ONEYEMAHAME EKWURU v LORD MAYOR AND CITIZENS OF THE CITY OF WESTMINSTER [2002] EWCA Civ 1735

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON COUNTY COURT
(MISS RECORDER DAVIES QC)
[2002] EWCA Civ 1735Case No B2/2002/1899Venue Royal Courts of Justice, Strand, London, WC2, Tuesday, 12th November 2002
Between
ONEYEMAHAME EKWURUAppellant/ApplicantLORD MAYOR AND CITIZENS OF THE CITY OF WESTMINSTERRespondent
Before
Lord Justice AldousTHE APPLICANT did not appear and was not representedTHE RESPONDENT did not appear and was not representedDate 12 November 2002

LORD JUSTICE ALDOUS:

This

[1]application for permission to appeal was listed before me today. Mr Ekwuru has written to the Civil Appeals Office a letter dated 11th November saying he is not going to attend. He says:
"If you want me to attend, you must list it before a judge who knows the law on homelessness. I shall not appear before Lord Justice Aldous. It seems that you do not want black people to succeed in your Courts. I am writing to Mr Blair, the Prime Minister, to complain. It seems to me that you are evil white racists."
However, I have read the papers in this case and therefore propose to give my judgment on this application.[2]This is an application, as I have said, by Mr Ekwuru to appeal the order of Miss Recorder Davies QC sitting at the Central London County Court dated 15th August 2002.[3]The background facts can be shortly stated. Mr Ekwuru began renting a flat in 1992. His rent of £180 a week was covered by housing benefit provided by the City of Westminster. His landlord sold the flat later in 1992 to a company called Brightling Ltd. In 1993 Brightling Ltd suggesting that Mr Ekwuru moved to another of its properties called Flat 4, 36 Daventry Street. The rent payable on this property was also £180 per week. Mr Ekwuru agreed to this proposal and relocated around Christmas 1993. He submitted a renewed application for housing benefit. The council agreed to pay £150 a week pending determination by a rent officer. The rent officer concluded that the maximum rent payable should be £170 per week. However, housing benefit was not increased and the council continued to pay £150 per week. This resulted in Mr Ekwuru's accruing substantial rent arrears. He took a part-time job to supplement the rent, but still was not able to keep up the payments.[4]On 28th January 1998 the landlord served a possession summons on Mr Ekwuru in relation to the flat at 36 Daventry Street. He lodged a reply to the summons on 23rd January 1998.[5]Around the end of 1997 or early 1998, Mr Ekwuru flew to Nigeria to attend his mother's funeral. He did not return to the United Kingdom until July 1999, having stayed to attend a ceremony on the first anniversary of his mother's death. He claimed he could not afford to fly home and then return for this ceremony. Mr Ekwuru has stated that he left his belongings in the flat and he retained the key.[6]Upon his return from Nigeria Mr Ekwuru claims he went to the flat and discovered that it had been repossessed. He had not thought that there was any realistic chance of retaining the flat, as possession proceedings had been commenced in January 1998 and the rent arrears had mounted whilst he was away. On his return Mr Ekwuru found temporary accommodation at a hostel. He has since lived in a number of temporary addresses.[7]I turn now to the history of these proceedings and extract what I consider to be the important matters for the purposes of this application.[8]On 25th August 1998 Mr Ekwuru made an application to the council for assistance on the basis that he was homeless. On 20th May 2000 the council wrote to Mr Ekwuru notifying him of the council's decision on housing assistance. The council considered the application under section 184 of the Housing Act 1996. It concluded that Mr Ekwuru was homeless, eligible for housing assistance and had a priority need. However, Mr Ekwuru was deemed to be intentionally homeless pursuant to section 191 of the Act.[9]The council was satisfied that he had surrendered his tenancy by the "unequivocal act of abandoning the property" and removing all signs that he occupied the property. The council relied on the length of stay in Nigeria, and the fact that Mr Ekwuru had removed belongings from the flat as an indication that he did not intend to return to it. It followed that the council concluded that it did not have a duty to provide accommodation for Mr Ekwuru as he had been adjudged intentionally homeless.[10]Mr Ekwuru was not satisfied, and on 15th May 2000 he requested a review of the decision under section 202 of the Act. He also made an application for permission to apply for judicial review, to which I will return later. The council notified Mr Ekwuru of its review decision on 1st August 2000. The review was undertaken by Mr Humphreys. He upheld the original decision that Mr Ekwuru was intentionally homeless, and cited correspondence to indicate that he had no intention of returning from Nigeria.[11]On 15th August 2000 Mr Ekwuru issued an appeal against the review decision at the Central London County Court pursuant to section 204 of the Act. He asserted that the review decision was illegal, because Mr Humphreys had been involved in the original decision. Under The Allocation of Housing and Homelessness (Review Procedures) Regulations 1999, the review must be undertaken by an officer who is senior to and independent of the officer who conducted the original review. He also argued that he had not been given the opportunity to deal with queries regarding his visit to Nigeria.[12]On 4th September 2000 Mr Ekwuru was granted an extension of temporary accommodation to 18th September. On 11th September Mr Ekwuru issued an application to seek an order that the council continue to be responsible for his accommodation. That application was dismissed by Scott Baker J maker on 13th September 2000 and permission to appeal was refused by Tuckey LJ on 15th September.[13]Mr Ekwuru's appeal against what I will call the first review was heard by His Honour Judge Green QC in the Central London County Court on 23rd November 2000. He refused an application for an adjournment and dismissed the appeal.[14]Permission to appeal the decision of the County Court judge was granted by Schiemann LJ. Following an adjournment, the appeal was heard by Schiemann and Waller LJJ on 4th October 2001. Prior to this hearing the council conceded that the review undertaken by Mr Humphreys was defective. Mr Ekwuru's appeal was therefore successful. By consent it was ordered that the decision of the County Court judge should be set aside, the review decision of Mr Humphreys be quashed and that the council should carry out a fresh review of the original decision dated 8th May 2000.[15]Pursuant to that order the council carried out a second review. The second review decision was communicated to Mr Ekwuru on 28th November 2000. It upheld the decision that Mr Ekwuru was intentionally homeless. Different reasoning was advanced, but there is no need for me to deal with it in this judgment. Mr Ekwuru was again unsatisfied with the decision and appealed to the County Court. However, on 9th January 2002 the council wrote to Mr Ekwuru's solicitors stating that the second review decision of 28th November 2001 was defective, and they were therefore prepared to quash it and conduct a fresh review. The solicitors advised Mr Ekwuru to accept this offer. The appeal was therefore discontinued and a consent order signed on 21st February 2002, which stayed the appeal and ordered the council to pay Mr Ekwuru's costs.[16]A third review was carried out. Its decision was notified to Mr Ekwuru on 11th February 2002. This review was undertaken by Mr Islam, a senior casework practitioner. He upheld the finding that Mr Ekwuru was intentionally homeless. Mr Ekwuru appealed against this decision pursuant to section 204 of the Act. He requested that the third review decision of 11th April 2002 be quashed and the original decision of 8th May 2000 be varied to a decision that he was not intentionally homeless. The grounds of appeal were drafted by counsel.[17]On 6th June 2002 Mr Ekwuru issued an application to amend his grounds of appeal. He considered the grounds drafted by counsel to be too vague, so dismissed his counsel and from then on has acted in person.[18]On 17th July 2002 the council wrote to Mr Ekwuru notifying him that the council was prepared to quash the third review decision of 11th April 2002 and undertake a fresh review. Mr Ekwuru did not accept this offer. The matter therefore came before the County Court. The substantive hearing took place on 15th August. At that hearing Mr Ekwuru argued that the review letter had failed to take account of full or proper account of the relevant facts, and all that had happened was that they had repeated the same mistakes. He relied also on sections 3 and 11 of the Human Rights Act and contended that there had been a breach of Article 6.[19]The Recorder held that the Act envisaged that the primary fact-finding investigation was the responsibility of the local housing authority, in this case the council, and that the role of the courts under section 204 was limited to points of law. That of course was right. She was, however, unpersuaded that she should go on and deal with the matter. She said this:
"... I am satisfied it would not be appropriate to order a variation of the original decision which in reality would mean a hearing by this court of all the original facts which led to the finding that the appellant was intentionally homeless."
She then turned to the Human Rights Act points, but seemed to come to no conclusion. The result was that she ordered that the third review decision of 11th April should be quashed, and she made provision for costs. That decision was made against the background of an undertaking by the council to carry out a fourth review.[20]Here we have a council which has conducted three reviews, all of which they accept to be defective. What should the court do? Should the County Court in those circumstances say that the legislation envisaged that the council are the fact-finding body and then send it back for another shot, as

the judge did? Should the court use its powers under section 204(3) which enables the court to:

"... may make such order confirming, quashing or varying the decision as it thinks fit."
As I have said, the judge referred to the Human Rights Act but came to no conclusion.[21]I believe this is a case in which this court should consider the appropriate procedure to be adopted in a case where the council has failed to carry out, and accepts that it failed to carry out, three reviews. Is it right that the County Court should say that the council is the fact-finding body and then send it back for another shot? Is there a human rights point here, and, if so, what is the remedy? I believe that this application establishes a matter which this court should consider.[22]I therefore intend to give permission to appeal.[23]However, I am certain that Mr Ekwuru is badly advising himself. In the papers he shows that he has a legal qualification as a Bachelor of Law from Brunel University. However, I would advise him to seek legal advice with the purpose of obtaining legal assistance. I also believe that the letter which I referred to at the beginning of this judgment was ill-advised.

ORDER

Application for permission to appeal granted. (Order not part of approved judgment)

Cited in 5 later judgments