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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> WB v W District Council [2018] EWCA Civ 928 (26 April 2018) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2018/928.html Cite as: [2018] WLR(D) 256, [2019] QB 625, [2018] 3 WLR 2035, [2018] EWCA Civ 928 |
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ON APPEAL FROM
Norwich Combined Court Centre
His Honour Judge Moloney QC
A00NR652
Strand, London, ![]() ![]() |
||
B e f o r e :
LORD JUSTICE LEWISON
and
LADY JUSTICE ASPLIN
____________________
![]() ![]() |
Appellant |
|
- and - |
||
![]() ![]() ![]() ![]() ![]() | Respondent |
|
- and- |
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Equality & Human Rights Commission |
Intervener |
____________________
Westgate
QC & Michael Marsh-Hyde (instructed by Shelter Legal Services) for the Appellant
Wayne
Beglan (instructed by
W
Council)
for the Respondent
Helen Mountfield QC (instructed by the Equality & Human Rights Commission) filed written
submissions
Hearing date: 24 January 2018
____________________
VERSION
OF JUDGMENT APPROVED
Crown Copyright ©
LADY JUSTICE ARDEN :
Main housing duty
15. If homelessness is not successfully prevented or relieved, a housing authoritywill
owe the main housing duty to applicants
who
are eligible, have a priority need for accommodation and are not homeless intentionally. Certain categories of household, such as pregnant
women,
families
with
children, and households that are homeless due to an emergency such as a fire or flood, have priority need if homeless. Other groups may be assessed as having priority need because they are
vulnerable
as a result of old age, mental ill health, physical disability, having been in prison or care or as a result of becoming homeless due to domestic abuse.
16. Under the main housing duty, housing authorities must ensure that suitable accommodation is available for the applicant and their household until the duty is brought to an end, usually through the offer of a settled home. The duty can also be brought to an end for other reasons, such as the applicant turning down a suitable offer of temporary accommodation or because they are no longer eligible for assistance. A suitable offer of a settled home (whether
accepted or refused by the applicant)
which
![]()
would
bring the main housing duty to an end includes an offer of a suitable secure or introductory tenancy
with
a local authority, an offer of accommodation through a private registered provider (also known as a housing association) or the offer of a suitable tenancy for at least 12 months from a private landlord made by arrangement
with
the local authority. (Italics added)
Ex parte Ferdous Begum
The priority need of the disabled is dealtwith
in section 59(1)(c)
which
I
will
set out again:
"a personwho
is
vulnerable
as a result of old age, mental illness or handicap or physical disability or other special reason, or
with
![]()
whom
such a person resides or might reasonably be expected to reside…"
Manyvulnerable
people are cared for in the community by their relatives or other good-hearted people
with
![]()
whom
they live. If such a "carer" should have the misfortune to become homeless then section 59(1)(c) gives him the status of priority need, and provided his homelessness
was
not intentional, he
will
qualify for an offer of accommodation
which
![]()
will
enable him to continue to look after the
vulnerable
person.
Other people althoughvulnerable
are nevertheless able to lead an independent existence, albeit sometimes in sheltered accommodation, these people also have the status of priority need and can apply for assistance if they are homeless but not intentionally so.
When
they are made the offer of accommodation they can decide
whether
or not to accept it.
But I can see no purpose in making an offer of accommodation to a person so disabled that he is unable to comprehend or evaluate the offer. In myview
it is implicit in the provisions of the Act that the duty to make an offer is only owed to those
who
have the capacity to understand and respond to such an offer and if they accept it to undertake the responsibilities that
will
be involved.
Persons making an application
18.8 An application can be made by any individualwho
has the mental capacity to do so. There is no statutory minimum age, but applications from dependent children should not be considered. A child aged 16-17 may make an application in their own right, and
will
require a Children Act 1989 assessment to be completed if they are homeless.
The procedural tangle behind this appeal
Intervention by the Equality and Human Rights Commission
SUBMISSIONS AND DISCUSSION
Appellant's three arguments
Interpretation of legislation.
3 (1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in away
![]()
which
is compatible
with
the Convention rights.
(2) This section—
(a) applies to primary legislation and subordinate legislationwhenever
enacted;
(b) does not affect thevalidity,
continuing operation or enforcement of any incompatible primary legislation; and
(c) does not affect thevalidity,
continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents removal of the incompatibility.
(1) The obsolescence argument and (2) the Human Rights Interpretation
an indispensable foundation uponwhich
to decide
what
is the law and its application to individual cases. It provides at least some degree of certainty upon
which
individuals can rely in the conduct of their affairs, as
well
as a basis for orderly development of legal rules (Practice Statement (Judicial Precedent) [1966] 1
WLR
1234)
If the court implieswords
that are consistent
with
the scheme of the legislation but necessary to make it compatible
with
Convention rights, it is simply performing the duty
which
Parliament has imposed on it and on others. It is reading the legislation in a
way
that draws out the full implications of its terms and of the Convention rights. And, by its
very
nature, an implication
will
go
with
the grain of the legislation. By contrast, using a Convention right to read in
words
that are inconsistent
with
the scheme of the legislation or
with
its essential principles as disclosed by its provisions does not involve any form of interpretation, by implication or otherwise. It falls on the
wrong
side of the boundary between interpretation and amendment of the statute.
I fear that I am also unimpressed by the argument thatwe
should not disturb
what
has been understood to be the law since the decision of the Court of Appeal in Mohamed
v
Manek (1995) 94 LGR 211, followed in Desnousse
v
Newham London BC [2006] EWCA Civ 547, [2007] 2 All ER 218, [2006] QB 831. There is no question of Parliament having passed legislation on the basis that the law as stated by the Court of Appeal is correct. The 1977 Act has not been repealed and re-enacted so as to invoke the principle in Barras
v
Aberdeen Steam Trawling and Fishing Co Ltd [1933] AC 402, [1933] All ER Rep 52. The most that can be said is that Parliament might have amended the 1977 Act so as to reverse or modify the Court of Appeal's decision, if it did not like it, but has not done so.
Current law on decision making about where
to live for a person
who
lacks capacity
(6) A deputy is to be treated as P's agent in relation to anything done or decided by himwithin
the scope of his appointment and in accordance
with
this Part.
Does HRA s 3 (court's interpretative duty) now apply?
(3) The "Narrow Ratio" argument
Disposal of this appeal
LORD JUSTICE LEWISON
The fact is, and I hope itwill
never be necessary to say so again, that, in the hierarchical system of courts
which
exists in this country, it is necessary for each lower tier, including the Court of Appeal, to accept loyally the decisions of the higher tiers.
Where
decisions manifestly conflict, the decision in Young
v
Bristol Aeroplane Co Ltd [1944] KB 718 offers guidance to each tier in matters affecting its own decisions. It does not entitle it to question considered decisions in the upper tiers
with
the same freedom.
In a common law system,where
the law is in some areas made, and the law is in
virtually
all areas developed, by judges, the doctrine of precedent, or as it is sometimes known stare decisis, is fundamental. Decisions on points of law by more senior courts have to be accepted by more junior courts. Otherwise, the law becomes anarchic, and it loses coherence clarity and predictability.
It has to be reaffirmed that the only judicial means bywhich
decisions of this House can be reviewed is by this House itself, under the declaration of 1966.
To sum up on this part of the case: (1) the maxim in the form "cessante ratione cesset ipsa lex" reflects one of the considerationswhich
your Lordships
will
![]()
weigh
in deciding
whether
to overrule, by
virtue
of the 1966 declaration, a previous decision of your Lordships' House; (2) in relation to courts bound by the rule of precedent the maxim "cessante ratione cessat ipsa lex," in its literal and
widest
sense, is misleading and erroneous; (3) specifically, courts
which
are bound by the rule of precedent are not free to disregard an otherwise binding precedent on the ground that the reason
which
led to the formulation of the rule embodied in such precedent seems to the court to have lost cogency; (4) the maxim in reality reflects the process of legal reasoning
whereby
a previous authority is judicially distinguished or an exception is made to a principal legal rule; (5) an otherwise binding precedent or rule may, on proper analysis, be held to have been impliedly overruled by a subsequent decision of a higher court or impliedly abrogated by an Act of Parliament, but this doctrine is not accurately reflected by citation of the maxim "cessante ratione cessat ipsa lex..
We
are conscious that it may seem a strong thing for this court to hold thus of a rule established by the House of Lords, albeit one enfeebled by exceptions, the statutory support
which
gave it life at last turned off. But
where
it can see that the decision of the higher court has become obsolete, the lower court, if it is not to deny justice to the parties in the suit, is bound to say so and to act accordingly.
(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in away
![]()
which
is compatible
with
the Convention rights.
(2) This section—
(a) applies to primary legislation and subordinate legislationwhenever
enacted…
One of the most striking effects of the HRA has been its impact on the law of precedent…. Itwill
always be open to a court to refuse to follow authority on the basis that those decisions are not compatible
with
Convention rights. Consequently a magistrates' court may decline to follow a relevant decision of the House of Lords on the ground that the House of Lords decision cannot stand as a result of the HRA.
As Lord Hailsham observed [in Broomev
Cassell & Co Ltd] "in legal matters, some degree of certainty is at least as
valuable
a part of justice as perfection". That degree of certainty is best achieved by adhering, even in the Convention context, to our rules of precedent. It
will
of course be the duty of judges to review Convention arguments addressed to them, and if they consider a binding precedent to be, or possibly to be, inconsistent
with
Strasbourg authority, they may express their
views
and give leave to appeal, as the Court of Appeal did here. Leap-frog appeals may be appropriate. In this
way,
in my opinion, they discharge their duty under the 1998 Act. But they should follow the binding precedent, as again the Court of Appeal did here.
But therewere
other considerations
which
made X
v
Bedfordshire a
very
exceptional case. Judgment
was
given in 1995,
well
before the 1998 Act. No reference
was
made to the European Convention in any of the opinions. And, importantly, the
very
children
whose
claim in negligence the House had rejected as unarguable succeeded at Strasbourg in establishing a breach of article 3 of the Convention and recovering
what
![]()
was,
by Strasbourg standards,
very
substantial reparation: Z
v
United Kingdom (2001) 34 EHRR 97. On these extreme facts the Court of Appeal
was
entitled to hold, as it did in para 83 of its judgment in D, that the decision of the House in X
v
Bedfordshire, in relation to children, could not survive the 1998 Act. But such a course is not permissible save
where
the facts are of that extreme character.
We
have come to the conclusion that their Lordships intended to give the Court of Appeal
very
limited freedom, only in the most exceptional circumstances, to override
what
![]()
would
otherwise be the binding precedent of the decision of the House. They clearly required more than the bare fact of the same parties being involved in order to bring the case
within
the
very
narrow confines of the
very
exceptional case, one of an extreme character, or of
wholly
exceptional circumstances,
with
the emphasis added by us to phrases from their Lordships' speeches.
We
are not seeking to be released from these strictures. The structure of judicial precedent, designed over the years, has served us
well.
The decisions of the European Court do not bind us. The decisions of the House of Lords do. By-passing or finding an alternative route around the decisions of the House of Lords, on the basis of the jurisprudence of the European Court
would,
in the ultimate analysis, be productive of considerable uncertainty. Therefore if the strictures are too tight, it is their Lordships
who,
if they think it appropriate, must release the knot. As it is, and in any event,
we
cannot bring this case
within
the required degree of exceptionality.
129 If the Protection from Eviction Act 1977 contained an express provision about accommodation provided under PartVII
of the 1996 Act, in section 3A, it
would
not be open to the court to override that. At most the court could make a declaration of incompatibility. The court
would
be likely to be strongly influenced … by the express provision as being the explicit choice, likely to be presumed to be legitimate and proportionate, resulting from the democratic process.
130 Here, however, the exception arises not from an express statutory provision but from a previous decision of the Court of Appeal, binding as a precedent apart from the fact that the law as regards statutory construction has changed in the meantime because of section 3 of the Human Rights Act 1998. That makes a different construction of the Protection from Eviction Act possible. (Emphasis added)
Accordingly I conclude that a reading of section 3 of the Protection from Eviction Act 1977which
does not allow it to extend to the recovery of possession from someone in the position of the claimant is not compatible
with
her Convention rights under article 8. I
would
therefore hold that, although Mohamed
v
Manek is otherwise a binding authority on the point, the effect of section 3 of the Human Rights Act 1998 is that, in order to ensure compatibility
with
an occupier's right to respect for his or her home under article 8, from 2 October 2000,
where
a person is in residential occupation of self-contained accommodation under a licence, the application of section 3 of the Protection from Eviction Act 1977 is not excluded by the fact of the accommodation having been made available in pursuance of a local housing authority's duties under section 188(1) or section 190(2)(a) of the Housing Act 1996 . That situation not being excluded from the 1977 Act by section 3A, it follows that a court order
was
necessary before the claimant could be made to leave.
First, the interpretative obligation under section 3 is avery
strong and far reaching one, and may require the court to depart from the legislative intention of Parliament. Secondly, a Convention-compliant interpretation under section 3 is the primary remedial measure and a declaration of incompatibility under section 4 an exceptional course. Thirdly, it is to be noted that during the passage of the Bill through Parliament the promoters of the Bill told both Houses that it
was
envisaged that the need for a declaration of incompatibility
would
rarely arise. Fourthly, there is a limit beyond
which
a Convention-compliant interpretation is not possible, such limit being illustrated by R (Anderson)
v
Secretary of State for the Home Department [2003] 1 AC 837 and Bellinger
v
Bellinger (Lord Chancellor intervening) [2003] 2 AC 467. In explaining
why
a Convention-compliant interpretation may not be possible, members of the committee used differing expressions: such an interpretation
would
be incompatible
with
the underlying thrust of the legislation, or
would
not go
with
the grain of it, or
would
call for legislative deliberation, or
would
change the substance of a provision completely, or
would
remove its pith and substance, or
would
![]()
violate
a cardinal principle of the legislation (paras 33, 49, 110-113, 116). All of these expressions, as I respectfully think, yield
valuable
insights, but none of them should be allowed to supplant the simple test enacted in the Act: "So far as it is possible to do so ..." (Emphasis added)
There is nothing in the Act to demonstrate that section 62 is substantive rather than procedural and provides hurdles of mental capacity to surmount before an application can be accepted. On the contrary, section 59(1)(c) contemplates that applicationswill
be made by those under a disability or
who
are
vulnerable.
Such legislation is in accord
with
the expressed policy of government departments to accept
within
the community those
who
might in former days have been shut away in long stay institutions. I cannot construe from the statute any indication that a line has to be drawn among those targeted by section 59(1)(c) according to degrees of mental capacity less than the normal capacity to make an application. The purpose of the framework of the overall legislation is to include those
with
mental illness or handicap
without
reference to a definable cut-off point of mental capacity.
In myview
an application may be made under section 59(1)(c) by a person
with
capacity to make it, or by another
with
the consent of the applicant, or by someone on behalf of a person
who
is entitled to make an application but is unable through mental incapacity to make or consent to the making of an application. In the latter case the
writer
or maker of the application on behalf of another must demonstrate reasonable grounds for making the application and for acting on behalf of the actual applicant and that he is acting bona fide in the interests of the person unable to act
without
such help. An application by a
well-meaning
busybody
would
not be an acceptable application under section 62.
(2) A lasting power of attorney is not created unless—
(a) …,
(b) an instrument conferring authority of the kind mentioned in subsection (1) is made and registered in accordancewith
Schedule 1, and
(c) at the timewhen
P executes the instrument, P has reached 18 and has capacity to execute it.
LADY JUSTICE ASPLIN:
AND UPON SCouncil
confirming that it
will
continue to use all its best endeavours to seek to persuade and support
WB
to move into such accommodation and accept such support as set out in the declarations at paragraphs 1-2 below, including going to
visit
such accommodation
with
her and
working
together
with
her advocate
AND UPON the court having previously made final declarations pursuant to section 15 of the [MCA] on 21 September 2015 that MsWB
lacks capacity to conduct these proceedings and to make decisions about
where
she should live, her care needs, and to enter into a tenancy agreement
IT IS ORDERED AND DECLARED pursuant to section 16 of the [MCA] that:-
1. It is the best interests ofWB
in the short to medium term that she reside in currently available supported accommodation managed by A Trust ("XX Road").
2. It is in the best interests ofWB
that she reside in accommodation managed by SS Ltd
when
such accommodation becomes available, or such suitable alternative supported living accommodation as my become available in the future.
3. In the event that, forwhatever
reason,
WB
does not reside in accommodation at XX Road or provided by SS Ltd or an alternative supported living provider pursuant to paragraphs 1 to 2 above, it is in the best interest of
WB
that she reside in general needs housing (if available and offered to her), provided by
W
![]()
Council,
![]()
with
support from S
Council
in accordance
with
a care plan.
4. An officer of SCouncil
is permitted to enter into a tenancy agreement on behalf of
WB
to give effect to any of the declarations at paragraph 1 to 3 above.
5. Nothing in paragraphs 1-3 of this order compelsWB
to accept an offer of accommodation from those providers, or authorises an officer of S
Council
to enter into a tenancy agreement on
WB's
behalf unless this is in accordance
with
her
wishes and feelings.