Lewis v London Borough of Havering [2006] EWCA Civ 1793

Case No B2/2006/2402[2006] EWCA Civ 1793
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ROMFORD COUNTY COURT
(HIS HONOUR JUDGE POLDEN)
Venue Royal Courts of JusticeDate Thursday, 23 rd November 2006
Strand
London, WC2
B E F O R E:
LORD JUSTICE SCOTT BAKER
LORD JUSTICE NEUBERGER
LORD JUSTICE RICHARDS
Between
LEWISAppellant- v -
Between
LONDON BOROUGH OF HAVERINGRespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
MR R. DUDDRIDGE (instructed by Messrs Hunt & Hunt) appeared for Appellant.MS C. BOLTON (instructed by Legal Services, London Borough of Havering) appeared for Respondent.
J U D G M E N T

LORD JUSTICE NEUBERGER:

[1]The issues in this appeal concern a local housing authority’s powers under section 204(4), and the court’s powers under section 204A, of the Housing Act 1996. Under Part VII of the 1996 Act, a local housing authority who have reason to believe a person is homeless or threatened with homelessness have a duty to investigate whether he is eligible for assistance and, if so, what if any further duty is owed to him. That duty is normally to offer him housing on a relatively long-term basis (which I will call permanent housing) if he is a) homeless, b) eligible, and c) in priority need, all these expressions being defined in the 1996 Act. One of the grounds of priority need, which is said to apply in this case, is “vulnerability as a result of mental illness or handicap or physical disability or other special reasons” (see section 189(1)(c)). Once the authority has concluded their investigation, they must inform the applicant of their decision. If it is adverse, they must give him reasons and inform him of his right to request a review -- such a review is provided for in section 202. An applicant dissatisfied with the result of such a review may appeal on a point of law to the county court under section 204(1).[2]Where an authority believe that the applicant may be homeless, eligible and in priority need, they have a duty to provide him with housing on a temporary basis while they carry out their investigations -- see section 181(1). By virtue of section 181(3), that duty ceases on the applicant being informed of an adverse decision on his application. Thereafter, the authority have a statutory discretion, but not a duty, to continue providing him with housing pending any review under section 202 -- see section 188(3) -- and/or pending an appeal to the county court under section 204(1) -- see section 204(4). An appeal against the refusal to provide such temporary housing accommodation may be brought by an applicant under section 204A.[3]In R v Camden London Borough Council ex parte Mohammed [1998] 30 HLR 315, Latham J considered the way in which an authority should exercise their discretion under section 188(3). His observations were summarised in a head-note in the report of the case, which was quoted with approval by Tuckey LJ in R v Brighton & Hove Council ex parte Nacion [1999] 31 HLR 1098-1099:
“In exercising their discretion the authority have to balance the objective of maintaining fairness between homeless persons in circumstances where they have decided that no duty is owed to the applicant, and proper consideration of the possibility that the applicant might be right and that to deprive him of accommodation could result in the denial of an entitlement. (4) …certain matters will always require consideration, although other matters may also be relevant: (a) the ones requiring consideration were the merits of the case and the extent to which it can properly be said that the decision was one which was either contrary to the apparent merits or was one which involved a very fine balance of judgment; (b) whether consideration is required of new material, information or argument which could have a real effect on the decision under review; (c) the personal circumstances of the applicant and the consequences of an adverse decision on the exercise of the discretion.” (a) the ones requiring consideration were the merits of the case and the extent to which it can properly be said that the decision was one which was either contrary to the apparent merits or was one which involved a very fine balance of judgment; (b) whether consideration is required of new material, information or argument which could have a real effect on the decision under review; (c) the personal circumstances of the applicant and the consequences of an adverse decision on the exercise of the discretion.”
[4]On the following page of the Nacion case, page 1100, Tuckey LJ said this:
“As I have made clear in the course of this judgment, the provision of temporary accommodation pending appeal (and the same applies pending review) is entirely in the discretion of the council. Where a council, as in this case, has obviously considered the material factors which Latham J. identified in his judgment, it is an entirely futile exercise to seek to say that in some way that discretion was wrongly exercised by coming to the High Court for judicial review and saying, as this applicant does, ‘We have an arguable case on the appeal to the County Court’. Applications for judicial review on this basis should be strongly discouraged. It is only in a very exceptional case that there will really be any reasonable prospect of interesting the court by way of judicial review to interfere with the exercise of the very broad discretion which the council have, bearing in mind that they exercise it, knowing the circumstances of the applicants, the range and availability of accommodation in their area and the other matters which were identified in the passage I have cited from the case of Aliand Nairne.For those reasons I would dismiss this renewed application.”
[5]These passages from the judgment of Tuckey LJ were quoted with approval and applied by this court in Francis v Kensington and Chelsea London Borough Council 50 HLR 715, at 724 to 726. Unlike the first two cases I have mentioned, that was a case, like this, where the court was considering an appeal under section 204A against the refusal of a local authority to provide interim housing accommodation pending an appeal under section 204(1).[6]The present appeal arises out of the following facts. Mr Russell Lewis made an application to Havering London Borough Council (“Havering”) under Part VII of the 1996 Act, on the basis that he was homeless, eligible and in priority need on 18 October 2005. That application was considered and rejected by Havering on 30 June 2006 on the ground that they considered that he was not in priority need. On 18 July, Mr Lewis sought a review of that decision. On 1 September 2006, the review decision, upholding the decision that he was not in priority need was sent to Mr Lewis. Having been told that he would be appealing that decision under section 204(1), Havering informed Mr Lewis on 8 September 2006 that they did not intend to provide him with interim accommodation, pending the outcome of that appeal.[7]On 19 September 2006, Mr Lewis appealed to the Romford County Court under section 204(1) against Havering’s decision that he was not in priority need and their consequent refusal to provide him with permanent accommodation. In the same application he sought an order under section 204A, quashing the decision under section 204(4) not to grant him interim accommodation. On 25 September 2006, HHJ Platt allowed the section 204A appeal, and quashed Haverings’s decision not to provide Mr Lewis with interim accommodation in accordance with the letter of 8 September, on the grounds it contained no reasons. On 20 October 2006, Havering sent Mr Lewis another letter stating that they had reconsidered the question of interim accommodation and decided not to provide him with such accommodation. Ten days later Mr Lewis was notified that he could challenge that decision under section 204A. He duly appealed against that decision and his section 204A appeal was heard on 7 November 2006 by HHJ Polden, who dismissed it.[8]The primary complaint of Mr Lewis before HHJ Polden was that, when considering “the merits of the case, and the extent to which it can properly be said, that the decision was one which was either contrary to the apparent merits or was one which involved a very fine balance of judgment”, Havering had failed to take into account the grounds of appeal contained in his Notice of Appeal and skeleton argument relating to his section 204(1) appeal. In other words, his principal complaint was that, when considering “the merits of the case” and “the decision”, whether he should be provided with permanent housing, Havering should have taken into account, and failed to take into account, the grounds set out in his section 204(1) appeal against “the decision” and in support of “the merits of [his] case” for permanent housing.[9]HHJ Polden rejected that argument, and it is on that basis that Mr Lewis appeals to this court with permission given by me last week. He says that the decision of Havering in the letter of 20 October 2006 under section 204(4), refusing to give the interim accommodation was unlawful, and should be quashed, because it failed to consider his grounds in the appeal under section 204(1) (which I shall call the main appeal).[10]To that complaint, Havering gives three answers. First -- although it is fair to say that it is not pursued in this court very hard, but it did form the main reason for the decision below -- they did not have to consider the grounds of appeal put forward in the main appeal. Secondly, in the alternative, they did in fact consider those grounds. Thirdly, if they did not do so and should have done, it made no difference to the outcome.[11]I turn to the first argument, namely that, when considering his application for interim housing, whether Havering should have considered the grounds advanced by Mr Lewis in the main appeal. In the absence of any authority to the contrary, I would have thought that the answer to that must be in the affirmative. A housing authority, when considering an application for an interim accommodation under section 204(4), is obliged to take into account “the merits of the case” and “the decision”, as I have described them. If they had been provided with the grounds of appeal which supported the applicant’s “case” in his own words, and formed the basis on which the applicant attacked “the decision”, it would seem to me to be surprising if the authority was entitled simply to ignore that document. As Richards LJ said during argument, if a letter had been sent on behalf of Mr Lewis in this case to Havering when inviting them to consider the application for interim housing under section 204(4), setting out why he considered the decision not to give him permanent housing was wrong, that is something that Havering would have been obliged to take into account. It is therefore difficult to see why Havering should be entitled not to take such arguments into account simply because they are contained in a Notice of Appeal or a skeleton argument prepared on behalf of Mr Lewis, which was sent to them. It would appear to me to be contrary to normal principles applicable to decisions made by public authorities if a relatively simple document, that clearly impinges on one of the very issues which an authority has to consider, and which emanates from the very party who will be affected by that decision, can simply be ignored by the authority when making the decision.[12]Two objections have been taken to this conclusion. The first is that in many cases, indeed in the great majority of cases, at the time a housing authority is considering an application for interim housing under section 188(3) or 204(4) there will be no main appeal, or at least they will not have been served with any document in relation to or in support of the main appeal. That is probably true, but it does not answer the question as to the appropriate course to be taken by the council where (albeit relatively unusually) they do have such a document.[13]The second argument, which is more formidable, is that it would throw an unfair burden on a housing authority, or on their officer who considers the application for interim housing, if they have to consider in detail legal arguments or indeed factual arguments set out by the applicant in support of the main appeal, ie the section 204(1) appeal. If there was a duty on the housing authority or the officer to carry out a detailed appraisal of the grounds of Notice of Appeal, and indeed then to explain what their thoughts and conclusions were in relation to each such ground in every case, then that would be a point of considerable force, but in my judgment there is no such duty.[14]Consideration of “merits of the case” and “the decision” (in the passage I have quoted from headnote in the Mohammed case) does not require a housing authority or their officer to carry out anything like the sort of meticulous exercise that a judge would carry out when considering each ground of appeal. It would, in my opinion, be unhelpful, indeed positively dangerous, for this court to try to set out any general applicable guidance as to the correct approach to be adopted. However, it would often be enough, in a case where the housing authority has been served with a Notice of Appeal (and skeleton argument) in a main appeal, to make reference to having considered the document (or documents) either specifically or in some compendious way.[15]In many cases, it would be unnecessary to refer to the grounds in the Notice of Appeal any further. In other cases there may, as it was discussed in argument, be a very important and striking ground which does require a reasonable housing authority or officer to make specific comments or specific explanations as to why it is not seem to be significant or decisive. In other cases there may be ten or more different grounds of appeal, and the contention that, in any but the most utterly exceptional case, it would be appropriate for each of those grounds to be expressly considered and discussed separately, only has to be stated, in my view, to be rejected. Housing authorities and housing officers have to be accorded a measurement of toleration as to the approach they adopt; the sort of consideration which has to be given to the Notice of Appeal (or skeleton argument) must depend on the particular case, but it certainly would rarely if ever involve the sort of detailed, meticulous approach which is feared by Havering in the present case.[16]There are no authorities which, in my view, helpfully impinge on this point. It is possible to identify cases in which it appears that the Notice of Appeal in the main appeal had been looked a by the housing authority in a case such as this. There are passages in judgments in other cases which, if taken on their own, might suggest that it would be unnecessary for them to do so. However, I do not consider that these cases assist in the present appeal because the point at issue was not being considered, and each counsel should be thanked for not taking up unnecessary time in referring to authority.[17]The second issue is whether Havering in fact considered the Notice of Appeal in the main appeal. I turn to the terms of the letter of 20 October, the decision letter under section 204(4) after remission by the county court. It was prepared and signed by Mr Okeremi. After informing Mr Lewis of the decision that he would not be provided with interim housing pending appeal, the letter set out, in slightly more summary form than I have done, the effect of Latham J’s decision in the Mohammed case. The letter then said:
“I have taken all these three factors into account. In relation to the first factor, namely the merits of the original decision, I have considered the decision of 30th June 2005 [I interpose to say that is the original decision refusing him permanent housing on the basis that he was not in priority need], and my review decision of 1st September 2006 [that was the review decision upholding that decision]. In relation to the second [decision], namely any new information provided the only additional information has been the letter from Mr Philip Ma dated the 8th September 2006, the contents of which have been considered by the panel and their medical advisors. Finally, I have taken your client’s personal circumstances into account in accordance with the third factor, including the consequences, particularly upon his health in relation to a decision not to provide him with interim housing.”
[18]The letter then discussed the evidence which had been provided by Lewis’s GPs and his psychologist Mr Ma, and an assessment from his counselling psychologist, and went on to say that those reports had been “referred to the council’s medical advisor for recommendation.” In almost two closely-typed pages, the letter then considered quite carefully the nature of the evidence relating to Mr Lewis’s physical and mental health, and explained that it was not thought to be sufficient to justify interim accommodation.[19]The first question is whether, on a fair reading of that letter, the decision appears to have taken into account the terms of the Notice of Appeal in the main appeal. In my judgment, it is a fair inference -- and it is no more than an inference -- that that was not considered, at least as part of the reasoning. The specific documents which had taken into account on “the merits of the original decision” were the original decision letter of 30 June 2005 and the review decision letter of 1 September 2006. Given that the letter of 20 October 2006 appears to have been carefully drafted, and that it makes express reference to a number of documents, it seems to me that it is a fair inference that, where a document is not referred to, it has not been considered. As a result, Havering sensibly have not really sought to challenge the contention that it appears from the face of the letter that the Notice of Appeal was not considered.[20]However, before the judge, there was evidence from Mr Okeremi, who wrote the letter of 20 October 2006, to the following effect: ”3. In accordance with the order [i.e. the order of HHJ Platt remitting the section 204(4) decision] I reconsidered all the documentation that had been forwarded by the [applicant] and his legal representation … 4. I did not think there was any merit to the appeal, it was not a finely balanced decision.”[21]As I understood it, Mr Duddridge, who appears on behalf of Mr Lewis, accepted that this evidence, if admitted, was an indication that the Notice of Appeal in the main appeal, had been considered because it had been served personally on the council by Mr Lewis’s solicitors.[22]In those circumstances, the question is whether it is open to Havering to say, as they do, that any defect in the decision letter of 20 October 2006, has, as it were, been remedied. The circumstances in which a local authority or other public body can add to the reasons given for a decision, when those reasons have been challenged, was discussed in some detail in R v City of Westminster ex parte Ermakov 28 HLR 819, and the topic was considered more recently in the case of Hijazi v Royal Borough Kensington and Chelsea [2003] HLR 72. In the latter case, Dyson LJ said this: “31. There has been a good deal of authority on the question of whether, and in what circumstances, a decision-maker may, in the context of a legal challenge to a decision, supplement the reasons he gave for his decision at the time it was made. But in my judgment, for the purposes of this appeal, it is not necessary to travel beyond the decision of this court in Ermakov, where, in what has come to be regarded as a classic exposition of the relevant law, Hutchison LJ reviewed the authorities comprehensively in the context of a homeless housing appeal. The essential part of his judgment for present purposes appears in the passage starting at page 315H: ‘(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 p 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 Hijazi v Royal Borough of Kensington and Chelsea [2003] EWCA Civ 692 (07 May 2... Page 8 of 10 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 decisionmaker, 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. Hearing would be made longer and more expensive.’ “32. The statement of Mr Waddington purported to show that(a) he had taken Dr Browne's report into account; and(b) he considered that the report did not take the medical evidence significantly further, since it did not purport to deal with the appellant's state of mind in or around April 2000. As regards (a) I see nothing objectionable in a decision-maker making a subsequent statement in which he identifies the material that he took into account in the course of the decision-making process. Where this occurs he is not giving or supplementing the reasons for his decision: he is merely stating what material he took into account in reaching the decision. Even if this ought properly to be characterised as supplementing the reasons for the decision, it is at most an elucidation of those reasons and is not, in my view, objectionable. In the course of argument, Mr Harrop-Griffiths accepted that the statement could properly have been admitted by the judge to show that Mr Waddington had considered and taken Dr Browne's report into account.” ‘(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 p 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 Hijazi v Royal Borough of Kensington and Chelsea [2003] EWCA Civ 692 (07 May 2... Page 8 of 10 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 decisionmaker, 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. Hearing would be made longer and more expensive.’[23]On the face of it at least, it seems to me that an application of Dyson LJ’s observations in the present case would result in it being open to Havering to rely on the evidence contained in paragraphs 3 and 4 of Mr Okeremi’s witness statement. On the face of it, therefore, it would appear that the Notice of Appeal in the main appeal was considered and that what otherwise would be a defect in the decision has, as it were, been remedied.[24]Mr Duddridge, on behalf of Mr Lewis, really advances two arguments against this. Primarily, he says that whatever may have been the position if the statements in paragraph 3 and 4 of Mr Okeremi’s witness statement on 3 November 2006 had been in the letter of 20 October 2006, it is not good enough, and not fair on Mr Lewis, if a brief statement that all the documentation was considered and that the reviewer “did not think there was any merit in the substantive appeal” or that it was “a finely balanced decision” is sufficient if one is to rely on it, as Havering seek to do, after the decision has been made and appealed. He says that, bearing in mind the sort of factors which were identified in paragraph (2) in the Ermakov case as quoted by Dyson LJ, and in particular the difficulty an applicant has in challenging “the bona fides of the decision maker’s explanation as to real reasons”, it would be simply unfair if the applicant can be, as it were, fobbed off with a couple of short paragraphs in a witness statement in this way in a case such as this. Alternatively, he said that he was mounting an attack on the reasons given in the witness statement.[25]The circumstances in which it is open to a housing authority to rely on additional reasons, particularly when so shortly expressed, must be case-sensitive. In some cases, a housing authority should not be able to put forward additional reasons or information, which may seem to fall within what Dyson LJ held was permissible in paragraph 32 of the Hejazi case, if it would be genuinely unfair on an applicant. However, bearing in mind a) the review decision of 1 September 2006 was made by Mr Okeremi, the very person who wrote the letter of 20 October 2006, and (b) the nature of the grounds of appeal on the main appeal which, it is said, should have been taken into account (and were taken into account according to paragraph 4 of his witness statement), it seems to me that there is no unfair prejudice in allowing this evidence to go in in the present case.[26]In his review decision of 1 September 2006 in which he reconsidered Mr Lewis’s application for permanent accommodation, I have not so far referred to (other than the most general terms), Mr Okeremi dealt in some detail with the grounds on which it was said that Mr Lewis had priority need, and with his circumstances as they were claimed to be. In his letter of 20 October 2006, as I have said, Mr Okaremi dealt in considerable detail with the further evidence which had been produced relating to Mr Lewis’s circumstances. When one turns to the grounds of appeal in the main appeal, the section 204(1) appeal which forms the basis of the present attack on the decision, it seems to me that(a) they rehearse some of the points relating to Mr Lewis’s circumstances which had already been raised;(b) they identify one or two alleged misunderstandings on the part of Mr Okeremi as to those circumstances; and(c) they raise one or two alleged failures on the part of Mr Okeremi to consider certain aspects of Mr Lewis’s circumstances.[27]In my view, what these grounds amount to is contending that there were matters which were before Mr Okeremi, when he made the decision on 1 September, which he did not take properly into account, and that he should have taken them into account when considering the first of the factors identified by Latham J in the decision of 20 October. It seems to me that it is perfectly proper, bearing in mind(a) the nature of these points,(b) the relatively full and careful terms of the decisions of 1 September and 20 October, and(c) the fact that Mr Okeremi was the decision maker on both 1 September and 20 October, for him then to say that he had read those points but that they took matters no further in his opinion. It is true that he did not say that in terms in his witness statement, but, in my opinion, that is plainly the effect of what he said. On the facts of this case at any rate, this was evidence which it was permissible for the Council to rely on. In those circumstances I would hold that, although Mr Okeremi was obliged to take into account the Notice of Appeal and its contents in the main appeal and that, on the face of his decision letter of 20 October 2006, he did not do so, Havering were entitled to put forward evidence from him to show that he did so, and that, on the facts of this case, the brief contents of paragraphs 3 and 4 of his witness statement sufficed (albeit just) to dispose of what otherwise might have been a successful attack on the decision letter of 20 October.[28]In those circumstances, it is unnecessary to consider the third issue. Accordingly, with renewed gratitude to both counsel for the efficient way in which they put their arguments orally and the fuller way in which they put their arguments in writing, I would dismiss this appeal.

LORD JUSTICE SCOTT BAKER: I agree.

LORD JUSTICE RICHARDS: I also agree.

Order

Appeal dismissed.