Lomotey v London Borough Of Enfield [2004] EWCA Civ 627

Case No B2/2003/2653

[2004] EWCA Civ 627

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM EDMONTON COUNTY COURT

(HER HONOUR JUDGE BEVINGTON)

Venue Royal Courts of Justice

Date Friday, 7th May 2004

Strand

London, WC2

B E F O R E:

LORD JUSTICE PETER GIBSON

LORD JUSTICE LONGMORE

Between

NAOMI LOMOTEYRespondent

-v-

Between

LONDON BOROUGH OF ENFIELDAppellant

(Computer-Aided Transcript of the Palantype Notes of

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MR D LINTOTT (instructed by London Borough of Enfield, Enfield EN1 3XA) appeared for Appellant

MR S CARROTT (instructed by Messrs Spicer & Associates, Edmonton N9 0TZ) appeared for Respondent

J U D G M E N T

LORD JUSTICE PETER GIBSON:

[1]I will ask Long Justice Longmore to give the first judgment.

LORD JUSTICE LONGMORE: This is an appeal from Her Honour Judge Bevington, a circuit judge of the Edmonton County Court sitting at Willesden. She had to determine whether the Review Panel of the London Borough of Enfield had erred in law in deciding whether there was accommodation which was available for the occupation of Ms Naomi Lomotey, and whether she had deliberately done something in consequence of which she ceased to occupy it. If there was and she had she would be intentionally homeless. The Review Panel concluded that Ms Lomotey did have available accommodation at 14 Valley House, Beaconsfield Road, Edmonton where it was reasonable for her to be expected to reside but that she had colluded with her brother in disabling herself from living there. The judge decided that the London Borough of Enfield had not explored with Ms Lomotey the question whether she wanted to live in that accommodation with the father of her children and that they should have done so by offering her either an oral hearing or a further opportunity to put in submissions in writing to deal with that question because, if she did want to live with him, the accommodation at Valley House would not be suitable. She also held that a finding by the Review Panel that Ms Lomotey had colluded with her brother in being served with a notice to quit the premises (which had originally been jointly owned by them both) was equivalent to a finding of dishonesty with which Ms Lomotey should have had an opportunity of dealing by, again, giving further evidence or making further submissions to the Review Panel of the Enfield housing authority.

[3]The background facts can be shortly stated. In 1990 Ms Lomotey and her brother jointly acquired the Valley House apartment and took out a joint mortgage with Abbey National. In July 2001 Ms Lomotey, who had by this time had three children by a Mr Whyte, a gentleman with whom her brother did not get along, registered with Enfield by putting herself on the Housing Needs register, but she was informed that she could not obtain local authority accommodation since she was a joint owner of the apartment. What subsequently happened was that on 11th October 2002 Ms Lomotey, without receiving anything in return, surrendered her interest in the apartment to her brother who on 24th October 2002 gave his sister notice to quit the premises. On the same day Mr Whyte made an application to the council for housing; it so happens that he did not name any partner with whom he wished to live on the actual form that he submitted.

[4]On 18th November Ms Lomotey, having been given notice to quit by her brother, applied to the council for housing assistance. She was interviewed by the council's Homeless Persons Officer, Mr Joe Morrisey. She filled out the relevant form making no mention of Mr Whyte or any other person as her partner. Mr Morrisey was later to say that he asked her when she was filling out the form if she had a partner and that she told him that the relationship with the father of her children was over and they were no longer living together. Again according to Mr Morrisey she said she had agreed to be served with a notice to quit by her brother. As he put it, she said that it suited them both if the council were to rehouse her. He explained to her that that might mean that the council would regard her as being intentionally homeless, to which her response was that the apartment was overcrowded and that there were arrears on the mortgage.

[5]Mr Morrisey then visited the Valley House apartment and saw the accommodation available there on 22nd November 2002. On 2nd December he interviewed Ms Lomotey for a second time. He again explained to her, by showing her what is called in the jargon of these affairs a pre-intentional letter, that there was a risk that the council would decide that she was intentionally homeless as a result of the facts which I have outlined. She did not deny that she had colluded with her brother in surrendering her interest to him but again she stressed that the apartment was overcrowded and that she was unable to work. On 9th December Mr Morrisey made and communicated his decision, pursuant to section 184 of the Housing Act 1996, that Ms Lomotey was intentionally homeless. The relevant reasoning for present purposes is contained in two paragraphs of that letter in the following terms:

"You and your brother therefore decided that if you ceased to be a 'homeowner' and he then evicted you, then the council would have to accommodate you as a homeless person. On 24 October 2002 your brother issued you with a notice seeking possession. This was only one week after he had been notified by Abbey National Plc that they had accepted your and your brother's request of 11 October 2002 that he was to be the sole mortgagor and that your legal interest in the property should cease. Given that you brother was notified on 17 October 2002 of this transfer with your approval and that he issued you with a notice seeking possession only a week later on 24 October 2002 also with your approval, it is reasonable to conclude that this was a collusive arrangement and that you have made yourself intentionally homeless. This is because your actions were deliberate and intended to cause you to become homeless when otherwise the accommodation was available for your occupation."

[6]Ms Lomotey then instructed solicitors, Messrs Spicers, who requested a review of Mr Morrisey's decision. On 17th December the council requested any fresh submissions to be made against a particular deadline; and the submissions were sent to the council on 16th January 2003 together with a request for an oral hearing. These submissions included the following paragraphs relevant to this appeal:

"Miss Lomotey made it clear that she has been unable to live with her partner David Whyte for want of accommodation. Mr Whyte is the father of her children (save for Jazz who is fostered) and of the unborn child. He does not have accommodation sufficient to accommodate his family even though it is reasonable for Miss Lomotey as his longstanding partner and for his children to be living together. Miss Lomotey made it clear that her brother even objected to him visiting the property. On occasions when he did visit violent arguments ensued, which Miss Lomotey had to intervene in order to prevent a physical confrontation. We would specifically refer you to the case of Islam (1983) 1 AC 688, which now has even greater force given the provisions of Article 8 of the European Convention on Human Rights and our client's right to family life. ... We refute entirely the suggestion that Miss Lomotey invited her brother to serve notice on her. Our client has never stated this. On the day that she was handed the notice, it was handed to her in a sealed envelope by her brother. He then ran out of the room. Miss Lomotey's mother was present and can attest to the fact that our client was so shocked by this that she burst into tears. ... We consider that since the council has misdirected itself in law and on the facts and also because credibility is in issue our client should have the opportunity to make oral representations at the review panel hearing."

[7]On 4th February Mr Perowne, the Team Leader of the Housing Department of the council, informed Spicers that the Review Panel had decided that an oral hearing was unnecessary. On 6th February the Review Panel met under the chairmanship of Mr Neil Harris and decided to confirm Mr Morrisey's decision; they so informed Spicers on 12th February and that decision contains the following two relevant paragraphs:

"Prior to your homeless application your partner, Mr David Whyte, made his own homeless application. Neither of you included the other in the application. You had specifically said to your homeless officer that you wished to make an application on your own." ... The panel concludes that after unsuccessfully applying for council housing you colluded with your brother to transfer your interest to him, for no financial settlement, and for him then to immediately issue with a notice seeking possession, for the purpose of you applying to the council as homeless. It is not the action of a reasonable person that you surrender your interest just because your brother demanded that you do so."

[8]Ms Lomotey then exercised her right to appeal on a point of law to the County Court and on 17th February issued a notice of appeal, asserting, first, that the council had misdirected itself in holding that it was reasonable for Ms Lomotey to continue to occupy the Valley House accommodation and, second, that the decision had been procedurally unfair because the council had failed to put to her the matters which it had ultimately held against her, viz the collusive sale and her statement that the relationship with Mr Whyte was over. The second ground of appeal was upheld by the judge who directed that the council should reconsider its decision.

[9]It is not entirely clear, at any rate to me from the terms of the judgment, whether the judge envisaged that the council should afford Ms Lomotey the opportunity to make further oral representations, including no doubt giving further evidence, or whether she envisaged that reconsideration should be in writing. A fair reading of her judgment indicates that she assumed that it might well be right for the council to give an oral hearing to Ms Lomotey. But Mr Sylvester Carrott who has appeared on her behalf today says that he is not actually asking for an oral hearing at this stage, as he puts it, but only at this stage that an opportunity for further written representations be afforded.

[10]The background statutory provisions are well known, but it is necessary, in order to make this judgment intelligible, to refer to some of them. First of all, section 175 in Part VII of the Housing Act 1996 says that:

"(1) 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 a court (b) has an express or implied licence to occupy, ..."

[11]Section 176 provides that:

"Accommodation shall be regarded as available for a person's occupation only if it is available for occupation by him together with- (a) any other person who normally resides with him as a member of his family, or (b) any other person who might reasonably be expected to reside with him."

[12]Section 184 then provides that:

"(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 [Part 7 of the Act]."

[13]Section 190 then sets out the duties to persons who become homeless intentionally.

[14]Section 191 defines becoming homeless intentionally and provides as follows:

"(1) A person becomes homeless intentionally if he deliberately does or fails to do anything in consequence of which he ceases to occupy accommodation which is available for his occupation and which it would have been reasonable for him to continue to occupy. (2) For the purposes of subsection (1) an act or omission in good faith on the part of a person who was unaware of any relevant fact shall not be treated as deliberate. (3) A person shall be treated as becoming homeless intentionally if- (a) he enters into an arrangement under which he is required to cease to occupy accommodation which it would have been reasonable for him to continue to occupy, and (b) the purpose of the arrangement is to enable him to become entitled to assistance under this Part and there is no other good reason why he is homeless."

[15]Section 202 then gives any applicant the right to request a review of any decision of a local housing authority as to his eligibility for assistance and of any decision of a local authority as to what duty is owed to him under sections 192 and 193. Section 204 gives a right of appeal to a County Court on a point of law.

[16]In Hobbs v London Borough of Sutton

(1993) 26 HLR 132

decided when the Housing Act 1985 had a similar definition of intentional homelessness but no provision for a review, it was held that there was no need for the local authority housing officer to hold an oral hearing, even when the applicant's good faith was in issue unless the requirement of an oral hearing was so compelling that the court would say that no reasonable authority could have acted without according the applicant the facility of an oral hearing. This court expressly approved the way the matter had been put by the deputy

judge at first instance, Sir Louis Blom-Cooper QC, in the following terms:

"... where the issue is of a person's credibility it is often possible to input motives from assessing all relevant material without listening to personal explanations. ... To demand that, whenever bad faith is being imputed to homeless applicants, they should be heard by the decision-maker -- in addition to being fully interviewed by other officers of the local authority -- would, in my view, be to impose too heavy a burden on local authorities. That is not to say that there may not be circumstances when oral representations should be invited by a decision-maker. It may be that there will be instances where the requirement of orality is so compelling that the court would say that no reasonable authority could have acted without according such a facility to a homeless person applying for suitable accommodation."

[17]Since that case was decided, the 1996 Housing Act has provided for a review as I have said in section 202, and indeed an appeal on a point of law to the County Court. Section 203(1) of the 1996 Act empowers the Secretary of State to make regulations as to the procedure to be followed in connection with such review. In pursuance of this power the Secretary of State has made the Allocation of Housing and Homelessness (Review Procedure) Regulations 1999. Regulations 6(2) and 8(2) provide as follows:

"6(2) Except where a case falls within regulation 7, the authority to whom a request for a review under section 202 has been made shall: (a) notify the applicant that he, or someone acting on his behalf, may make representations in writing to the authority in connection with the review; and (b) if they have not already done so, notify the applicant of the procedure to be followed in connection with the review. ... 8(2) If the reviewer considers that there is a deficiency or irregularity in the original decision, or in the manner in which it was made, but is minded nonetheless to make a decision which is against the interests of the applicant on one or more issues, the reviewer shall notify the applicant: (a) that the reviewer is so minded and the reasons why; and (b) that the applicant, or someone acting on his behalf, may make representations to the reviewer orally or in writing or both orally and in writing."

[18]Mr Lintott, for the London Borough of Enfield, submits in support of his appeal against the decision of the Circuit Judge:(1) the judge failed to consider whether regulation 8(2) applied;

(2) in fact regulation 8(2) did not apply because the Review Panel did not consider that there was a deficiency or irregularity in the original decision or the manner in which it was awarded;

(3) even if regulation 8(2) did apply, the question whether there should be an opportunity for Ms Lomotey to address the issues orally was a matter for the Review Panel;

(4) if regulation 8(2) did not apply as was the fact, regulation 6(2) allowed representations in writing and therefore envisaged an oral presentation as being truly exceptional. Nevertheless, there was no reason why a Review Panel should not allow oral submissions in an appropriate case. The decision whether to do so, however, could only be set aside if it was unreasonable in a Wednesbury sense;

(5) the regulations have been decided to be compliant with the Human Rights Act in the case of Runa Begum v Tower Hamlets London Borough Council

[2003] 2 AC 430

;

(6) in any event, Ms Lomotey was asked to deal with the issue of collusiveness and responded by not disagreeing that there was collusion; and

(7) as to Mr Whyte, (a) Ms Lomotey never included him on the Homeless Persons Enquiry Form and (b) on being asked whether she wished to do so, she said she did not as they were no longer together. In those circumstances Mr Lintott submits that there was no procedural unfairness on the part of the Review Panel and that the judge was wrong to hold that there was.

[19]Mr Sylvester Carrott for Ms Lomotey submits:(1) that the judge's finding that Ms Lomotey was not fully interviewed about Mr Whyte's situation is not challenged;

(2) that the judge was correct to decide that the Review Panel should have given Ms Lomotey an opportunity to explain the position both about Mr Whyte and the charge of collusion;

(3) that there was no need for the judge to find that regulation 8(2) was applicable because the Review Panel were under a duty to give Ms Lomotey an opportunity, quite apart from regulation 8, to rebut the propositions used to determine the case against her.

[20]He also submitted in his skeleton argument that the Review Panel did apply regulation 8(2) and did consider Mr Morrisey's decision to be defective because it had failed to take the position of Mr Whyte into account, and apparently because there was bad faith (which Mr Carrott never particularised). However, in oral submissions he has accepted before us that this is not a regulation 8(2) case; he has submitted that the position under regulation 6 is nevertheless that the Review Panel ought to have afforded Ms Lomotey the opportunity to rebut propositions which they used to decide the case against her.

[21]So as far as the regulations are concerned, it is clear that regulation 8(2) does not apply because the Review Panel did not consider that there was a deficiency or irregularity in the original decision.

[22]Mr Carrott's first point, that the judge's finding that Ms Lomotey was not fully interviewed about Mr Whyte's situation was not challenged, cannot get him home on its own, unless he is able to show that, as the judge held, Ms Lomotey should have been afforded an oral hearing or other further opportunity of explaining what is Mr Whyte's position.

[23]So the question comes down to this: whether or not the Review Panel in deciding the question took into account matters which had not been put to Ms Lomotey and ought to have been put to Ms Lomotey. Mr Carrott submits that indeed they did rely on such new material, and he points to the notes made by Mr Morrisey in response to the letter of submissions from Spicers of 16th January.

[24]In relation to the first point made in that letter which I have set out, Mr Morrisey made a note to the file in the following terms:

"... Ms Lomotey was specifically asked about her marital status and she described herself as single. She had made it known that David Whyte the father of her children was not allowed into the house because he and her brother had a very poor relationship. However, she specifically informed me that her relationship with Mr Whyte was over and he did not form part of her application."

[25]Mr Carrott submits that it was procedurally unfair for the Review Panel to take that into account because it was never put to Ms Lomotey that she had said to Mr Morrisey that the relationship with Mr Whyte was over and that he did not form part of her application.

[26]The truth of the matter of course is that Mr Whyte never did form part of the application which Ms Lomotey made to Enfield Borough Council. To that extent, Mr Morrisey's comment is entirely correct. It seems to me that all else is peripheral to that. Whether or not it is correct that she said in terms on 18th November, or at any other stage, to Mr Morrisey that her relationship with Mr Whyte was over, it was apparent that she was not saying at any time that she wanted to live with Mr Whyte. The application form contained the children and made no reference to Mr Whyte. That was the crucial fact. As I say, everything else is peripheral.

[27]It turns out, and it may well be that the local authority had in mind, that Mr Whyte had made his own application without referring on it to Ms Lomotey. That is not something that was stated in the comments made by Mr Morrisey, but again that matter seems to me entirely peripheral. The critical point, that no application was ever made that Ms Lomotey be accommodated with Mr Whyte, is the central matter. If she had been (or were again to be) specifically asked that question by the Review Panel, whether in writing or orally, it is difficult to see how the Review Panel could have reached any other conclusion than it did.

[28]The matter does not rest entirely there because we have been told, as was the judge, that in any event Mr Whyte is now off the scene, to put the matter colloquially. Again it is very difficult in those circumstances to imagine that if, as the judge envisaged, the local authority were to consider the matter again, whether they did so after written submissions or oral submissions from Ms Lomotey, they could come to any different conclusion.

[29]As far as the second matter is concerned, namely the question of collusion, Mr Morrisey in his note on the relevant paragraph in Spicers' letter says this:

"Ms Lomotey until this letter has always maintained that she and her brother mutually agreed for her to take her name off the mortgage in favour of her brother and then for him to issue her with a notice to quit and it suited both of them if the council rehoused her. Her response to LB Enfield that this act contributed to her being intentionally homeless was not to retract her initial statement but consistently to ask what else could she have done."

[30]Again the question of collusion was fully discussed with Ms Lomotey, both at the stage when she made her initial application in November and at the time of the discussion of the pre-intentional letter (as it is called) on 2nd December. The precise detail of exactly what was said is in my judgment again peripheral. The substance of the matter was twice put to her in the clearest terms and her response was made accordingly. She never sought to challenge any of the underlying facts, indeed they all came from her, being matters which were entirely within her own knowledge. The contemporary note of Mr Morrisey in relation to that is that she did not deny that collusion had taken place.

[31]In the case of Hobbs, to which I have already referred, there was an issue not merely as to whether there should have been the opportunity to make oral submissions, but an issue as to whether the critical facts had been put to the applicant. The majority of the court held that they had indeed been put to the applicant. Stuart-Smith LJ, at the top of page 146 of the report, says in terms that the local authority does not have to recall an applicant for a further interview and put matters again to him or her and seek their reaction after that has happened on one occasion.

[32]Lastly, Mr Carrott relied on Robinson v Brent LBC

(1998) 31 HLR 1015

, where the reviewer relied on an admission, without warning the applicant that the reviewer was going to rely on that admission. It seems to me that that authority is a long way from the present. There is no admission in the sense used in that case in this case. Ms Lomotey's account of the surrender and the notice to quit was her own account. Even if one were to call that a admission that was a matter that, as I have said, was fully discussed in the interviews with Mr Morrisey and does not have to be put again.

[33]In the circumstances, I have come to the conclusion that the learned judge was wrong to say that the Review Panel had acted in a procedurally unfair manner and was therefore wrong to say that they must consider the matter again. I would reverse the judgment and allow the appeal.

LORD JUSTICE PETER GIBSON: I agree. With all respect to the judge she was not justified in finding "an underlying concern over fairness" requiring the local authority to look again at its decision.

[35]The decision of the Review Panel, acting under section 202 of the Act, was an administrative decision by the local authority in the performance of the functions entrusted to it by Parliament, which left it as the sole arbiter of fact in determining whether or not an applicant is homeless, and intentionally homeless. That decision is one which can only be reached by a fair procedure complying with the rules of natural justice. That is not in dispute.

[36]We have been taken by Mr Carrott in his careful submissions for the respondent through the notes made by the appellant's officers. He has contrasted the contents of the decision letter with the notes, so as to draw attention to what he says was not specifically put to the respondent by the appellant. He has submitted that the failure to put such matters made the decision procedurally unfair. That submission was in substance what was accepted by

the judge when she said in paragraph 19:

"In my judgment the situation with respect to Mr Whyte, should in fairness have been fully explored with Miss Lomotey before a decision was made. Further, the question of alleged fraud over her surrender of the interest in her property should have been put to her fully, with an opportunity for her to deal with the issue. She was not given that opportunity."

[37]The rules of natural justice do not require more than that the substance of a point adverse to Ms Lomotey has been put to her. The notes made by officers of a local authority are not transcripts, and they must be approached with some caution if it is to sought to found thereon a submission that a matter has not been put simply because the notes do not specifically record the matter.

[38]But in the present case, for the reasons given by my Lord, I am far from persuaded that the procedure adopted by the appellant was unfair. Certainly in relation to the question of collusion, in my judgment it is plain that the matter was fairly and squarely put to Ms Lomotey in the interviews with her, and that she had full opportunity to deal with that allegation. As for Mr Whyte, the appellant was fully entitled to rely on the fact that Ms Lomotey herself did not include him on her Homeless Persons Enquiry form, despite being asked whether she wanted to. The panel had evidence before it from Mr Morrisey, the officer of the appellant, that he had asked her whether she wanted to include him, but her response was in effect that they were no longer together.

[39]In my judgment, there was nothing unfair about the procedures which were adopted in the present case. I too therefore reach the clear conclusion that this appeal must be allowed.

ORDER

Appeal allowed with costs under section 11(1) of the Access to Justice Act; the respondent's liability assessed as nil. (Order not part of approved judgment) ______________________________