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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Davis v Watford Borough Council [2018] EWCA Civ 529 (20 March 2018)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2017/529.html
Cite as: [2018] HLR 24, [2018] 1 WLR 3157, [2018] WLR 3157, [2018] EWCA Civ 529, [2018] WLR(D) 190

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Neutral Citation Number: [2018] EWCA Civ 529
Case No: C1/2015/3678

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
MR JUSTICE MITTING
CO/5316/2015

Royal Courts of Justice
Strand, London, WC2A 2LL
20/03/2018

B e f o r e :

LORD JUSTICE DAVIS
THE
SENIOR PRESIDENT OF TRIBUNALS
and
LORD JUSTICE SALES

____________________

Between:
DAVIS
Appellant
- and -

WATFORD BOROUGH COUNCIL
Respondent

____________________

Toby Vanhegan and Riccardo Calzavara (instructed by Arkrights Solicitors) for the Appellant
Michael Paget and Zoë Whittington (instructed by Watford Borough Council) for the Respondent
Hearing date: March 1 2018

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Lord Justice Davis:

    Introduction:

  1. This appeal involves a point of statutory interpretation. The provision in question is s. 204A of the Housing Act 1996, as amended ("the 1996 Act"). The point is said to be of some potential wider importance. It involves considering whether, in the circumstances of a case such as this, it is the High Court or the County Court which has jurisdiction to determine a challenge to a decision on the part of a Local Authority to refuse to provide interim accommodation pursuant to s. 204(4) of the 1996 Act.
  2. By a decision made on 5 November 2015 in the High Court, in judicial review proceedings commenced (in the Administrative Court) by the claimant, Mitting J decided that such a challenge should have been, and should be, made in the County Court. In consequence, he refused the claimant permission to apply for judicial review. The claimant appealed to this court. On 19 May 2016 Longmore LJ granted permission to apply for judicial review and directed that the claim be retained in the Court of Appeal for substantive decision.
  3. In the light of subsequent events the issue has in point of fact become academic so far as the claimant is concerned. However, because the appeal raised a point of statutory interpretation of potential wider importance it was directed by my Lord, the Senior President of Tribunals, on 8 December 2017 that, exceptionally, the matter should be permitted to proceed to a final hearing.
  4. Before us the claimant was represented by Mr Vanhegan and Mr Calzavara. The respondent Local Authority was represented by Mr Paget and Ms Whittington. I would like to acknowledge the thorough and careful arguments presented to us.
  5. The legislative regime

  6. In order to make any sense of the point that has arisen it is necessary at the outset to set out the relevant statutory provisions, which are to be found in Part VII of the 1996 Act in so far as it relates to England.
  7. By s. 184 it is, in the relevant respects, provided as follows:
  8. "Inquiry into cases of homelessness or threatened homelessness.
    (1) If the local housing authority have reason to believe that an applicant may be homeless or threatened with homelessness, they shall make such inquiries as are necessary to satisfy themselves—
    (a) whether he is eligible for assistance, and
    (b) if so, whether any duty, and if so what duty, is owed to him under the following provisions of this Part.
    (2) They may also make inquiries whether he has a local connection with the district of another local housing authority in England, Wales or Scotland.
    (3) On completing their inquiries the authority shall notify the applicant of their decision and, so far as any issue is decided against his interests, inform him of the reasons for their decision."
  9. Section 188 provides as follows:
  10. "Interim duty to accommodate in case of apparent priority need.
    (1) If the local housing authority have reason to believe that an applicant may be homeless, eligible for assistance and have a priority need, they shall secure that accommodation is available for his occupation pending a decision as to the duty (if any) owed to him under the following provisions of this Part.
    (1A) But if the local housing authority have reason to believe that the duty under section 193 (2) may apply in relation to an applicant in the circumstances referred to in section 195A (1), they shall secure that accommodation is available for the applicant's occupation pending a decision of the kind referred to in subsection (1) regardless of whether the applicant has a priority need.
    (2) The duty under this section arises irrespective of any possibility of the referral of the applicant's case to another local housing authority (see sections 198 to 200).
    (3) The duty ceases when the authority's decision is notified to the applicant, even if the applicant requests a review of the decision (see section 202).
    The authority may secure that accommodation is available for the applicant's occupation pending a decision on a review."

    Thus the duty arising under s. 188 (1) arises in a "reason to believe" scenario. That duty ceases to apply in the circumstances set out in s. 188 (3); but a power to provide accommodation is then conferred, pending a decision on a review. Sections 189 and 193 then deal respectively with those who are in priority need of accommodation and who are not homeless intentionally.

  11. The right to request a review of a decision is conferred by s. 202. It is to be exercised within 21 days of notification of the decision in question (or such longer period as the authority may allow). Where a request is duly made, the authority concerned is obliged, by s. 202 (4), to review the decision.
  12. Section 203 then provides for the procedure to be followed in connection with a review under s. 202. Provision is also made for the Secretary of State to make regulations in this respect. This was effected by the Allocation of Housing and Homeless (Review Procedures) Regulations 1999: which among other things, by Regulation 9, provide for a period of eight weeks in which most ordinary review decisions are to be made. Section 203 (3) requires that the applicant be notified of the decision on the review. This is provided by s. 203 (5):
  13. "(5) In any case they shall inform the applicant of his right to appeal to the county court on a point of law, and of the period within which such an appeal must be made."
  14. Central to the arguments before us are s. 204 and s. 204A: the latter having been introduced, by amendment, by s. 11 of the Homelessness Act 2002. Section 204 provides as follows:
  15. "Right of appeal to county court on point of law.
    (1) If an applicant who has requested a review under section 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 section 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.
    (2) An appeal must be brought within 21 days of his being notified of the decision or, as the case may be, of the date on which he should have been notified of a decision on review.
    (2A) The court may give permission for an appeal to be brought after the end of the period allowed by subsection (2), but only if it is satisfied—
    (a) where permission is sought before the end of that period, that there is a good reason for the applicant to be unable to bring the appeal in time; or
    (b) where permission is sought after that time, that there was a good reason for the applicant's failure to bring the appeal in time and for any delay in applying for permission.
    (3) On appeal the court may make such order confirming, quashing or varying the decision as it thinks fit.
    (4) Where the authority were under a duty under section 188, 190 or 200 to secure that accommodation is available for the applicant's occupation, or had the power under section 19 (8) to do so, they may secure that accommodation is so available—
    (a) during the period for appealing under this section against the authority's decision, and
    (b) if an appeal is brought, until the appeal (and any further appeal) is finally determined."

    Section 204A provides as follows:

    "Section 204(4): appeals
    (1) This section applies where an applicant has the right to appeal to the county court against a local housing authority's decision on a review.
    (2) If the applicant is dissatisfied with a decision by the authority—
    (a) not to exercise their power under section 204 (4) ("the section 204(4) power") in his case;
    (b) to exercise that power for a limited period ending before the final determination by the county court of his appeal under section 204 (1) ("the main appeal"); or
    (c) to cease exercising that power before that time,
    he may appeal to the county court against the decision.
    (3) An appeal under this section may not be brought after the final determination by the county court of the main appeal.
    (4) On an appeal under this section the court—
    (a) may order the authority to secure that accommodation is available for the applicant's occupation until the determination of the appeal (or such earlier time as the court may specify); and
    (b) shall confirm or quash the decision appealed against,
    and in considering whether to confirm or quash the decision the court shall apply the principles applied by the High Court on an application for judicial review.
    (5) If the court quashes the decision it may order the authority to exercise the section 204 (4) power in the applicant's case for such period as may be specified in the order.
    (6) An order under subsection (5)—
    (a) may only be made if the court is satisfied that failure to exercise the section 204 (4) power in accordance with the order would substantially prejudice the applicant's ability to pursue the main appeal;
    (b) may not specify any period ending after the final determination by the county court of the main appeal."
  16. Those, then, are the salient parts of the legislative scheme for present purposes.
  17. Facts

  18. The claimant, Mr Oliver Davis, has had troubles in his life. He was born on 5 October 1976. It is said that his childhood was marked by episodes of physical abuse. There have been psychiatric issues; physical, personal and health issues; and, in particular, problems with alcohol.
  19. On 29 August 2014 he applied to the respondent for homelessness assistance. By a detailed decision letter dated 8 December 2014 the respondent decided that he was not in priority need: that decision being made under s. 184 of the 1996 Act. He in due course, through his solicitors, made a request for review of that decision. Lengthy representations were periodically presented. Ultimately, on 31 August 2015 the respondent sent a detailed letter indicating that it was "minded to" uphold the original decision that the claimant did not have a priority need.
  20. At this time, therefore, the respondent still had not made, let alone notified, its actual decision on the review. On 27 October 2015 the claimant then lodged an appeal in the County Court, under s. 204 of the 1996 Act, seeking to challenge as unlawful the original s. 184 decision of 8 December 2014 (there at this stage being no notified decision on the review to challenge). In the meantime, however, he had, as we were told, been housed in temporary accommodation.
  21. The claimant also, through his solicitors, requested interim accommodation pending determination of his s. 204 appeal to the County Court. The respondent refused to provide this; and a detailed pre-action protocol letter for the purposes of a judicial review claim was sent on 28 October 2015. At this time, the claimant's temporary accommodation had been extended to 29 October 2015 but no further.
  22. The respondent then responded to this letter on the following day, 29 October 2015, setting out in some detail its reasons – in a form plainly and explicitly designed to reflect the decision in R v Camden LBC ex p. Mohammed (1998) 30 HLR 189 – for refusing the request for interim accommodation and for declining, as it put it in the concluding sentence, "to exercise its discretion under section 188 (3) of the Act in your client's favour."
  23. In the light of that, the claimant issued judicial review proceedings in the High Court (Administrative Court) on 3 November 2015. The claim sought reconsideration of the decision of 29 October 2015. It also sought interim relief in the form of provision of suitable accommodation.
  24. The proceedings in the Administrative Court

  25. On 3 November 2015, Wilkie J, on an ex parte basis, made an order that suitable accommodation be provided for the claimant. He gave liberty to apply to vary or discharge his order.
  26. The respondent promptly did apply to discharge. The matter came before Mitting J, sitting in the Administrative Court, on 5 November 2015. The respondent was represented by Mr Paget. The claimant was represented by Mr Calzavara.
  27. Understandably, given the urgency, no detailed written arguments had been prepared. Mr Calzavara had not realised until just before the hearing that the point was being taken by the respondent about the jurisdiction of the High Court to entertain
    the matter by way of judicial review proceedings and that it was to be argued that there was a suitable alternative remedy available in the County Court. The point having been so raised, however, it was then developed in oral argument before the judge, Mr Calzavara (who had not had the opportunity to research the matter) having to present his arguments on the hoof, as it were. No authorities were cited to the judge.
  28. The argument of Mr Paget, then as now, came to this. By its letter of 29 October 2015 the respondent had, as he said, made its decision under s. 204 (4). That being so, the claimant could, under s. 204A (2), appeal to the County Court: which could then, if it saw fit, grant the appropriate relief under s. 204A (4). His stance was that the wording of s. 204A (1) was sufficiently broad, purposively and properly read, to confer such a jurisdiction: even though at that time the respondent had not actually made a decision on the review.
  29. The argument of Mr Calzavara (reflecting the argument developed more fully before us by Mr Vanhegan) was that the meaning and effect of the wording of s. 204A (1) was such, properly read according to its actual terms, that the appeal jurisdiction of the County Court under s. 204A only arose where there had been a "decision on a review" by the local authority. Here there had not. It followed that the proceedings had necessarily and properly been commenced as judicial review proceedings in the High Court.
  30. Mitting J preferred the argument advanced on behalf of the respondent. In discussion he at one stage had said:
  31. "I can't for the life of me see why Parliament should give you a right of appeal, provide for a time limit in both events, and then only confer the ancillary rights in one case and not the other."
  32. In his following ex tempore judgment that remained his position. The central part of his judgment is at paragraphs 9 and 10, where he said this:
  33. "9. I am satisfied that Mr Paget's revised construction, not his original one, of the statutory provisions is right. It seems to me that Parliament has enacted a statutory code for dealing with these cases when the claimant has a right of appeal to a county court rather than in the somewhat more constrained circumstances for which Mr Calzavara contends, namely when the local authority has made a decision on review. It seems to me that the draftsman has used a convenient shorthand in section 204A (1) and when he refers to "a local authority's decision on review" he must be taken to mean a decision and an absence of a decision on review sufficient to permit the claimant to exercise his right of appeal to the county court on a point of law. There is no practical reason why there should be any distinction between the two, and it does not require stretching the statutory language unduly to achieve the sensible result.
    10. In my judgment the statutory provisions mean that where the claimant has a right of appeal to a county court on a point of law, then the county court has the power to order that accommodation be secured for him pending the determination of his appeal."
  34. Having so decided, he went on to hold that the relevant power had been available to the authority under s. 204 (4) in this case (a point which was not challenged before us). He then went on to refuse permission to apply for judicial review and discharged the Order of Wilkie J. He did, however, direct provision of interim accommodation until Monday 9 November 2015, in order to enable an appeal to be mounted by the claimant under s. 204A in the County Court in the meantime. He made no order as to costs.
  35. In the event, as we were told, an appeal under s. 204A was commenced in the County Court as contemplated by Mitting J. This was then compromised on terms that interim accommodation continued to be provided to the claimant. Further, on 17 November 2015 the respondent notified its decision on the review under s. 202. The claimant then appealed in the County Court, under s. 204, against that decision on 8 December 2015. We were disconcerted to be told that that appeal, which we gather is being pursued, still has not been listed for hearing in the County Court. It should have been. Appeals of such a kind should be heard promptly. It also is regrettable that the hearing of the present claim in this court – even if not a matter of urgency – has, for various reasons, been marked by delay.
  36. Discussion

  37. In some ways, the competing arguments can be presented as representing a head-on clash between what can be styled a literal interpretation of s. 204A (1) and what can be styled as a purposive interpretation. For this purpose, we were referred to passages from Bennion on Interpretation (6th ed) for the relevant principles of construction. But I do not think that I need set those out here.
  38. Mr Vanhegan in this context also referred us to the observations of Lord Bingham in R v Bentham [2005] UKHL 18, [2005] 1 WLR 1057 where at paragraph 10 he said this:
  39. "Rules of statutory construction have a valuable role when the meaning of a statutory provision is doubtful but none where, as here, the meaning is plain."
  40. For his part, Mr Paget referred us to the decision of the House of Lords in R (Quintavalle) v Secretary of State for Health [2003] UKHL 13, [2003] 2 AC 687 and in particular to the observation of Lord Steyn at paragraph 21 that "nowadays the shift towards purposive interpretation is not in doubt." Mr Paget also referred, with some relish, to the remarks of Learned Hand J, there quoted by Lord Steyn, about the need "not to make a fortress out of the dictionary". We also were referred to the decision of the House of Lords in R v Z (AG for Northern Ireland's Reference) [2005] UKHL 35 and observations there made as to the need to interpret a statute in the light of its purpose set in the historical context and the mischief designed to be addressed.
  41. In my view, and whether at first sight or at second sight, the meaning of s. 204A (1) appears plain. It applies where an applicant has the right to appeal to the County Court "against a local housing authority's decision on a review". I agree with Mr Paget that s. 204A has to be put in the context of s. 204 (indeed, it has to be put in the context also of Part VII as a whole). But if that is done, those words in s. 204A (1) naturally link back to, and refer only to, the provisions of s. 204 (1)(a) relating to a "decision on the review". On the face of it, it is impossible to see how such words can relate to the position where there has been no decision on the review. The submission of Mr Paget in effect involves the proposition that the word "decision" includes a situation where there has been no decision: a difficult proposition indeed.
  42. Mr Paget, however, focused on the wording of s. 204 (1)(b). He said – and Mr Vanhegan agreed – that that wording, notwithstanding some possible ambiguity, is apt to cover two situations: (i) where a decision on the review has been made within the time prescribed but not actually notified (a relatively unlikely scenario, though possible); and (ii) where no decision on the review has been made within the time prescribed. That wording, he goes on to say, explains what he describes as "the convenient short-hand" (in the phrase of Mitting J.) of s. 204A (1). Thus he submits that a decision under s. 204 (4) can be challenged on appeal to the County Court both where there has been a decision on the review (s. 204 (1) (a)) and where there has been no decision on the review, or notification thereof, within the prescribed time (s. 204 (1) (b)). Overall, he said, it made no sense to confer jurisdiction on the County Court to decide an appeal substantively, whether or not there has been a decision on the review (see s. 204 (1)); and not to confer the like jurisdiction on the County Court, where interim accommodation pending such appeal has been refused, in both such situations.
  43. With respect, I do not think that this will do. As it happens, s. 204 (1) (b) in fact seems to involve a drafting slip: in that the intended reference is presumably meant to be to "a" decision on the review: which, indeed, is how it is put in s. 204 (2). But leaving that aside, just because s. 204 (1) (b) extends, as counsel agreed, to the two identified scenarios that does not mean that s. 204A (1) must: on the contrary, as I have said, its actual wording does not link to s. 204 (1) (b) at all. Moreover, and reflecting that, if there has been no decision on the review there can be no right to appeal to the County Court against any decision to review (just because none exists). Rather, as s. 204 (1) itself makes clear, the substantive appeal on a point of law is then to the original decision (in the present case, the s. 184 decision of 8 December 2014): this reflecting the words "or, as the case may be, the original decision." All this tells against the respondent's interpretation of s. 204A (1).
  44. As Mr Vanhegan submitted, and I agree, the interpretation advanced on behalf of the respondent involves rewriting s. 204A (1). Certainly the sub-section could readily and easily, if it had been the intention, have been so expressed as to apply where an applicant has the right to appeal to the County Court under s. 204 (1). But that it very conspicuously does not do.
  45. Do, then, wider purposive considerations enable the court to depart from this plain meaning? I do not think that they do. I do not think that torturing the language in the direction of the respondent's interpretation is sustainable. In any event, I formed the view that the purposive arguments advanced, although perhaps initially attractive (and it is understandable why, on the limited arguments advanced to him, Mitting J found them attractive), on analysis proved to be very suspect.
  46. There is no doubt that at least one principal purpose of s. 204A (as introduced by the 2002 Act) was to remove from the High Court the burden of being the only court empowered to entertain challenges to refusals by housing authorities to provide temporary accommodation: see, for instance, paragraph 22 of the judgment of Simon Brown LJ in Francis v Kensington and Chelsea LBC [2003] EWCA Civ 443, [2003] 1 WLR 2248.
  47. That being so, Mr Paget's argument seemed to take it as a given that the purpose was that all such challenges (emphasis added) were to be pursued in the County Court, or at all events all such challenges comprehended within s. 204. When asked what materials he relied on to support his proposition in so far as it relied on all such challenges (emphasis added), he referred us to the Explanatory Notes to s. 11 of the 2002 Act and to the Homelessness Code of Guidance for Local Authorities (to which, under s. 182 of the 1996 Act, a housing authority is required to have regard). But, when studied, those materials lend no real support to his argument: on the contrary, they simply offer a brief summary of the statutory provisions and would just as well accord with Mr Vanhegan's interpretation.
  48. I could perhaps see some force in this point if the interpretation advanced on behalf of the claimant had the consequence that the only interim accommodation cases which could not be dealt with in the County Court were those where there had been no decision on the review within s. 204 (1)(b). But that simply is not so. Thus Mr Paget conceded that, for example, a challenge to an authority's refusal decision under s. 188 (3) would need to be mounted by way of judicial review proceedings in the High Court. That, to my mind, is revealing.
  49. In this respect, there were cited to us (albeit they had not been cited to Mitting J) two authorities which, I think, are of some relevance. In the course of his judgment, with which Rix LJ agreed, Simon Brown LJ in the case of Francis (cited above) had said this at paragraph 27:
  50. "One final point arises. Parliament, for whatever reason, has failed to confer on the county court an equivalent appeal power to that conferred by section 204A with regard to any refusal by the local authority under section 188 to exercise their power to provide an applicant with temporary accommodation pending a section 202 review. One suspects that this may have been an oversight. Either way its consequence is that any challenge to the exercise of that section 188 power would still have to be brought by way of judicial review, as in Ex p Mohammed itself. Plainly, on such an application, the Ex p Nacion approach would apply."
  51. Again, in the case of Johnson v Westminster City Council [2013] EWCA Civ 773. [2013] HLR 45 Aikens LJ, with whom Lewison LJ agreed, said this at paragraph 20 of his judgment:
  52. "The effect of s. 204A is that the county court has been given jurisdiction to deal with challenges to a refusal of an authority to grant temporary accommodation in a homelessness case pending an appeal to the county court from a review decision. (But, I note, the county court has not expressly been given jurisdiction to deal with any refusal to grant temporary accommodation after an adverse decision of the authority and pending a review by the authority under s. 202)."

    Aikens LJ then went on to identify two potential stages in such Housing Act proceedings where the County Court had no jurisdiction with regard to challenges to an authority's refusal to provide interim accommodation. One is the stage between the original decision (for example, a s. 184 decision) and the decision on the review given under s. 202: the point made by Simon Brown LJ in Francis. Another is where the County Court has dismissed the appeal from the review decision, under s. 204, and the applicant then seeks interim accommodation pending an appeal to the Court of Appeal: the point raised in Johnson itself. In such a situation, judicial review is the appropriate procedure, as Johnson decided.

  53. The obvious point to be gathered from all this, therefore, is this. If Parliament has left such interim accommodation challenges in such situations to judicial review proceedings in the High Court it then is by no means necessarily offensive to think that Parliament may likewise have wished to leave to the High Court challenges on interim accommodation decisions under s. 204 (4) where no decision on the review has been made.
  54. One can postulate other examples where judicial review in the High Court is the available procedure in this context. Thus, when it was put to him in argument, Mr Paget accepted that if an authority failed to produce a decision on the review within the prescribed time then, at all events in theory, a legal challenge could be brought for production of such a decision, by seeking a mandatory order by way of judicial review proceedings. So also if an authority were to fail to produce any decision at all under s. 204 (4) itself: that failure too would seem to be capable of being challenged in judicial review proceedings. Further potential examples identified in argument (in cases where no decision on the review has been completed) could be where the authority has refused interim accommodation in circumstances where the appeal had been brought out of time by reference to s. 204 (2) or where a requested extension of time had been refused by reference to s. 204 (2A).
  55. In my view, the fact that – as accepted – a challenge to an adverse s. 188 (3) decision is to be brought in judicial review proceedings in the High Court is particularly revealing. That power subsists until a decision on the review: see s. 188 (3). There is thus a potential interplay or overlap between s. 188 (3) and s. 204 (4). (It may be noted that in the present case the authority in fact refused interim accommodation by its letter of 29 October 2015 by reference to s. 188 (3).) That being so, it becomes nothing like as obvious as the respondent would have it that it was intended that s. 204A (1) should confer jurisdiction on the County Court by extending it to cases of refused interim accommodation where no review decision has been made at all. On the contrary, as it seems to me, such considerations if anything point to it being designed, consistently with the position arising for refusals under s. 188 (3), that s. 204A (1) should indeed extend, and extend only, to cases where there has actually been a decision on the review. And that is precisely what s. 204A (1), naturally and ordinarily read on its express terms, says.
  56. I am far from saying that there might not have been sense and purpose in making all appeals from s. 204 (4) decisions (whether made in the context of appeals by reference to s. 204 (1)(a) or of appeals by reference to s. 204 (1)(b)) within the sole province of the County Court. On the contrary, one can see that that is a course which Parliament might have wished to take. But what I do say is that there is a rational and logical basis for concluding that s. 204A (1) means precisely what, on its wording, it actually says: and thus that Parliament had declined to take the alternative course.
  57. Mr Vanhegan also made the point that where there has been a decision on the review then that will connote a second decision, and by a senior housing officer. But where there has been no decision on the review that, he observed, will connote that thus far there will have been only one decision, and by an often relatively junior housing officer. That, he suggests, may provide a further explanation for Parliament doing as it has done. I doubt if that point would provide a powerful purposive explanation in favour of his interpretation. But Mr Vanhegan is in fact in a position of not needing a purposive interpretation at all; and at all events this point at least further supports the conclusion that a literal interpretation cannot possibly be dismissed as senseless.
  58. Finally, I note that in the various books it seems generally to be stated or assumed, by reference to s. 204A, that in a situation such as has arisen in this case – that is, where an adverse decision on interim accommodation has been made by an authority when there has been no decision on the review within the prescribed time – the appropriate procedure for challenge is by way of judicial review proceedings commenced in the High Court.
  59. Thus in the Encyclopaedia of Housing Law and Practice at paragraph I – 3646. 23 (in the commentary on s. 204A) it is stated that in such situations judicial review "is still the correct remedy". That also is the position taken in De Smith's Judicial Review (7th ed) at paragraph 17-037 (and footnote thereto); and also in the two other leading modern practitioners' books on Homelessness and Housing Allocation.
  60. Nor did I gain any impression that this conclusion reached will result, let alone thus far has resulted, in a flood of work for the High Court which the 2002 Act was designed to avoid. It is be deduced from the course these present proceedings have taken that practitioners have indeed, as the text-books have suggested, thus far been instituting such proceedings in the Administrative Court. From what Mr Vanhegan and Mr Paget indicated to us, it seems that court challenges in a situation such as the present are not in fact that common. That is perhaps as one would expect. For one thing, a housing authority may often be prepared, pragmatically, to offer interim accommodation. For another, it is surely not altogether unreasonable (even acknowledging the pressures and limitations on resources) to expect housing authorities ordinarily to notify their decisions on a review in accordance with the time limit which has been prescribed by the Regulations.
  61. Conclusion

  62. In my opinion, therefore, the wording of s. 204A (1) is plain and admits of only one interpretation. Further, that interpretation as so indicated does not by any means give rise to a result which is devoid of sense or purpose. I therefore would decide in favour of the claimant on this point. These proceedings were thus properly commenced as judicial review proceedings in the High Court. The parties should seek to agree an appropriate Minute of Order.
  63. The Senior President of Tribunals:

  64. I agree.
  65. Lord Justice Sales:

  66. I also agree.


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