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England and Wales High Court (Administrative Court) Decisions
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Cite as:  EWHC 43 (Admin)
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QUEENS BENCH DIVISION
|Royal Courts of justice|
London, WC2A 2LL
B e f o r e :
THE QUEEN ON THE APPLICATION OF LINDA CONWAY V THE MAYOR AND BURGESSES OF THE BOROUGH OF CHARNWOOD
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
AS APPROVED BY THE COURT
Crown Copyright ©
“Any person who is the tenant, or partner of a tenant, of a local authority or housing association, and it is reasonable for that person and anyone normally residing with them to occupy the property.”
“Thank you for your recently submitted Housing Register application.
I have fully considered all your circumstances and have sought the advice of the Council’s Specialist Occupational Health Therapist. I regret, however, that I have concluded that you do not qualify for this Council’s Housing Register. This is because you are a Housing Association tenant and I consider it reasonable for you to occupy your Housing Association accommodation.
In arriving at the decision that it is reasonable for you to occupy your present accommodation, I have had regard to the proximity of your support networks to your present home, to the fact that your landlord is willing to transfer you to a larger property and adapt this for your needs and to the fact that this Authority would have considerable difficulty in finding you suitable accommodation in the Syston area.
You may request a review of this decision and if you would like to do so, you should confirm your request within the next 21 days.”
< “I will arrange for the Appeals Sub-Committee to undertake a review of the decision as soon as possible. The Committee Officer will notify you of the date of the review as soon as it is known. The Sub-Committee will consider written submissions only. All evidence that you have already supplied will be forwarded to the Sub-Committee but if you want any additional information to be considered, you should forward it to me as soon as possible.”
“The Panel will consider papers relating to your application, including your letter of 6 April 2001 and the written submission of the Director of Housing and Public Services. If there is any further information that you wish the Panel to consider, please let me have that information by … 12 June 2001 so that I can send it to members of the Panel. You will be notified of the Panel’s decision following the meeting.”
“However, it is felt that in some areas, the revised Policy would benefit from clearer definitions, and more flexibility. The main reasons for change and suggested solutions are summarised below. The proposed policy changes attempt to retain clear classes of qualifying persons and to prevent persons who do not fall into these classes from gaining admission onto the Register while introducing an element of discretion within these classes to allow greater flexibility and avoid blanket policies.”
(2) The current policy allows applicants aged under 60 years who own a property to qualify for the Register if it is “not reasonable for them to occupy that property”. In practice, this policy has proved vague and subjective as “reasonableness to occupy” is not defined.
The policy also allows owner occupiers living in unsatisfactory housing but who have equity in their home, or savings or a reasonable income, to register and receive offers of accommodation, perhaps at the expense of applicants without these resources. If re-housed, these applicants could sell their property for a profit or let the property and receive a rental income from it. A further difficulty with the policy is that it allows owners in unreasonable accommodation onto the Register, but the points system has not been changed to allow points to be awarded to reflect the difficulties that these applicants face.
It is suggested that the policy be re-worded to make the definition of “unreasonable to occupy” clearer and more objective. It is further suggested that the points system be amended to give minimum priority to owners who have the financial resources to resolve their housing difficulties for themselves, and greater priority to those who lack those resources. A financial assessment procedure is already in place for staff to use to determine affordability of accommodation for applicants and to establish the financial resources available to applicants.
(3) The current policy allows local authority or housing association tenants to qualify for the Register if it is unreasonable for them to occupy their accommodation. The same reasons for change have been encountered as per (2) above. It is suggested that local authority and housing association tenants under the age of 60 are entirely excluded from the Register. Tenants experiencing difficulties in their present accommodation qualify for the housing transfer list and should be assisted through this route or by mutual exchange or the HOMES Scheme.”
“(iii) Any person under sixty years of age or their partner who is a tenant of a Local Authority or Registered Social Landlord.”
The claimant was notified of the change only when she was informed of the outcome of the review.
“Since the agenda for the above meeting of the Panel was prepared, the Cabinet has agreed, at its meeting on 14 June 2001, a number of changes to the qualifying criteria for the Housing Register. A copy of the Cabinet report is attached for information. These changes affect the cases before the Panel and the Head of Housing would ask that the Panel consider the reviews in the light of the revised policy and in conjunction with the comments already made in the Head of Housing’s case submissions.
Under the revised policy, Registered Social Landlord (RSL) tenants under the age of 60 years do not qualify for the Housing Register. There is no discretion for officers or the Panel to admit RSL tenants onto the Register under any circumstances. The Panel must therefore uphold the Director of Housing and Public Services’ decision that Ms Conway is a non-qualifying person for the Housing Register.”
“I am writing to inform you of the decision of the Appeals and Reviews Panel held on Friday 29 June 2001, to consider your appeal against the decision of the Director of Housing and Public Services (contained in his letter of 13 March 2001) that you do not qualify for inclusion on the Housing Register.
The Panel considered written representations from both parties, the revised Housing Register qualification criteria recently adopted by the Council (copy enclosed together with extracts from the report to Cabinet) and decided:(1) That you are the tenant of a Registered Social Landlord, Touchstone Housing Association, in respect of 200 Martin Street, Leicester.(2) That as a result of the recent change in policy you therefore to not qualify for inclusion on the Housing Register.
Accordingly the decision of the Director of Housing and Public Services … has been upheld and a copy of this letter has been sent to [him] so that he is aware of the Panel’s decision.”
“I can confirm that the Panel took into consideration all of the Claimant’s circumstances and were extremely sympathetic to her application. However, notwithstanding the Claimant’s circumstances, the Panel were constrained by the terms of the Council’s recently adopted Policy … which gave them no scope to exercise any discretion. The Panel therefore refused her application on that basis.”
“The provisions of this Part do not apply to the allocation of housing accommodation by a local housing authority to a person who is already -
(b) an assured tenant (otherwise than under an assured shorthold tenancy) of housing accommodation held by a registered social landlord …”
(b) In R v Tower Hamlets LBC ex p. Uddin (1999) 32 HLR 391 Keene J, as he then was, had to consider a scheme for determining priority in relation to existing tenants of the local authority who wished to transfer to other such accommodation. By s.159(5)(c) they also are placed outside Part VI. At 394 the judge quoted with approval a statement by Richards J. in R v L.B. of Islington ex p. Reilly and Mannix (1998) 31 HLR 651 as follows:
“Accordingly, as regards its application to these applicants, the authority’s Allocations Scheme falls to be assessed not on the basis of the statutory provisions or related ministerial guidance, but in accordance with general principles of public law. That is not to say that the court will close its eyes to the statute or the ministerial guidance. Although they do not govern the present situation, their substantive content may have a bearing on the lawfulness of the position at common law.”
Keene J. continued:
“There is no doubt that a housing authority has a discretion as to how it exercises its power to allocate housing to existing secure tenants who wish to move and as to how it arrives at an order of priority amongst them. On the other hand, that is not an unfettered discretion. Its exercise will have to reflect the purposes for which the power to hold such property as landlord exists, as well as the normal principles of public law.”
(c) It is clear that the defendants in the present case have elected, no doubt rationally, to extend to local authority and housing association tenants the statutory machinery of their register and of their scheme for determining priority, even though, under the new policy, the extension is limited to those aged 60 or over.
“In my judgment, this challenge succeeds not essentially because the policy is intrinsically irrational, but rather because it constitutes a rule which requires to be followed slavishly rather than merely a stated general approach which is always subject to an exceptional case and which permits each application to be individually considered.
Counsel for the applicant recognises that a public authority such as this respondent council is well entitled to adopt a general policy as to how it will exercise its statutory powers and discharge its statutory duties …
[He] recognises that the council could have worded the policy here in language which would have been proof against successful legal challenge provided only and always that it admitted of the possibility of there being exceptional cases and provided that it was not applied in such a way as to preclude the authority from the need to examine each individual application.
As I have indicated, however, those provisos were not here satisfied.”
“Sometimes the phrase is used to denote a substantive right: an entitlement that the claimant asserts cannot be denied him. It was used in this sense and the assertion upheld in cases such as R v Sec of State for the Home Dept ex p. Khan  1 WLR 1337 … These various authorities show that the claimant’s right will only be found established when there is a clear and unambiguous representation upon which it was reasonable for him to rely.”
“[I]n principle, the Secretary of State, if he undertakes to allow in persons if certain conditions are satisfied, should not in my view be entitled to resile from that undertaking without affording interested persons a hearing and then only if the overriding public interest demands it.”
MR JUSTICE WILSON: For the reasons articulated in a written judgment, which was disseminated to counsel on the day before yesterday, I quash the decision of the defendant's review panel, dated 29 June 2001, relating to the claimant's application for entry on the defendant's housing register. But, the application for a declaration of unlawfulness, in relation to the defendant's policy in relation to entry thereon, such as was adopted on 26 June 2001, will be refused. Subject to anything that is said at this short hearing, the written judgment will be the definitive judgment.
Yes, Mr Colville?
MR COLVILLE: May it please your Lordship, I appear for the claimant. My learned friend, Mr Litton, appears on behalf of the defendants. My Lord, I would ask for, in light of your Lordship's judgment, a quashing of the decision of the review panel and that there be an order that the defendants do pay the claimant's costs of this application? The claimant is publicly assisted and there should also be an order that the claimant's costs be subject to detailed assessment in the normal form.
MR JUSTICE WILSON: Thank you, Mr Colville. Mr Litton, what do you want to say about costs?
MR LITTON: I cannot say anything about costs, subject to the usual legal aid order being made.
MR JUSTICE WILSON: Then I order that the defendants do pay the claimant's costs of and incidental to the claim, to be the subject of detailed assessment on the standard basis. I also direct that, in that the claimant is publicly funded, there be a detailed assessment for that purpose also. Yes.
MR LITTON: My Lord, I do have, however, an application for permission to appeal. My Lord, I make that application having in mind Part 52.3(6) of the CPR which requires, of course, permission to appeal only to be given where either the court considers the appeal has a real prospect of success, or there is some other compelling reason why the appeal should be heard.
My Lord, I make my application for permission on both those grounds. In summary form, my Lord, I make two points. My Lord, the first point is that at the beginning of paragraph 27, where your Lordship dealt with the submissions advanced by Miss Lieven in relation to the House of Lords' decision in Mohammed, in my submission, your Lordship did come to an erroneous conclusion that the decision of the House of Lords should not be applied or reflected in a common law requirement to apply facts, whatever policy is then in force, at the date of the review decision.
My Lord, in my submission, that is a principle which the House of Lords has established through that case and, with respect, it should have been applied in the analogous situation which arose in the present case. Allied to that, my Lord, albeit possibly a discrete point, is the apparent inconsistency between your Lordship's finding that the policy itself was lawful, albeit that its application could be unlawful if it excluded the exceptional case. But, my Lord, on the basis that such a policy is lawful, in my submission it is inconsistent with the direction that at least is inferred from paragraph 29, and that on the redetermination of this case it should be only the old policy that is applied to the redetermination, as opposed to the new policy. Subject to the caveat, that is a policy which allows for the exceptional case.
Now, whether or not this is an exceptional case will then clearly have to be determined in the redetermination of the question: whether or not she should go on the housing register. But, in my submission, it is erroneous to direct that only the old policy should apply to that decision, when the policy in your Lordship's own finding is itself also subject to the caveat. So, my Lord, I say that there is a real prospect that an appeal would succeed on either or both of those grounds.
Secondly, my Lord, it does give rise to a compelling reason, which is fundamental to the way in which local authorities take decisions. My Lord, the import of your Lordship's decision is, in effect, that where there is a policy in respect of which there is a legitimate expectation, there is little or no possibility from a local authority reviewing its policy and applying it at a later date. My Lord, that would be inconsistent, in my submission, with the way in which administrative law decisions are taken. Certainly inconsistent with the way the House of Lords approached the issue in Mohammed, and would cause very real concern, not just to this local authority but any local authority which was required to look at matters of this nature at the review panel or, possibly, if such a decision was quashed, for whatever reason, on a redetermination following the quashing of such a decision.
So, my Lord, on those bases, I do say that there is both a real prospect that the appeal would succeed and, indeed, that the matter is one of general public importance in relation to decision-making by local authorities, not merely in relation to this particular context but all decision-making by local authorities in the administrative law context.
My Lord, on that basis, I do invite your Lordship to grant permission for this matter to go to the Court of Appeal?
MR JUSTICE WILSON: Mr Litton, thank you very much indeed. Mr Colville?
MR COLVILLE: Your Lordship, on the first point, as far as paragraph 27 is concerned, your Lordship has dealt with the arguments and has made a clear finding, and made a clear decision on the arguments that were presented by Miss Lieven. On the test of reasonable prospect of success, your Lordship has dealt with it and has come to a conclusion that your Lordship has there in that paragraph. Indeed, your Lordship, it is not, in my submission, a basis on which permission should be granted.
But, my Lord, on the second point, as far as the inconsistency that my learned friend has sought to draw inference on from the judgment. My Lord, looking at the order that your Lordship has made, namely to quash the decision, the order does not require, nor is it a declaration requiring the authority to determine the application in accordance with the old policy. Your Lordship - by virtue of the order that has just been made - has quashed the decision and that must now be the subject of further consideration by the authority. It is for them to make the decision whether any further decision itself may be the subject of further challenge, depending how they deal with the matter. Your Lordship has clearly given direction in that respect. It is not part of the order. Therefore, my Lord, it is on that ground, of which my learned friend seeks permission to appeal, it does not, in my submission, form a basis for which permission should be granted.
My Lord, finally, the fundamental principle that my learned friend has referred to in respect of the wider issue of the authorities amending policies and application of the amended policy. My Lord, the decision that your Lordship has made is on the facts and the way in which the authority dealt with the application in the context of its amended policy and in the light of the facts and the circumstances of this case. The wider issue that my learned friend seeks to rely upon in seeking permission, my Lord, does not arise. Therefore, permission should not be granted.
MR JUSTICE WILSON: Thank you, Mr Colville. Mr Litton, do you want to come back on any of that?
MR LITTON: My Lord, I do not think I can expand save this, with respect. It is clear in terms of paragraph 9 of the judgment that the effect of that is that the local authority must necessarily apply the old policy, and implicit in that is the exclusion of its consideration on the new policy, albeit that is a lawful policy. That, in my respectful submission, is an inconsistency which is not reconcilable. So, my Lord, beyond that.
MR JUSTICE WILSON: Thank you very much indeed. Speaking for myself, and obviously subject to the better view of the Court of Appeal, I think that the decision in Mohammed, referable to looking at facts at the time of review, is clearly distinguishable from a question as to whether it should be the policy adopted at the time of review which should always be applied.
As to Mr Litton's proposed second point. He suggests that there is a conflict in the judgment between a conclusion, a general conclusion, that the new policy is lawful, so long as it is not applied inflexibly, and the conclusion at the end that in the particular circumstances the panel should apply the old policy. I, for my part, see no such conflict, and I think I have explained in detail why the doctrine of legitimate expectation, arising in the mind of the claimant from what the defendant said, is the explanation for my conclusion that it should in her case be the old policy that should, albeit flexibly, be applied.
Then Mr Litton posits wide-ranging ramifications in the long term from the decision. I have, of course, left open deliberately what might happen in the event that applying the old policy the defendant concluded that the claimant should be entered on their housing register, and that later the defendants might, on application of the new policy, want to look at that again. Of course, as I said in paragraph 28, any application of the new policy at that stage would have to be applied flexibly. Speaking for myself, I do not see the great complexities or difficulties that Mr Litton posits stemming from this decision, which is based in particular upon, and obviously upon, the way in which the defendants treated this claimant and their representations to her as to the matters which would be weighed in the review.
Subject to the better view of the Court of Appeal, I do not think that any appeal would here have realistic prospects of success, nor that there is any other matter of principle which should lead me to grant permission. Mr Litton's clients must renew their application, if so advised, in the Court of Appeal.
MR LITTON: My Lord, thank you. I have a further application that, in essence, flows from that. That is simply a timing issue in relation to any renewed application. Ordinarily, my Lord, we would be required to make that application to the Court of Appeal, including an application for permission, within 14 days. Clearly we would, in that application, also be required to identify precisely the grounds of appeal. My Lord, the reason why I am taking this judgment, as opposed to Miss Lieven, is that she is not available. I do not know if she is available this week. I am afraid that the mechanisms inherent in local government are not as speedy as those that apply outside of local government, not always anyway. I do have instructions that were we to be required to renew that application within 14 days that is going to cause some difficulty in terms of the decision-making process, advice having to be taken as to precisely the grounds of appeal and the formulation of those grounds of appeal if we were restricted to 14 days.
MR JUSTICE WILSON: What is the rule that prescribes the 14 days, Mr Litton?
MR LITTON: My Lord, it is Part 52.4, my Lord, if you have the autumn 2001 edition of the White Book?
MR JUSTICE WILSON: Yes, I do.
MR LITTON: Page 986.
MR JUSTICE WILSON: Thank you. So I have power to extend the 14 days.
MR LITTON: Indeed, my Lord.
MR JUSTICE WILSON: And you ask me to do so to a limited extent?
MR LITTON: My Lord, yes. What I would ask for is 28 days, which will allow the local authority to go through the decision-making process in a proper way and the time to be extended by that additional 14 days to allow the grounds to be properly formulated, after advice has been taken, as is required, because that may be necessary to have included in the application or the notice of appeal, which necessarily includes the application for permission.
MR JUSTICE WILSON: I see. Thank you, Mr Litton. Mr Colville, any views on this?
MR COLVILLE: My Lord, yes, I would resist any grant of an extension beyond the 14-day period, the reason being is that it further delays the resolution of this matter and, my Lord, the claimant is still waiting for her application to be determined. Any further delay by extending it a further 14 days is unjustified, in my submission, and causes her further prejudice.
My Lord, the only reason that has been given by my learned friend for seeking to extend the 14 days is because of the difficulty of the local authority, the local authority being able to take advice on their needs and to discuss them and to agree. My Lord, that clearly can be done as a matter of urgency. Local authorities can call urgent meetings and, in particular, in this case, the authority having adopted a cabinet style, therefore the complexities of calling urgent meetings is not as difficult as it would be if it were under the old structure.
My Lord, that being the case, there is no justification for extending the 14 day period. The normal course should follow, namely that the appellant's notice must be filed within 14 days.
MR JUSTICE WILSON: Thank you, Mr Colville.
MR LITTON: My Lord, can I just say this, my Lord, perhaps I should have said this first time round, if you look at the notes to Part 52.4.2, you will see, my Lord, that at 52.4.3 that it does say that an example for a good reason for seeking a modest extension of time may be the appellant, through not fault of his own, has an unwieldy decision-making process, such as a board of trustees may need to be convened. My Lord, although it is not a broad of trustees, nonetheless it is a local authority and----
MR JUSTICE WILSON: Is it an unwieldy decision-making process?
MR LITTON: My Lord, I have taken specific instructions in relation to this with the head of Legal Services and she was aware, as a result of my discussions with her, that the normal period is 14 days. I asked for specific instructions as to whether or not it was not impossible or possible, but whether it would be difficult to do in 14 days. My instructions are that it is not impossible but, nonetheless, it would be difficult and, therefore, they would seek the extension to allow that matter to be done in a slightly less rushed and hurried way then if the strict 14-day period is applied.
MR JUSTICE WILSON: So it is not put on the basis of Miss Lieven's other professional commitments?
MR LITTON: My Lord, I simply do not know what her professional commitments are next week. What I can say is that she is presently at an inquiry today, she was yesterday, which is out of London, and therefore it makes it impossible for her to attend today. I am afraid I do not know what her commitments are for tomorrow. I simply do not know how quickly she is going to be able to advise in relation to the merits of an appeal and settle those grounds of appeal and then, on the basis of that advice, how quickly it is going to take the local authority to take a decision, whether it is executive or it is a council decision based upon that advice. All I can say is that I had taken specific instructions and must say that it was not said to me that it is impossible, it would be difficult to do it in that time frame. So, my Lord, I do ask for a modest extension of 14 days for that process to be gone through in its proper way.
MR JUSTICE WILSON: Thank you, Mr Litton. Mr Litton's request for an extension is not a particularly strong one. There must be many occasions when Charnwood have to address a problem urgently. There is also apparently a problem, not surprisingly, about Miss Lieven's other commitments. I think he just about justifies my giving him an extra week. I do not see that as prejudicing the claimant in any way. So I am going to direct that the time for filing of any appeal notice under rule 52.4 be extended to 7th February 2002. Anything else, Mr Litton?
MR LITTON: No, I am grateful.
MR JUSTICE WILSON: Thank you very much.