Sheppard v London Borough of Richmond-Upon-Thames [2012] EWCA Civ 302

Case No B5/2011/2289[2012] EWCA Civ 302
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM KINGSTON-UPON-THAMES COUNTY COURT
(HER HONOUR JUDGE WILLIAMS)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Thursday, 23 rd February 2012
Before
LORD JUSTICE LEWISON
Between
SHEPPARDApplicantLONDON BOROUGH OFRespondentRICHMOND-UPON-THAMESRespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
The Applicant appeared in person. for in personMs Rowlands (instructed by Merton and Richmond Legal Services) appeared for Respondent.
Judgment
[1]On 10 February 2011 Ms Sheppard applied to the London Borough of Richmond for housing following the eviction of herself and her two children from accommodation that she was then occupying. By a decision letter dated 10 March 2011 the council decided that she had become intentionally homeless because, according to the council, the reason for her eviction was her persistent refusal, in breach of her tenancy agreement, to allow gas safety checks to be made. On 21 March Ms Sheppard requested a review of that decision under section 202 of the Housing Act 1996. The review upheld the original decision. .[2]Ms Sheppard then appealed to the county court under section 204 of the Act. An appeal lies on a point of law only. During the pendency of the appeal, she applied to the council for interim accommodation. The council has power to provide interim accommodation under section 204(4) of the Act, but the council refused to exercise that power.[3]The grounds of appeal to the county court were set out in Ms Sheppard’s Appellant’s Notice, and they were as follows:
“(1) Breach of Statutory Duty (2) Inadequate Enquir[i]es (3) Inadequate Statutory Review (4) Breach of Article 3 & 8(2), Human Rights Act 1998 (Statement of Case Enclose[d]) (5) Breach of S.21 of the Race Relations Act 1976 (6) Made no assessment (7) Failed to provide suitable accommodation”
HHJ Williams paraphrased those grounds of appeal as follows. First, whether the council had failed to carry out its statutory duty to provide emergency accommodation under section 188. Second, whether the council made sufficient inquiries given that their decision was made in a time period shorter than the maximum allowed, 56 days. Third, whether the council had failed to comply with Regulation 8(2) of the Review Procedures Regulations. Fourth, whether the council had acted in breach of Article 3 and/or 8 of the European Convention on Human Rights. Fifth, whether the council was in breach of section 21 of the Race Relations Act 1976. Sixth, whether the council failed to make a proper assessment of Ms Sheppard’s circumstances. And seventh, whether the council should have provided suitable interim accommodation.[4]The judge held that she did not have jurisdiction to make decisions about interim accommodation, and in my judgment she was plainly right about that. An appeal to the county court is only possible where the Act itself gives a right of appeal. The Act gives no right of appeal against a decision under section 188, although a decision by a council under that section is judicially reviewable on very limited grounds.[5]On the second ground, the judge said correctly that, under regulation 9 of the Review Regulations, the period within which the council was to notify their decision on the review was eight weeks. She held that the eight-week period was the maximum period and there was nothing to stop the council from reaching a decision more quickly than the maximum time allowed. That, too, was in my judgment plainly right.[6]On the third ground, she said that regulation 8(2), which requires a reviewing officer to give a “minded to find” notice if he is going to make a decision adverse to the applicant only applied where the reviewing officer found a deficiency in the original decision or the manner in which it was made. Since the reviewing officer found neither, regulation 8(2) was not engaged. That, too, was plainly right.[7]The fourth ground related to alleged breaches of Articles 3 and 8 of the Convention. Article 3 prohibits torture and Article 8 requires respect for a person’s home. Ms Sheppard’s argument is that the combination of these two articles means that she is entitled to be housed by the council, and that any order of the court requiring a person to leave accommodation where there is nowhere else for her to go is unlawful because of the provisions of the Vagrancy Act and the laws of trespass. However, the courts have consistently held that Article 8, even combined with Article 3, does not require the state to provide a person with a home. In my judgment, therefore, the judge was right in rejecting that ground of appeal.[8]So far as discrimination was concerned, the judge found no evidence to support the assertion. Ms Sheppard has asserted that the judge herself discriminated against her, but I can find no evidence to support that allegation.[9]Lastly, on the question of whether the council had adequately assessed Ms Sheppard’s needs, the judge in effect held that this was a question of fact for the council. Ms Sheppard’s main attack is on the original order for possession made against her. She says that she was illegally evicted. If that is right, she would have had a right of appeal against the landlord to set aside the possession order. The council, in its capacity as housing authority, does not perform the function of an appeal court, scrutinising judgments of the county court. The local authority must act on what the court has done. It is entitled to rely on the court order, and is not required to go behind it.[10]In my judgment, to the extent that any of these grounds raise arguable points of law, they do not raise an important point of principle or practice such as to justify a second appeal, nor do they have sufficient prospects of success as to give rise to a compelling reason for the court to hear an appeal.[11]At the outset of her application this morning, Ms Sheppard asked for a stay of the original eviction order; but that order has now been executed and Ms Sheppard is accommodated elsewhere, albeit that she says that her current accommodation is not satisfactory. A stay of an order cannot be granted where the order has already been executed. Ms Sheppard rightly says that, in some rare cases, the court can set aside a possession order, even after it has been executed, on the ground of fraud or oppression, but that is not the same as a stay. The application for the stay is, therefore, refused.[12]There is also one overarching reason why it would be wrong to grant permission to appeal. In the skeleton argument dealing with her application for a stay, Ms Sheppard reveals that she and her family have secured accommodation, consisting of a two-bedroom bungalow, in the private sector. In consequence, she is no longer homeless. As the council point out in their written observations, if Ms Sheppard loses that accommodation, she will be entitled to make a fresh application to the council, and the council will have to consider that application on its merits.[13]In those circumstances, the appeal has become academic. An appeal which is academic will not be allowed to proceed unless, first, it would raise some general point of importance; second, the respondent to the appeal agrees to it going ahead or is indemnified as to costs; and third, the court is satisfied that both sides of the argument will be properly ventilated. Even if these conditions are satisfied, it is still a question of discretion for the court. However, in my judgment, this case satisfies none of those three conditions. The appeal raises no point of general importance. The council does not agree to its going ahead, and there is no real possibility of Ms Sheppard paying the council’s costs. Since Ms Sheppard is representing herself, I am not satisfied that both sides of the argument will be properly ventilated.[14]For all those reasons, therefore, I refuse permission to appeal.

Order

Application refused