Porteous v West Dorset District Council [2004] EWCA Civ 244

[2004] EWCA Civ 244Case No B2 2003/2765
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WEYOUTH COUNTY COURT
HIS HONOUR JUDGE BEASHEL
WY301442
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 04/03/2004
Before
LORD JUSTICE MANTELLTHE RIGHT HONOURABLE SIR WILLIAM ALDOUS
Between
PORTEOUSAppellantWEST DORSET DISTRICT COUNCILRespondent
Mr P Glen (instructed by Mustoe Shorter Solicitors) for AppellantMr A Arden QC & Mr I Colville (instructed by Legal Dept., West Dorset D.C.) for RespondentHearing Hearing dates : 24 th February 2004
Judgment
[1]Andrea Porteous is a single parent. She has three children. In February 2003 they had an age range of four to fifteen. On 19th February 2003 Miss Porteous applied to the West Dorset Housing Partnership as agent for the West Dorset District Council, referred to here as the local authority, to be allocated accommodation as a homeless person. She had previously applied to be entered on the housing register. In response on 31st March 2003 the local authority wrote to Miss Porteous informing her that she was eligible for assistance, considered to be homeless with a priority need on account of her children, not intentionally homeless, and also, because she had previously lived in the district, with a sufficient local connection to warrant the local authority accepting a duty under section 193 of the Housing Act 1996 to secure permanent accommodation for her as a matter of urgency.[2]Although by section 184 (1) of the Act the district council had a duty to make all necessary enquiries before making its decision, such enquiries as had been made failed to reveal that Miss Porteous was still the tenant of a property at 108 Edensor Gardens in Chiswick. That only came to light when the district council was contacted by someone from Hounslow Borough Council on 9th May 2003 following which it was confirmed that Miss Porteous was still the sole tenant of those premises. Miss Porteous was interviewed on 15th May. She confirmed that she had been a tenant of 108 Edensor Gardens from August 1998 to October 2002 when, as she thought, she had taken sufficient steps to transfer the tenancy to her sister before departing to live with a Mr Jacob in Germany, all of which was entirely consistent with the material disclosed in the original application. However, it having been made clear by Hounslow Borough Council that Miss Porteous was free to return to the Chiswick address, on 31st July the district council again wrote to Miss Porteous this time effectively rescinding the earlier decision and informing her that it had been decided that as she was not homeless there was no duty to assist and the temporary accommodation which had been made available in the meantime would be withdrawn.[3]The same letter informed Miss Porteous of her right to appeal. Now section 202 of the 1996 Act confers a right to request a review of any decision of a local housing authority under sub section 1(a) with regard to eligibility for assistance and under sub section 1(b) with regard to any decision as to what duty, if any, is owed to the applicant under sections 190 to 193 and 195 and 196 of the 1996 Act. On 1st August 2003 Miss Porteous exercised that right. In her request she stated that being forced to return to 108 Edensor Gardens would mean the break up of her family – a rather different response to that made when first asked why she had not taken up the accommodation on returning from Germany. In a further written statement she again made the point that she wished to remain in Dorset to keep her family together. On 8th September the review decision was issued by which Miss Porteous was informed that although eligible for assistance under section 185 of the Act, she was not homeless and it was stated by the responsible officer, "I therefore find that this Authority has no duty towards you as prescribed in Housing Act 1996 Part VII (as amended by the Homelessness Act 2002) as you have accommodation which is available and suitable to you. Consequently I would reiterate the previous advice which is to return to 108 Edensor Gardens Chiswick. You should contact the London Borough of Hounslow without delay." The same letter advised Miss Porteous of her right to appeal to the County Court under section 204. That, having taken advice, she duly did.[4]At the end of November 2003 the matter came on for hearing before His Honour Judge Beashel sitting in the Weymouth County Court. He gave judgment on 4th December 2003. The appeal had been argued on two main grounds. The first was that it was not open to the local authority to revisit and rescind its original decision. The second was that by the date of the letter of 31st July 108 Edensor Gardens was no longer available to Miss Porteous and certainly that was the case by the date of the review, thus removing the foundation for both decisions. The judge rejected both grounds. That has led to an application for permission to appeal to this count which having been referred to the full court has been conducted with the respondent present and treated as the substantive appeal. Although this is a second appeal within the meaning of CPR 52.13 I would consider that it does raise important points of principle justifying the grant of permission.[5]Before this court the grounds of appeal are as follows: i. the learned judge erred in law in holding that the Respondents, having determined on 31/03/03 that they owed a duty to the Appellant pursuant to section 193 of the Housing Act 1996, were entitled to decide subsequently that they did not in fact owe such a duty. ii. in holding that the respondents were entitled to come to a fresh decision, the learned judge erred in law in that he held that the appellant had a duty to provide them with information as to the circumstances in which her previous tenancy of 108 Edensor Gardens Chiswick had come to an end, whereas the duty to inquire into those circumstances lay squarely upon the respondents and they had been in breach of that duty. iii. the learned judge erred in law in holding that the appellant was not homeless for the purposes of section 175 of the Act because she had unreasonably failed to take advantage of ‘a window of opportunity’ to return to 108 Edensor Gardens, although at the date of the decision on review (being the relevant date) that ‘window of opportunity’ was no longer open.[6]Grounds one and two are closely related. The argument has been attractively presented by Mr Glen. He submits that a decision to accept a duty to house under section 193 can only be revisited in circumstances expressly provided for under that section, sub sections 5, 6, 7 and 7 (B). It is not necessary to set out those provisions in full. Suffice it to say that they all relate to circumstances arising after the decision has been made to accept a duty to provide accommodation. It is pointed out that the duty to secure accommodation arising out of 193 (2) of the Act arises by reference to 193 (1) where the local housing authority is satisfied that an applicant is homeless, eligible for assistance, has a priority need, and is not satisfied that he became homeless intentionally. Nothing is said about the local housing authority ceasing to be under a duty if no longer satisfied that the applicant is homeless. So, runs the argument, the section being explicit as to the circumstances in which the local authority will cease to owe the duty and the ground relied upon not being among them, the decision of 31st July was a nullity. Mr Glen finds support for his proposition in R v. Brent London Borough Council Ex p Sadiq (2001) 33 HLR 47. In that case the applicant had been accorded accommodation on the basis that he satisfied the criteria under section 193 one of which being that he was in priority need as having an infant son. Subsequently the County Court made an order by consent that the boy should reside with his mother from whom the applicant was separated. The housing authority purported to reverse its earlier decision. Moses J pointed out that the fact that an applicant was no longer in priority need was not a circumstance under which, by section 193, the local authority would cease to be under its duty. Further since section 193 provided a complete code as to the circumstances in which a local housing authority ceases to be under a duty and the code did not include the case of an applicant no longer being in priority need, it followed that the local housing authority remained under a duty to secure accommodation. Mr Glen also relies upon authorities reviewed in that decision and in particular on R v Lambeth LBC ex p Miah (1994) 27 HLR 21 and R v Southwark LBC ex p Dagou (1995) 28 HLR 72. In the former the local authority had notified the applicant that she had a priority need and was intentionally homeless and consequently provided her with temporary accommodation. It then turned out that she had left the accommodation provided and the local authority purported to issue a second decision that she was not homeless. Latham J (as he then was), allowed judicial review of the second decision holding that the local housing authority had no power to make fresh inquiries or to make a fresh decision. Whilst allowing the possibility that there could well be circumstances which would justify the conclusion that the local housing authority is discharged from further carrying out its duties, nevertheless he concluded at p.28, "The respondents, when considering what they should do in the circumstances they discovered in January 1993, purported to exercise a power which they did not have." It is perhaps worth noting that quite apart from the caveat this was a case where the second decision was in response to circumstances arising after the first decision had been communicated. The latter decision, however, was one in which the local housing authority purported to reinvestigate the circumstances existing at the date of the original decision. Even in that case the judge, Sir Louis Blom-Cooper QC, found that the local authority was without power to do so. Applying the approach to be found in those authorities to the facts of this case Mr Glen submits that the judge’s conclusions to be found at pages 9 and 10 of the transcript of judgment cannot be supported. What

the judge said was this:

"But what is the position as in this case where the authority discover that they had not been in possession of all of the material facts at the time of their original decision? I found in favour of the respondent on ground one. I find the respondent did not err in law. I hold that the respondent was under a duty to investigate the matter further, having received information as to the appellant’s connection with the Chiswick property. I accept the respondent did not make enquiries of Chiswick, although they did investigate further earlier properties that the appellant had lived in. That is perhaps curious at first sight. It seems to me that the appellant should have told the respondent more about the Chiswick property. She told them in February this year that she had left London due to a relationship break down. She had moved to Germany, but she should, in my judgement, have told them more. She should have told them that so far as the Chiswick property was concerned, she had held a secure tenancy but had transferred it. I am satisfied that there was material non-disclosure and that a person in the position of the appellant has a duty to be full and frank in disclosing material facts to a housing authority."
[7]Mr Glen attacks that passage not only for its holding that the local authority has power to revisit an earlier decision but also for placing a duty of disclosure upon the appellant. He points out that the only duty to make inquiry arises out of section 184 which places no such duty upon an applicant and further that it was negligent of the local authority not to investigate the tenancy in Chiswick whereas they had made certain inquiries with regard to a property occupied by the appellant prior to that time. As to this last criticism it should be pointed out that the only inquiries made with regard to that earlier tenancy were in connection with the application to be placed on the housing register and had nothing to do with homelessness.[8]On the other side Mr Arden QC submits that a local authority’s entitlement to reach a new decision is not limited to cases of fraud. An authority may reach a new decision where they discover that a relevant factual element in their decision was simply wrong whether caused by fraud, non-disclosure or simple oversight. He relies on the decision of this court in Crawley Borough Council v B (2000) 32 HLR 636. The case may be distinguished from the present on its facts but Mr Arden submits that the principles contained in the judgment of Buxton LJ are not only binding upon this court but are also apt to be applied. In particular he brings to our attention passages of the judgment of Buxton LJ at p.645. Having expressed his lack of enthusiasm for Mr Arden’s submissions Buxton LJ proceeded:
"But I find almost equally difficult Mr Mann’s contention that, always absent the fraud that unravels all, the authority can in no circumstances revisit a decision once taken, and cannot rely in support of a decision on anything other than what was notified to the applicant under section 184 (3). The inconvenience of such a position seems obvious. First, as the argument in this case demonstrates, it obliges an authority that is satisfied that an applicant does not have a priority need but wishes to guard against the possibility that decision may be falsified, to go on at the time of the original decision and investigate intentionality: even a conclusion as to intentionality can make no difference to the authority’s conclusion as to its duty, since as already pointed out section 190 (3) and section 192 (2) are in identical terms. Second, it means that even if in quite unforeseeable circumstances material as to intentionality comes to the local authority’s attention after the original decision (whether or not that decision relied on intentionality) the authority cannot take it into account: so the applicant may obtain accommodation, a valuable public resource, when in truth he is not entitled to it."
And later "The application of the jurisprudence of public law to the process of decision- making in homelessness cases does not, therefore, necessarily lead to the conclusion that a decision, once taken, cannot be revisited. To the extent that Sir Louis Blom-Cooper may have held otherwise in Dagou I cannot agree with him. The question for the court in an appeal under section 204 should rather be whether the whole circumstances of the case are such as to justify any, and if so what, relief in public law."[9]Although other authorities have been cited on both sides and the arguments refined, it seems to me that the question raised is a straightforward one. Is the local housing authority entitled to revisit and change an earlier decision if the earlier decision resulted from a fundamental mistake of fact? It would seem surprising if it could not. If an exception may be made for fraud why not for fundamental mistake? After all the resulting harm may be no greater in the one case than the other. Here, without there being any suggestion of bad faith on either side, unknown to either party there was accommodation available at the date of the original decision. Once the true position became known why in commonsense and justice should the local authority be held to a duty to provide accommodation which the applicant does not need and which could be made available in another more deserving case? Although for my part I would hesitate to adopt the judge’s condemnation of the applicant as having been guilty of "material non-disclosure" it is certainly the case that a more fulsome account of her tenancy of a 108 Edensor Gardens might well have alerted the local authority to the possibility of accommodation still being available to her. Of course, I accept that section 184 does impose a duty on the local housing authority to make inquiries but that does not of itself relieve an applicant from an obligation to include all relevant information in his or her application. Accordingly, whilst I recognise that there may well be a distinction to be made between circumstances prevailing at the time of the decision and changes occurring thereafter, I would hold that the judge was right to find that the local authority had been entitled to revisit and rescind its first decision.[10]The second (or more accurately third) ground attacks the judge’s finding with regard to the review. It is submitted and is common ground that the reviewing body is required to consider the circumstances as they exist at the date of the review. That is the effect of the decision of the House of Lords in Mohamed v Hammersmith and Fulham London Borough Council (2001) UKHL 57 2002 HLR 7. Although I have and have confessed some difficulty with the concept, it is one which I must faithfully apply. It means that the judge was bound to consider the circumstances as they existed on 8th September 2003 and to find for the appellant if she were homeless as at that date regardless of the previous position. In the event, the judge found that the appellant was not homeless as of that date. Since under section 204 an appeal lies to the County Court on a point of law only it is necessary for the appellant to show either that the conclusion reached was based on some error of law or that there was an insufficient factual basis to support it.[11]Homelessness is defined by section 175 of the Act. i. A person is homeless if he has no accommodation available for his occupation, in the United Kingdom or elsewhere, which he-(a) is entitled to occupy by virtue of an interest in it or by virtue of an order of the court,(b) has an express or implied to occupy, or(c) occupies as a residence by virtue of enactment or rule of law giving him the right to remain in occupation or restricting the right of another person to recover possession. ii. A person is also homeless if he has accommodation but- (a) he cannot secure entry to it, or (b) it consists of a moveable structure, vehicle or vessel designed or adapted for human habitation and there is no place where he is entitled or permitted both to place it and to reside in it. iii. A person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for him to continue to occupy.[12]By the time of the review hearing Hounslow had not only issued a notice to quit but the period of the notice had expired. Hounslow had then said that they would allow a period of grace in which the appellant might return to the Chiswick property. That period had also expired. However, Hounslow refrained from taking proceedings to recover possession. On 29th August 2003 Hounslow advised the local housing authority that the appellant had spoken with someone in the department on the telephone concerning 108 Edensor Gardens and that Hounslow was awaiting the local housing authority’s decision on review before undertaking possession proceedings. A witness statement from the reviewing officer, Tina Michelle Reynolds, was before the judge. Although in that statement she discloses her opinion at the time that Miss Porteous was still a tenant of 108 Edensor Gardens, clearly a mistake, she refers to an email from Hounslow Homes Ltd indicating that the premises remained available to the appellant and that even after the review decision had been taken Hounslow was prepared to allow the appellant back into the property and to support any action necessary to exclude the sister.[13]In dealing with the earlier period of grace afforded by Hounslow

the judge said this at p.8:

"I find that the appellant could have returned to the Chiswick property. She had fourteen days to do so. She knew she could return. It was plainly available to her and she said she had no intention of returning. A person is homeless who is homeless under section 175 of the Act if he has no accommodation available for his occupation, which he is entitled to occupy by virtue of an interest in it. One would be concerned with sub paragraph (a) if it were a tenancy and (b) if it were a licence. I find that it was at least a licence and I find it would be inconceivable that she had she returned to the Chiswick property that she could have had a possession order made against her simply on her occupation of that property."
It is complained that the judge was plainly referring to a time prior to the date of the review. So it may be, but at p.10 and p.11 he continued, "As to grounds two and three Mr Glen submits that in carrying out its review under section 202 of its decision in March, the respondent erred in law in that it failed to consider the appellant’s position as it was at the date of review. I am satisfied that the respondent on the facts available was entitled to conclude that the appellant had accommodation for her own occupation; the appellant knew that the Chiswick property was available to her and she chose not to take advantage of that offer. I agree with counsel for the respondent that as there is no reasonableness challenge here, the only question can be whether it was reasonable for the appellant to move back into the Chiswick property. It was plainly open to the respondent to find the Chiswick property was available to her."[14]On a fair reading of the judgment, therefore, I am satisfied that the judge was addressing his mind to the position at the date of review, that he was satisfied that as of that date it was open to the appellant to return to the Chiswick property and that she had at the very least a licence to do so. The fact that the review officer referred to a tenancy when what the appellant had in all probability was no more than a licence is nothing to the point. There was material before the judge, unchallenged as it seems, upon which he was entitled to reach the conclusion he did. I would reject the second ground also.[15]Accordingly I would dismiss this appeal. Sir William Aldous:[16]I agree.

Cited in 12 later judgments

and 3 more of the most senior