Ermakov, R (on the application of) v Westminster [1995] EWCA Civ 42

EWCA-Civ

Ermakov, R (on the application of) v Westminster

[1995] EWCA Civ 42 · 1995-11-14

MR JOHN SAMUELS QC and MR ANTHONY JERMAN (instructed by Messrs Moss Beachley & Mullem, London W1) appeared on behalf of the Applicant. MR CLIVE HUGH JONES (instructed by the City Solicitor and ecretary, Westminster City Council) appeared on behalf of the Respondent.

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LORD JUSTICE NOURSE: I will ask Lord Justice Hutchison to deliver the first judgment.

LORD JUSTICE HUTCHISON : On 7th September 1994 Sir Louis Blom-Cooper QC, sitting as a deputy judge of the Queen's Bench Division, dismissed an application for judicial review made by Mr. Andrei Ermakov by which he sought to have quashed a decision by Westminster City Council on 18th January 1994 that he and his family were intentionally homeless. The main issue of law that arises for consideration on this appeal is whether the judge erred in having regard to reasons for their decision advanced by the Council's principal homelessness officer, Mr. Lodge, in an affidavit when those reasons were fundamentally different from the reasons communicated to Mr Ermakov in the Council's section 64 letter notifying him of their decision and the reasons for it. The appeal is brought with the leave of the judge.

The applicant and his family arrived in the United Kingdom by air on 9th July 1993. They remained at the airport for some days but on 14th July applied to the respondent Council to be housed on the ground that they were homeless. Pursuant to its duty under section 62 of the Housing Act 1985 the respondents embarked on enquiries to satisfy themselves whether he was homeless and in priority need - questions not difficult to answer - and whether he had become homeless intentionally, which was, as often happens, the crucial question.

Those enquiries were of course made more difficult by the fact that the applicant spoke little English and that the last home he had had was in Greece. The respondents' enquiries continued over some months and, in the course of them, they addressed letters (which produced no response) to persons in Greece whom they thought might be able to corroborate parts of the applicant's account of why he and his family had left their last home.

However, there came a time, in November 1993, when the

respondents asked the applicant to make a written statement in his own language recounting the circumstances in which he left Greece. The judge relied mainly on this statement when summarising the facts, and I can do no better than rely in turn on his clear summary. The judge said:

"The applicant is a national of the Republic of Uzbekistan (formerly in the USSR). He married Ellada Renta (a woman of mixed Russian and Greek parentage) in 1982. Their first child, Ellinika, was born on 2nd July 1987. They lived in Tashkent until April 1988, when they moved to Thessalonika in Greece. The move was made partly because of the political climate in Uzbekistan and partly because Mr Ermakov's father-in-law, a man called Kostas Rentas, a Greek national who had returned to Greece after many years residence in Uzbekistan, had expressed the wish that his daughter should come to care for him, following a diagnosis that he was suffering from prostate cancer.

From the written statement of the applicant to the local authority in August 1993, the following facts emerge. The Ermakovs experienced extreme hostility from Mr Rentas' family, who took the view that the Ermakovs had come to Greece simply to benefit financially from Mr Rentas and to acquire a share in his estate on his death. The applicant's brother-in-law, Nikas Rentas, threatened Mr Ermakov's life and demanded that the family leave the country. The applicant and the family persevered, however, living in various villages near Mr Ermakov's father-in-law, despite an increasing campaign of harassment from the Rentas family.

The applicant's wife obtained a Greek passport in 1991, she being a Greek national. The applicant recalls many and, he says, increasingly serious incidents as time progressed. He states that extreme pressure was brought to bear on one of his employers to sack him. This culminated in the applicant being assaulted at work, sustaining head injuries and being forced to leave his job. Repeated threats to the life of the applicant and those of his family were made. He states that on more than one occasion someone tried to run him down in an unmarked car. By the time of the birth of the second daughter in February 1993 the family were in an anxious and distressed state. Mr Ermakov states that he genuinely feared that the death threats made to his wife could soon be carried out.

The Ermakovs' last address in Greece was [an address in Thessalonika]. They discovered that their landlady at that address had been threatened with violence unless she evicted them and was fearful for her own safety. The applicant then received information that Nikas Rentas had 'taken out a contract on his life'. In a state of fear they decided that they had to leave their accommodation and leave the community altogether. Wishing to leave the country, they considered a return to Uzbekistan, but, because of circumstances occurring there in 1993, and the applicant, being a Christian, had experienced problems with the military there and states he had been shot at, they decided not to go to Uzbekistan. Instead they entered the United Kingdom on 9th July 1993, at which time they presented themselves to Westminster City Council as homeless persons."

The translation of the statement became available to the respondents on 11th January 1994. On 18th January they notified the applicant and his wife of their decision in a letter from Mr Kevin Humphries, a homelessness officer. The material part of that letter reads:

"I have to inform you that upon completion of our enquiries it is the opinion of this authority:

1. that you are homeless,

2. that you are in priority need,

3. but, that you are intentionally homeless for the following reasons:

that you and your family had accommodation to occupy at [the address in Thessalonika].

This Authority is not satisfied that you and your family experienced harassment and therefore it was reasonable for you and your family to continue to remain in occupation at the above address.

This Authority will therefore not be providing you with alternative accommodation."

This letter has to be considered in conjunction with the entry made by Mr Humphries on the history sheet on 14 th January, which reads:

"Discussed case with BL [Mr Lodge]. Applicant's statement returned from translator. There is no evidence to confirm applicant's story/claims of harassment or intimidation. Therefore it was reasonable for him to remain in residence in Greece -his statement and confirmed at personal interview that he came to UK to make a better life for himself and family. Decision of IH [intentional homelessness] made by BL."

It was on the basis of the reasons given in the letter of 18th January for the finding of intentional homelessness that the application for judicial review was made. The original grounds were:

1. Failure to make adequate enquiries by following up the letters that had been sent to Greece addressed to the landlord of the premises the family had occupied and to Mr Rentas, the wife's father.

2. Wrongfully assuming that the lack of response to the letters indicated that the applicant's claims of harassment were untrue.

3. Failing formally to interview the applicant to test and give him a chance to respond to their concerns about the veracity of his claims.

4. Failing properly to decide whether or not the applicant did suffer from the harassment complained of.

It is, in the light of what I am about to say, unnecessary to say anything about those grounds beyond stating that they persuaded Brooke J to grant leave on 11th May 1994, when he directed that the respondents' affidavits should be filed within 28 days. The notice of motion was dated 20th May. On 27th June Mr Lodge swore the affidavit on which the main argument before the judge and on this appeal has focused, and it was presumably served on the applicant's solicitors within a short time thereafter. The hearing took place on 6th September and the judge gave judgment on the 7th.

In his affidavit Mr Lodge says that he made the decision, basing himself on the translation of the statement. He explains in some detail why he concluded that the matters disclosed in the statement did not make the accommodation in which the applicant had been living in Greece unreasonable to occupy - or, as it might more felicitously have been put, that, notwithstanding the matters disclosed in the statement, he was satisfied that it would have been reasonable for the applicant and his family to continue to occupy the accommodation in Greece. Some of his detailed reasoning would be material in the context of other grounds relied on by the applicant in this appeal but, for the purposes of considering this first and main ground, it is necessary to focus only on the following passage:

"I therefore reached the decision of intentional homelessness. I did not consider it necessary to interview Mr Ermakov having received the statement. The statement is detailed and there is no indication that Mr Ermakov may not have put forward the grounds for his application. Nor did I consider it necessary to make any further enquiries. Two letters sent to Greece had not been answered and I relied upon Mr Ermakov's own statement.

This was not a case where the Council received conflicting evidence and needed to decide which evidence to choose. It was a case where I was able to make a decision on the basis of a detailed statement. In this regard I took account of the fact that Mr Humphries had informed me that although Mr Ermakov spoke English, it was preferable for him to put his case in his own language.

I have read Mr Humphries' note for the 14th January 1994 entered by him after I had made the decision. Regretfully that note is an inaccurate record of the reasons for my decision. As his supervising officer I should have checked this part of the notes before the file was disclosed but did not do so."

While it is not, in my view, entirely clear from those paragraphs whether Mr Lodge was in terms accepting the truth of the applicant's account rather than simply reaching his conclusions on an "even if true" basis, it appears from observations made by the judge that the former was intended, and the hearing proceeded on that basis.

There was also an affidavit, sworn on 18th July, in which Mr Humphries, referring to his having read Mr Lodge's affidavit, laconically accepted that his note of 14th January was inaccurate.

In the course of his arguments in this court Mr Jones, for the respondents, suggested in one way and another that the differences between the reasons given in the decision letter and those deposed to in the affidavit were not particularly significant. I feel it right to state at the outset my view that they were of the greatest significance. The letter, as the judge rightly accepted, "expressed disbelief in the applicant's story of his abandonment of his last settled accommodation in Greece", and said nothing at all on the question whether, if true, the applicant's account would have made it reasonable for him to leave. The affidavit, on the other hand, accepted the truth of what was said but explained why, in the view of Mr Lodge, the events recounted did not justify the conclusion that it would not have been reasonable for him to continue to occupy the premises in Greece. It is difficult to imagine a starker contrast.

Before the judge counsel for the applicant objected to the admission of the two affidavits on two grounds. The first was that they were out of time and, while Mr John Samuels QC in his skeleton argument for this appeal has, as it were in passing, sought to revive this point, it seems to me unrealistic to do so; and anyway, assuming the affidavits were otherwise admissible, their admission despite their lateness was a matter for the judge's discretion.

The main ground of objection was the contention that these affidavits were not admissible or, if they were, ought not to have been admitted in the particular circumstances of this case. The judge was referred to various authorities – Mr Samuels has referred us to those and others - and he ruled that the evidence was admissible and ought to be admitted. The judge's reasoning is contained in passages to be found at pages 10 and 14 of the transcript of his judgment. At page 10 he said:

"If what is really challenged is the decision of the local authority for which reasons must be given, it is the real reasons and not the form in which the real reasons appear in the decision letter that is vital. A failure to record accurately the real reasons cannot shut out from this court's sight, on judicial review, those real reasons. The decision-maker, who discloses his or her reasons for the decision, must be allowed to say so, even if those reasons are palpably inconsistent with the reasons stated formally in the decision letter. In this case Mr Lodge did not compose the decision letter of 18th January 1994. That was done by Mr Humphries, his junior officer. Had Mr Lodge been both the decision-maker and author of the letter, there might be a question of which of the two versions was the real reason. It might be in that hypothetical state of affairs that the court would drawn an adverse inference and conclude that the ex post facto affidavit evidence was designed to remedy a fatal flaw in the reasoning process. With all respect to Steyn LJ's dicta [to which I shall come] I do not think there is any question of discouragement or otherwise to local authorities to supplement material gaps. What the local authority must do in judicial review proceedings is to adduce the evidence of its real reasons for its decision. If they depart from the reasons stated in the decision letter, that fact must be revealed for this court to determine the reviewability of the reasoned decision."

Then at page 14 the learned

judge said:

"Accordingly, I admitted the affidavit evidence of Mr Kevin Humphries and Mr Brian Lodge, on the grounds of their testimony about the decision-making process and about the reasons that Mr Lodge arrived at for deciding as he did. I should add that I cannot conceive of any circumstances when it would be right to exclude from judicial review proceedings evidence of the real reasons for a decision made by a local authority, however much they might be regarded as supplementary to, and even be an afterthought to those reasons given to the homeless person at the time of the decision, if only because the court should never be left in doubt about the real reason. If there is any doubt about the real reason for a decision, then the applicant must succeed; the decision would be unlawful. If there is any suspicion that the deponent of the affidavit is deliberately changing the reasons, the court will no doubt either cross-examine the deponent in this court or reject the evidence."

Characterising the dispute as one of admissibility is perhaps inappropriate. The respondents' case was that they had wrongly stated a reason which was not their true reason. Plainly it was incumbent on them to disclose this fact, by one means or another: it is unthinkable that they should have sought to defend their decision on a false basis. Some authorities might, perhaps, have simply written indicating that they conceded that the claim for judicial review must succeed on the ground that there had been a fundamental failure to comply with the requirements of section 64 as to the provision of reasons.

However, since the authority chose to disclose the true reasons - and the fact that the reasons given in the letter were not the true reasons - on affidavit and wished to continue to contest the proceedings, it was in one sense inevitable that the judge should admit the affidavits. The real question was not whether they should be admitted, but whether the respondents should be permitted to rely on them and justify the legality of their decision on the basis of them.

There is a good deal of authority which touches on this question. Before considering the cases to which we have been referred, I propose to state briefly what appear to me to be some of the factors of special importance to its resolution in this particular case. They are the following:

(1) This is a case in which the obligation to give reasons and to give them at the time the decision is communicated is a statutory one. Section 64(4) of the 1985 Act, as material to the present context, provides:

"If the local housing authority notify the applicant –

...

they shall at the same time notify him of their reasons."

(2) Nowhere in Part III of the Act of 1985 is there any express requirement that the authority shall take a decision on the questions into which section 62 obliges them to enquire. However, that section and section 64 plainly imply such a requirement. The terms of section 64, the marginal note to which reads "Notification of decision and reasons", to my mind suggest that decision and notification of it are regarded as going very much hand in hand. Of course, it has to be accepted that a decision must always precede notification, for reasons which are obvious. For practical purposes, however, there is much to be said for the view that the decision and its communication to the applicant are contemporaneous.

(3) The affidavits of Mr Lodge and Mr Humphries did not merely correct, amplify or explain the reasons given in the decision letter - they put forward entirely new reasons, completely at odds with those given in the letter. Moreover, they put forward those new reasons five or six months after the decision letter had been sent and, of course, only after judicial review proceedings had been launched.

It is well established that an obligation, whether statutory or otherwise, to give reasons for a decision is imposed so that the persons affected by the decision may know why they have won or lost and, in particular, may be able to judge whether the decision is valid and therefore unchallengeable or invalid and therefore open to challenge.

There are numerous authoritative statements to this effect - see, for example, Thornton v Kirklees Borough Council

[1979] 1 QB 626

at 638H, in the judgment of Megaw LJ; R v London Borough of Croydon, ex parte Graham

(1993) 26 HLR 286

(a case to which further reference will be made) at page 291, where Sir Thomas Bingham MR said:

"I readily accept that these difficult decisions are decisions for the housing authority and certainly a pedantic exegesis of letters of this kind would be inappropriate. There is, nonetheless, an obligation under the Act to give reasons and that must impose on the council a duty to give reasons which are intelligible and which convey to the applicant the reasons why the application has been rejected in such a way that if they disclose an error of reasoning the applicant may take such steps as may be indicated."

I should also refer, though Mr Samuels drew our attention to it in a slightly different context, to the classic statement of Lord Scarman in the case of Westminster City Council v GreatPortland Estates Plc

[1985] 1 AC 661

at 673:

"Failure to give reasons. When a statute requires a public body to give reasons for a decision, the reasons given must be proper, adequate and intelligible. In In re Poyser and Mills' Arbitration [1964] 2 QB 467, Megaw J had to consider section 12 of the Tribunals and Inquiries Act 1958 which imposes a duty upon a tribunal to which the Act applies or any minister who makes a decision after the holding of a statutory inquiry to give reasons for their decision, if requested. Megaw J commented, at page 478:

'Parliament provided that reasons shall be given, and in my view that must be read as meaning that proper, adequate reasons must be given. The reasons that are set out must be reasons which will not only be intelligible, but which deal with the substantial points that have been raised.'"

Starting from this point of principle, Mr Samuels' argument, expressed in its simplest form, is that it cannot be right to admit, for the purposes of its being relied on in justification of the decision, such evidence as was admitted in this case, since to do so nullifies the very objects and advantages underlying the requirement to provide reasons. He concedes that there are authorities which support the proposition that evidence may be admitted to amplify the reasons given in the decision letter, but he seeks to distinguish them from the present case, and argues that the weight of authority is against allowing wholly deficient statutory reasons to be made good by affidavit evidence in the course of proceedings. I must consider some of the authorities to which he drew our attention.

R v Swansea City Council, ex parte John

(1982) 9 HLR 56

, a case on which the judge relied, concerned a decision of

intentional homelessness where the decision letter in effect gave no reasons at all, since it suggested that the applicant was intentionally homeless merely because an order for possession had been made for breach of tenancy conditions – an approach which the judge, Woolf J, said would have been wrong.

The relevant part of the judgment is at page 63:

"Mr Craven says the council, having put their case in that way on notice to the applicant, are not entitled to refer to the true reasons, which are the reasons set out in the affidavit of Mr Smith which I have read and which are much fuller than the letter of 17 December.

It is right that section 8 of the Act places an obligation upon the authority to give to the applicant the reasons for their decision. However, it does not seem to me that that is anything more than a procedural requirement. If a decision is properly reached then the fact that proper reasons have not been given to an applicant does not prevent the council from justifying their decision by reliance upon the proper reason.

Therefore, although I would have taken a different view if the letter had set out the only reasons of the council on the basis I indicated earlier in this judgment, on the true reasons of the council I find this application fails."

Despite the learned judge's acceptance that this was a case of amplification of reasons, it does seem to me to be a case which lends support to the proposition that fundamentally different reasons may be advanced at the hearing and may defeat an application to quash the decision, the reasons for which in the statutory notification are inadequate. It cannot, in my judgment, be treated on its facts as a case of mere amplification and explanation.

R v Westminster City Council, ex parte Bishop, an unreported decision of Mr Robert Carnwath QC, sitting as a deputy judge of the High Court, on 9th February 1993, was another authority on which the judge placed reliance. That again was a case involving a finding of intentional homelessness, in which the original decision and reasons dated 7th October 1991 were on reconsideration affirmed by a decision taken in February but not communicated to the applicant until July 1992. The point taken on reasons was that the July letter did not mention a reason to be found in the February memorandum evidencing the decision. The judge, who was referred to a number of authorities, said this:

"In homeless persons cases, the courts have, in practice, been prepared to accept evidence, at least to amplify the stated reasons. Generally I would adopt what was said by Woolf J ... in R v Swansea City Council, ex parte John ..."

A little later the learned

judge said:

"In this case ... the reasons are clearly stated in the letter and they are generally consistent with the affidavit. The injunction point [that was the additional reason] was considered by the authority, and failure to mention that in the July letter does not, in my view, preclude the court from having regard to it. Accordingly, I do not think that this challenge can succeed on the simple ground that the reasons were inadequately stated."

The case of Bishop went to appeal, but this point was not

considered.

Hobbs v London Borough of Sutton

(1993) 26 HLR 132

was a case upon which the judge in the present case placed particular reliance. In my view, however, Mr Samuels is right when he submits that it is of only limited significance, since a point was not taken on the propriety of admitting further material to supplement the decision letter which admittedly failed to comply with the requirements of section 64(4). All that can be said is that it is an example of a case in which the court did not demur when asked to look at affidavit evidence, to which no objection had been taken by the applicant.

Mr. Samuels referred us to a number of cases which he submitted were authority the other way. Not all of them, in my judgment, are helpful, but some must be referred to as they do provide support for the applicant's argument. The first of these is ex parte Graham, from which I have already cited a passage in the judgment of Sir Thomas Bingham MR. The headnote includes, in paragraph (2), a statement of principle plainly based on that passage, and the following further statement:

"(3) The idea that material gaps in the reasons can always be supplemented ex post facto by affidavit or otherwise ought not to be encouraged."

This is obviously based on a passage in the judgment of Steyn LJ, cited to the learned

judge and referred to by him in the present case, and to be found at page 292 of the report:

"I agree with the reasons of Sir Thomas Bingham MR.

There is only one point on which I would add a few remarks. There was some debate about the obligation under section 64 of the Housing Act 1985 to give reasons. I readily accept that the reasons may be very brief and must be read in the context of the matter in question. But to my mind the statutory obligation necessarily imports a duty to furnish adequate reasons for the decision having regard to the issue, or issues, to which the decision relates. In my judgment the idea that material gaps in the reasons can always be supplemented ex post facto by affidavit or otherwise ought not to be encouraged. That in effect is what we have been asked to do on behalf of the council. No doubt questions of the sufficiency of reasons usually involve a judgment as to matters of degree. Nevertheless it seems to me that if the reasons are insufficient to enable the court to consider the lawfulness of the decision the obligation of furnishing reasons has been breached and in that event the decision itself will be unlawful."

It is not entirely clear to me from this passage whether the learned lord justice was saying that reasons can never be supplemented or explained or that caution should be exercised in allowing that to happen: it depends on the sense in which one understands "always" and "ought not to be encouraged". Certainly the concluding sentence tends to support the former construction. However, construing the paragraph as a whole, I do not understand Steyn LJ to be saying that reasons can never be supplemented in evidence. The judgment of the Master of the Rolls does not provide further guidance on this point: and Hoffmann LJ, who dissented, does not refer to this aspect of the case.

The judge in the present case characterised the passage in Steyn LJ's judgment as an obiter dictum. It is, on the basis of the facts to be gleaned from the report, not altogether easy to determine whether or not this is correct, and I do not propose to take time discussing the point. What is undoubted is that Steyn LJ felt impelled to express his views in the terms that he did, regarding them as material and important in the context, and those views naturally command great respect.

This authority is generally consistent with a number of previous decisions at first instance, to some of which I shall refer. However, even without the assistance which they give, it is possible to state two propositions which the judgments in ex parte Graham support.(1) If the reasons given are insufficient to enable the court to consider the lawfulness of the decision, the decision itself will be unlawful; and

(2) The court should, at the very least, be circumspect about allowing material gaps to be filled by affidavit evidence or otherwise.

Of the earlier cases cited by Mr Samuels it seems to me

that two are particularly relevant in the present context. The first is the decision of Schiemann J in R v Tynedale District Council, ex parte Shield (1987) 22 HLR l44. That was a case where the authority's decision letter of April 1989 asserted merely that it was under no duty to rehouse the applicant, having fulfilled its obligation to him when it had rehoused him in 1979. At the judicial review hearing a lengthy affidavit from the senior housing officer advanced reasons which, as the judge said, "bore little or no relation to what appears in the letter". The judge recorded that he had been told that it was accepted that the applicant was threatened with homelessness and had a priority need: these matters had not been dealt with originally or in the affidavits. In the course of a judgment upholding the applicant's challenge the learned

judge said:

"Mr Stoker, on behalf of the council, submits, first, that the letter of April 29, 1986, is not the decision but the notification of the decision. I have no evidence from which I can discover who took the decision and when, but Mr Stoker tells me that the decision was taken by the deponent Stephenson. Secondly, Mr Stoker submits that once the decision had been taken, this could only be challenged for perversity or procedural irregularity in the decision-making process. The failure to comply with section 64 is of no relevance to the legality of the decision itself. Thirdly, he submits that the decision is not one verging on absurdity, nor does it on its face betray an error of law because, he says, there is no face that I can look at, the decision having preceded in time the letter.

In my judgment, I am entitled to treat the letter of April 29, 1986, as the decision of the authority, just as the court will treat the decision letter of the Secretary of State on an appeal under section 36 of the Town and Country Planning Act 1971 as the decision of the Secretary of State. It is no doubt true in every case that the decision conceptually precedes the communication of that decision in letter form, but it is not permissible for the court in my judgment to go behind that letter and hear evidence as to what the real reasons were. This is consistent with the general procedure adopted by the courts in relation to administrative decisions in cases where the decision maker is obliged to give reasons for his decision. One of the purposes of requiring the decision maker to state his reasons is to give the recipient of the decision the opportunity of challenging it.

A little the learned

judge said:

"I am prepared to accept that the court has jurisdiction not to quash the decision if satisfied that there would be no purpose in so doing, having regard to the totality of the evidence before the court. Nevertheless, where a decision letter is manifestly flawed, in general the court would be slow not to quash. In my judgment, in the present case it would be right to quash the decision and I shall do so."

This is a helpful decision. I bear in mind that, in Bishop's case, Mr Carnwath QC, to whom it was cited, cautioned against treating the Town and Country Planning Act as too close an analogy, for reasons which he explained. Nonetheless, I am attracted by the obvious good sense of treating the decision letter as in practice synonymous with the decision (which seems to me to provide a practical answer to the analysis, favoured by Woolf J in ex parte John, that the failure to give reasons is merely a procedural defect, not affecting the validity of the decision itself). Moreover, this decision is very much in line with the interpretation of Steyn LJ's observations in Graham's case, which I have already suggested - that the court should be circumspect about admitting evidence to make good patent defects in the reasons stated in the decision letter.

Finally, on this point, there is the decision of Rose J in R v Northampton Borough Council, ex parte Carpenter

(1992) 25 HLR 349

. One of the issues arising for consideration was the adequacy of reasons for a finding of intentional homelessness, and the application for judicial review succeeded on the basis that the decision letter was manifestly defective in failing to address the reasons why the applicant had left the previous accommodation. In the course of his judgment Rose J recorded that the respondent had relied on Schiemann J's observations in ex parte Shield to the effect that, even where the reasons in the decision letter were inadequate, the court might refuse relief if satisfied on all the evidence that no useful purpose would be served by granting it, and he also mentioned the contrary submission for the applicant.

The judge said, apropos those rival submissions:

"It may well be that there was material which, when analysed, balanced and considered, would have justified the housing authority in reaching the conclusion which they did. But I have no doubt at all that the letter of decision dated September 25 (paragraph 3) is manifestly defective in failing to address the reasons why the applicant had left Edinburgh and to express a decision about them.

In my judgment it is not adequate for a local authority to give as a reason so general a phrase as 'regard has been given to the general circumstances prevailing in relation to housing in the district of Edinburgh Council' even when coupled with the somewhat contentious phrase, 'you chose to leave'.

If the balancing exercise which Mrs Treacy describes as carrying out on the information which was available to her had been expressed in that letter as having been carried out, the position would no doubt be different.

I am wholly unpersuaded by Mr Albutt that the comment by Schiemann J which I have cited is, save in very exceptional circumstances, an appropriate approach to a case of this kind. The whole purpose of section 64 is to enable someone who is entitled to a decision to see what the reasons are for that decision and to challenge those reasons if they are apparently inadequate."

For the respondent Council Mr Clive Hugh Jones seeks to support the judge's decision essentially on the grounds relied on by the judge. I begin by referring to paragraph 7 of his concise and helpful skeleton argument. Here he argues that, since the Council were bound to state their true reasons, there was no point in the matter being reconsidered simply so that a correct section 64 notice could be served. The requirements of section 64, he argues, are procedural - the decision is one thing, the notification and reasons another. While the reasons should be intelligible, there is no reason why they should not be corrected or supplemented. That this can be done is apparent from the consistent practice of the courts, exemplified by the cases on which the judge relied, of permitting the reasons to be supplemented - he relies in particular on ex parte John. Any prejudice can be remedied by adjournments, orders for cross-examination and costs.

Expanding his submissions in argument before us, Mr Jones made a number of points. First, he invited us to distinguish the practical from what he described as the technical position - the court should be deciding real, not technical, issues. Had the judge not permitted the respondents to rely on the reasons disclosed in the affidavit, and simply quashed the order and remitted the matter, this would have been to allow technicality to triumph. This was a case in which the details of the decision had been accurately stated - all that had gone wrong was the purely technical error of giving the wrong reasons. This could and should be allowed to be corrected by the affidavit of the decision-maker, whose bona fides were not challenged, and who had not written the decision letter.

Then Mr Jones, relying on the case of Save Britain's Heritage v No. 1 Poultry Ltd.

[1991] 1 WLR 153

, argued that no prejudice had been caused, and that this authority in the field of planning law was applicable to this case. He particularly relied on the speech of Lord Bridge at page 167 C-E.

I cannot accept this argument. That case was one in which the reasons had been fully and clearly stated by the inspector in his report, and the question was whether the Secretary of State had adopted those reasons or not and whether, if he had not, the applicants, a non-statutory conservationist group whose primary purpose was to stimulate public awareness of what it perceived to be a threat to the nation's architectural heritage, were entitled to complain as having been prejudiced. The issues there were wholly different.

He also referred us to the case of Westminster City Council v Argustin

(1993) 25 HLR 281

, a homelessness decision in this court, in which the original decision letter omitted to mention an important aspect of the reasons, and the court was prepared to have regard to a subsequent letter which fully explained the reasoning. That, however, was a case where the elaboration, as not infrequently occurs, preceded the launching of proceedings for judicial review. That is a wholly different case from the present.

Mr Jones also took us to a passage in the current (7th) edition of Wade's Administrative Law, pages 258-260, headed "Failure to state reasons". All I propose to say about that is that it certainly does not support Mr Jones's wide submission that failure to state reasons in cases such as this is a mere technicality.

In the end, as I understood it, Mr Jones was disposed to concede that, while there might be cases in which the court could and should treat inadequacy of reasons or incorrect reasons as being a ground for quashing the decision, it should, where the true reasons were tendered, allow them to be given and decide the substantial point in the light of the correction.

These submissions seem to me to disregard the authorities to which we have been referred. Moreover, underlying Mr Jones's approach was the notion that the quashing of the decision for lack of proper reasons was a mere formality, in that it left the authority, in a case such as the present, with no more than a sort of mechanical or formal function to perform: they would simply, tomorrow as it were, send a further letter in effect incorporating the reasoning contained in Mr Lodge's affidavit. I do not for a moment accept that that is the correct approach. What was sought by the applicant was not an order of mandamus requiring the authority to give reasons but an order of certiorari quashing the decision coupled with mandamus directing them to reconsider the application. If such orders are granted, they necessarily involve proper reconsideration. Of course the authority are entitled, on that reconsideration, to take account of the information obtained by them in the course of their earlier enquiries; but reconsideration of the decision is not and cannot be a mere formality. In such a case the authority should invite the applicant to make any further representations that he wishes, and should take account of any made by or on his behalf and of any further information obtained by them or coming into their possession from some other source. The frequent practice of the courts when orders of this sort are quashed is not to make orders of mandamus directing reconsideration, because it is thought unnecessary to make such orders against responsible local authorities, who can be trusted to do without compulsion what an order would direct them to do. It does not need to be said that that practice in no way lessens the obligation that reconsideration entails.

In my judgment the weight of authority to which we have been referred favours the applicant, and I accept the general thrust of Mr Samuels' submissions. My conclusions in relation to this first and main ground of appeal are as follows:

(1) It is unrealistic to seek to draw any significant distinction, in the context of section 64, between the decision and the communication of the decision with reasons, or to treat the giving of reasons as purely procedural. In reaching this conclusion I am influenced by the fact that the section in terms requires reasons to be given at the same time as the decision is communicated; by Schiemann J's observations in ex parte Shield; and by the many cases in which such decisions have been quashed for inadequacy of reasons.

(2) The court can and, in appropriate cases, should admit evidence to elucidate or, exceptionally, correct or add to the reasons; but should, consistently with Steyn LJ's observations in ex parte Graham, be very cautious about doing so. I have in mind cases where, for example, an error has been made in transcription or expression, or a word or words inadvertently omitted, or where the language used may be in some way lacking in clarity. These examples are not intended to be exhaustive, but rather to reflect my view that the function of such evidence should generally be elucidation not fundamental alteration, confirmation not contradiction. Certainly there seems to me to be no warrant for receiving and relying on as validating the decision evidence - as in this case - which indicates that the real reasons were wholly different from the stated reasons. It is not in my view permissible to say, merely because the applicant does not feel able to challenge the bona fides of the decision-maker's explanation as to the real reasons, that the applicant is therefore not prejudiced and the evidence as to the real reasons can be relied upon. This is because, first, I do not accept that it is necessarily the case that in that situation he is not prejudiced; and, secondly, because, in this class of case, I do not consider that it is necessary for the applicant to show prejudice before he can obtain relief. Section 64 requires a decision and at the same time reasons; and if no reasons (which is the reality of a case such as the present) or wholly deficient reasons are given, he is prima facie entitled to have the decision quashed as unlawful.

(3) There are, I consider, good policy reasons why this should be so. The cases emphasise that the purpose of reasons is to inform the parties why they have won or lost and enable them to assess whether they have any ground for challenging an adverse decision. To permit wholesale amendment or reversal of the stated reasons is inimical to this purpose. Moreover, not only does it encourage a sloppy approach by the decision-maker, but it gives rise to potential practical difficulties. In the present case it was not, but in many cases it might be, suggested that the alleged true reasons were in fact second thoughts designed to remedy an otherwise fatal error exposed by the judicial review proceedings. That would lead to applications to cross-examine and possibly for further discovery, both of which are, while permissible in judicial review proceedings, generally regarded as inappropriate. Hearings would be made longer and more expensive.

(4) While it is true, as Schiemann J recognised in ex parte Shield, that judicial review is a discretionary remedy and that relief may be refused in cases where, even though the ground of challenge is made good, it is clear that on reconsideration the decision would be the same, I agree with Rose J's comments in ex parte Carpenter that, in cases where the reasons stated in the decision letter have been shown to be manifestly flawed, it should only be in very exceptional cases that relief should be refused on the strength of reasons adduced in evidence after the commencement of proceedings. Accordingly, efforts to secure a discretionary refusal of relief by introducing evidence of true reasons significantly different from the stated reasons are unlikely to succeed.

(5) Nothing I have said is intended to call in question the propriety of the kind of exchanges, sometimes leading to further exposition of the authority's reasons or even to an agreement on their part to reconsider the application, which frequently follow the initial notification of rejection. These are in no way to be discouraged, occurring, as they do, before, not after, the commencement of proceedings. They will often make proceedings unnecessary. They are in my judgment very different from what happened in this case.

I also wish to emphasise that all that I have said is with reference only to the provisions of section 64 of the Housing Act 1985.

(6) The learned judge did not in my view approach the decision, which in the exercise of his judgment he had to make, with the principles that I consider the authorities establish in mind. Whereas he should have adopted an approach consistent with that indicated in the judgment of Steyn LJ in ex parte Graham, what he did was to treat the application as one which he could not even consider rejecting. This is apparent from the passage in his judgment which I have already cited. I have little doubt that had the judge approached the matter with the correct principles in mind he would have concluded that this was not a case in which the respondents should be permitted to substitute wholly different reasons and, in reliance on those reasons, seek to justify their decision.

(7) On the first ground I consider that this appeal should succeed; the judge's decision should be set aside, the decision of the authority quashed, and the case remitted for reconsideration on the simple ground that, as the affidavit evidence of the respondents concedes, the only reasons given for the decision are defective, in that they are not the true reasons and are not relied on.

I end by saying that, without objection from the parties, we heard argument first on this first and main ground of appeal. In the light of the view that we took on that ground we did not hear argument on, and therefore say nothing about, the other two grounds of appeal relied on by the applicant, which were that the judge should have found that the authority had failed to make adequate enquiries as to whether the applicant was intentionally homeless and that the respondents were not entitled, on the facts disclosed, to be satisfied that he was.

LORD JUSTICE THORPE: I agree.

LORD JUSTICE NOURSE: I also agree.

Mr Jones has relied strongly on the view expressed by Woolf J in R v Swansea City Council, ex parte John

(1982) 9 HLR 56

, at 63, that the obligation imposed on a local housing authority by section 64(4) of the 1985 Act to notify the applicant of their reasons for being satisfied that he became homeless intentionally is nothing more than a procedural requirement; so that if a decision is properly reached, the fact that proper reasons have not been given does not prevent the authority from justifying their decision by subsequent reliance on the proper reasons. Accordingly, Mr Jones submits, while a failure properly to notify an applicant of their reasons would expose the authority to an order of mandamus directing them to do so, it can never, or perhaps virtually never, expose them to an order of certiorari quashing their decision that he became homeless intentionally. The reasons can always be corrected or supplemented later.

Like Lord Justice Hutchison, I am quite unable to accept a submission in that extreme form. I am in no doubt that Parliament intended that in some circumstances a local housing authority's failure properly to notify an applicant of their reasons should invalidate their decision that he had become homeless intentionally. General principles which should guide the court's decision in a particular case have been stated by Lord Justice Hutchison, with whose judgment I am in complete agreement.

I wish only to add this. The true reason for the Council's decision in this case was that although they accepted the applicant's account of the harassment he had experienced in Greece, nevertheless it could not be said that it was not reasonable for him and his family to continue to occupy the accommodation he rented there. However, in the decision letter of 18th January 1994 it was stated that the Council were not satisfied that the applicant and his family experienced harassment; in other words, that they did not accept the applicant's account. As Lord Justice Hutchison has pointed out, there is a stark contrast between the true reason and the reason stated. More particularly, the reason stated, having been based apparently on the applicant's credibility, a matter essentially for the Council, was one which was inherently likely to discourage him from challenging the decision by way of proceedings for judicial review. The true reason, being one which gave rise to a mixed question of fact and law, would not have had that effect or, at all events, would not have had it to the same extent.

For these reasons, as well as for those stated by Lord Justice Hutchison, it is clear to me that the Council's decision cannot stand. The appeal is allowed.

Order

appeal allowed with costs here and below; order of certiorari granted; legal aid taxation granted; leave to appeal to the House of Lords refused.

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