh findings of fact and must accept apparently tenable conclusions on credibility made on behalf of the authority. The question is whether this limitation on the county court judge's role deprives him of the jurisdiction necessary to satisfy the requirement of article 6(1) in the present context.
9. In approaching this question I regard three matters as particularly pertinent:
(1) Part VII of the 1996 Act is only part of a far-reaching statutory scheme regulating the important social field of housing. The administration of that scheme is very largely entrusted to local housing authorities. While the homelessness provisions are of course intended to assist those individuals who are or may become homeless, there is a wider public dimension to the problem of homelessness, to which attention was drawn in O'Rourke v Camden London Borough Council [1988] AC 188 at 193 C-E.
(2) Although, as in the present case, an authority may have to resolve disputed factual issues, its factual findings will only be staging posts on the way to the much broader judgments which the authority has to make. In deciding whether it owes the full housing duty to an applicant under section 193(1) the authority has to be "satisfied" of three matters and "not satisfied" of another. Under section 193(7)(b) the authority ceases to be subject to the full housing duty if it is "satisfied that the accommodation [offered to the applicant] was suitable for [the applicant] and that it was reasonable for him to accept it." Thus it is the authority's judgment which matters, and it is unlikely to be a simple factual decision. This is exemplified by the letter of 27 July 2001 written to Runa Begum by Mrs Hayes following the review, which included this passage:
"I consider that the property offered is both suitable for you and your children in that the physical attributes are in accordance with the Council's Allocation Criteria, and I further consider that it is reasonable to expect yourself and your household to occupy the property offered as I consider that the area in which Balfron Towers is located is no different to any other area within the London Borough of Tower Hamlets . . ."
(3) Although it seems to me obvious, as I have said, that the reviewer is not independent of the authority which employs him or her, section 203 of the 1996 Act and The Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 (S1 1999/71) do provide safeguards that the review will be fairly conducted. Thus the reviewer must be senior to the original decision-maker (section 203(2)(a), regulation 2), plainly to avoid the risk that a subordinate may feel under pressure to rubber-stamp the decision of a superior. The reviewer must not have been involved in making the original decision (section 203(2)(a), regulation 2), to try to ensure that the problem is addressed with a genuinely open mind. The applicant has a right to make representations, and must be told of that right (regulation 6(2)). Such representations must be considered (regulation 8(1)). The applicant is entitled to be represented (regulation 6(2)). If the reviewer finds a deficiency or irregularity in the original decision, or in the manner in which it was made, but is nonetheless inclined to make a decision adverse to the applicant, the applicant must be informed and given an opportunity to make representations (regulation 8(2)). The reviewer must give reasons for a decision adverse to the applicant (section 203(4)). The applicant must be told of his right to appeal to the county court on a point of law (section 203(5)). These rules do not establish the reviewer as an independent and impartial tribunal, but they preclude unreasoned decision-making by an unknown and unaccountable bureaucrat whom the applicant never has a chance to seek to influence, and any significant departure from these procedural rules prejudicial to the applicant would afford a ground of appeal.
10. In the course of his excellent argument, Mr Paul Morgan submitted that where, as in the present case, factual questions rise they should be referred for decision by an independent fact-finder. This solution received some support from the Court of Appeal in Adan v Newham London Borough Council [2002] 1 WLR 2120, [2001] EWCA Civ 1916. I have very considerable doubt whether the resolution of applications for review, or any part of such process, is a function of the authority within the scope of article 3 of The Local Authorities (Contracting Out of Allocation of Housing and Homelessness Functions) Order 1996 (SI 1996/3205), from which authority to refer was said to derive. But even if that question were resolved in Runa Begum's favour, the proposed procedure would, in cases where it was adopted, (a) pervert the scheme which Parliament established, and (b) open the door to considerable debate and litigation, with consequent delay and expense, as to whether a factual issue, central to the decision the reviewer had to make, had arisen. I fear there would be a temptation to avoid making such explicit factual findings as Mrs Hayes, very properly, did.
11. In relation to the requirements of article 6(1) as applied to the review by a court of an administrative decision made by a body not clothed with the independence and impartiality required of a judicial tribunal, the Strasbourg jurisprudence (as in relation to "civil rights") has shown a degree of flexibility in its search for just and workmanlike solutions. Certain recent authorities are of particular importance: Zumtobel v Austria (1993)17 EHRR 116 at 132-133, para 32; ISKCON v United Kingdom (1994) 18 EHRR CD 133 at 144-145, para 4; Bryan v United Kingdom (1995) 21 EHRR 342 at 354 (concurring opinion of Mr Bratza) and p 361, para 47; Stefan v United Kingdom (1997) 25 EHRR CD 130 at 135; X v United Kingdom (1998) 25 EHRR CD 88 at 97; Kingsley v United Kingdom (2000) 33 EHRR 288 at 302-303, paras 52-54; (2002) 35 EHRR 177 at 186-188, paras 32-34. None of these cases is indistinguishable from the present, but taken together they provide compelling support for the conclusion that, in a context such as this, the absence of a full fact-finding jurisdiction in the tribunal to which appeal lies from an administrative decision-making body does not disqualify that tribunal for purposes of article 6(1). This is a conclusion which I accept the more readily because it gives effect to a procedure laid down by Parliament which should, properly operated, ensure fair treatment of applicants such as Runa Begum.
46. It therefore seems to me that it would be inappropriate to require that findings of fact for the purposes of administering the homelessness scheme in Part VII should be made by a person or body independent of the authority which has been entrusted with its administration. I certainly see nothing to recommend the recourse to contracting out which was suggested by the majority in Adan's case. Some of the arguments against it are well made by Hale LJ at p 2144, paras 77-78. Four points seem to me important. First, if contracting out is not adopted across the board, it would be bound to generate disputes about whether the factual questions which had to be decided by the housing officer were sufficiently material to require contracting out. Secondly, if it were adopted in every case, it would add significantly to the cost and delay. Thirdly, it would mean that the housing officer, instead of being able to exercise his discretionary powers, such as whether he considered accommodation suitable for the applicant, on a first-hand assessment of the situation, would be bound by a written report from the independent fact finder. Fourthly, I am by no means confident that Strasbourg would regard a contracted fact finder, whose services could be dispensed with, as more independent than an established local government employee. In Adan's case, at pp 2134-2135, para 44, Brooke LJ declined to become involved in "the practical difficulties that may arise when trying to ensure that the third party has the requisite independence" but they are worth thinking about.
97. It was suggested that where, as in the present case, factual disputes arise for decision, the case should be referred to an external fact-finder independent of the local housing authority. Like my noble and learned friend Lord Bingham, I doubt that the exercise of quasi-judicial powers is a function of the authority within the meaning of the relevant Order, which is concerned in very general terms with deregulation and the subcontracting of ordinary local authority functions. But in any case I do not see how a person appointed ad hoc by the authority directly concerned and lacking any kind of security of tenure could constitute an "independent … tribunal established by law" as required by article 6(1). Moreover, while the legality of farming out the decision-making function in relation to disputes of fact which arise in the course of the hearing is open to doubt, there can be no doubt that it would create an administrative nightmare. It is notable that Parliament has established no similar procedure for any of the great number and variety of decisions that it has devolved to administrative bodies.
The [1996] Order provides that the majority of functions under Part 7 can be contracted out. These include:
- …
- carrying out reviews of decisions;
…..
Sir Simon Tuckey :
Lord Justice Sedley :