Slaiman, R (on the application of) v London Borough of Richmond Upon Thames [2006] EWHC 329 (Admin)

Case No CO/8783/2005

[2006] EWHC 329 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Thursday, 9 February 2006

Strand

London WC2A 2LL

B E F O R E:

MR JUSTICE HUGHES

Between

THE QUEEN ON THE APPLICATION OF RADHIA SLAIMANClaimant

-v-

Between

THE LONDON BOROUGH OF RICHMOND UPON THAMESDefendant

Computer-Aided Transcript of the Stenograph Notes of

Smith Bernal Wordwave Limited

190 Fleet Street London EC4A 2AG

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MR JIM SHEPHERD (instructed by South West London Law Centre) appeared for CLAIMANT

MR MATTHEW HUTCHINGS (instructed by London Borough of Richmond Legal Department) appeared for DEFENDANT

J U D G M E N T

[1]MR JUSTICE HUGHES: This claim for judicial review is brought to challenge the decision of a housing authority to decline to extend the time for a review under section 202 of the Housing Act 1996 of a decision which it had reached in the course of dealing with a homelessness application.

[2]The claimant is a lady of Iraqi origin in her mid-60s. In either March or May 2005 she sought accommodation from the housing authority as a homeless person. The core of her assertion was that she had left her husband because he had been violent to her. There was no question about her being eligible, to use the term of art in the statute, within section 185 of the Act. At the time of her application she had moved pro tempore from the matrimonial home in Hampton to stay with a friend near to Birmingham.

[3]If the claimant was indeed fleeing domestic violence then that went to demonstrate both that she was homeless for the purposes of section 175 and, more importantly, that she was in priority need; that is because for the purposes of section 175 a person is not to be regarded as having accommodation unless it is reasonable for him or her to continue to occupy it. Section 177 provides:

"It is not reasonable for a person to continue to occupy accommodation if it is probable that this will lead to domestic violence ... against him ... For this purpose 'domestic violence' in relation to a person, means violence [from a person] with whom he is associated or threats of violence from such a person which are likely to be carried out."

[4]As to priority need, Article 6 of the Homelessness (Priority Need for Accommodation) (England) Order 2002 provides: "A person who is vulnerable as a result of ceasing to occupy accommodation by reason of violence from another person or threats of violence from another person which are likely to be carried out" shall be regarded as a person in priority need.

[5]If a person is eligible, homeless, in priority need and is not intentionally homeless, then he or she is owed by the housing authority the duty set out in section 193. Except in circumstances which are not relevant here, that section provides, by subsection (2), that the authority "shall secure" accommodation available for the applicant; and, by subsection (3) (as now amended) that obligation is an indefinite one.

[6]The housing authority initially concluded that the claimant did indeed fulfil each of these conditions. By a letter of 14 June 2005 it notified her that its inquiries were complete and that she had found been to be(i) homeless,

(ii) eligible,

(iii) in priority need and

(iv) not intentionally homeless. Accordingly the letter set out acceptance of the duty established by section 193.

[7]However, on 4 August 2005 arrangement was made for the claimant to view a possible property. It then transpired that she was no longer staying in Birmingham but rather, as it appeared, was living at the matrimonial home with her husband. I should record that at different stages she has, if the housing officer is correct, advanced inconsistent statements about when and in what circumstances she had returned to the matrimonial home. However, on her own case as now set out in a recent witness statement for the present proceedings, she had, as at 4 August 2005, been back in the matrimonial home for a fortnight; and it appears to be common ground that this is what the housing officer was told on 4 August by her. Certain it is that the housing officer thus understood her. Her present case is that she was there only because she had outstayed her welcome at the friend's near Birmingham and had nowhere else to go. It has previously been asserted on her behalf by her solicitors additionally that she had returned in order to see a counsellor she was attending and to collect a repeat prescription. The housing officer records that on 4 August the claimant told her that she had returned to the matrimonial home because she wanted to see her son; that she was sharing her husband's bed and that her complaint was limited to the fact that he shouted at her if she demurred to his sexual requests or demands.

[8]On the day following that meeting on 4 August the housing authority wrote the claimant a letter dated 5 August. It sets out the housing officer's recollection of what the claimant had said the day before. It then said this:

"This council accepted a duty towards you as you were fleeing domestic violence from your husband and in fear of your safety. As a consequence of you returning [to the address] to your husband, this council is not satisfied that you are in fear of your safety and has discharged its duty towards you and your application for permanent accommodation will be cancelled."

There then followed this sentence:

"You have a right to request a review of this decision, if you wish to do so please write to the Team Leader ... within 21 days of the date of this letter."

That last sentence was a reference to section 202 of the 1996 Act.

[9]Section 202 provides, so far as relevant, as follows:

"202(1) An applicant has the right to request a review of... (b) any decision of a local housing authority as to what duty (if any) is owed to him under sections 190 to 193 and 195 to 197..."

The section goes on to provide, by subsection (3):

"A request for review must be made before the end of the period of 21 days beginning with the day on which he is notified of the authority's decision or such longer period as the authority may in writing allow."

It has been accepted between the parties in this application, and I accept, that the principal and important features of the relevant law are as follows: (1) Once a housing authority has been satisfied that the applicant is homeless (other than intentionally), eligible and in priority need the duty under section 193 arises. That duty is not brought to an end by a subsequent change of circumstances. In particular, it is not brought to an end by the disappearance of the priority need. The section 193 duty may come to an end if changes of circumstances of the kind specifically set out in section 193 itself (beginning at subsection (3)A) occur. It is not, however, brought to an end or "discharged" by other changes of circumstance subsequent to the decision that the duty has arisen. For that proposition see R v Brent London Borough Council ex parte Sadiq, a decision of Moses J (as he then was) in this court on 29 June 2000, CO/544/2000. See also the decision of Latham J (as he then was) in H v Lambeth Borough Council ex parte Miah

[1994] 27 HLR 21

. (2) However, a housing authority may rescind its original decision to accept the section 193 duty if it subsequently becomes clear that that decision was reached as a result of a fundamental error of fact. That is so whether the error arose through innocent mistake, or as a result of fraud, or of anything in between. For that proposition see H v DacorumDistrict Council ex parte Walsh

[1991] 24 HLR 401

and, more importantly, Porteous v West Dorset District Council

[2004] EWCA Civ 244

. In other words, fresh evidence of the original state of affairs may legitimately lead to a rescission of the decision to accept the section 193 duty. But a change of circumstances, unless it is within the express provisions of section 193, does not bring the duty to an end. (3) The purpose of a review under section 202 is to address the question which is being reviewed afresh. It is addressed normally via a more senior officer of the authority. He may sometimes choose to hold some kind of hearing. The reviewer is not limited to deciding whether the original decision was right; nor is he limited to the material which had been available at the time of the original decision. The reviewer may have regard both to evidence obtained after the original decision and also to events which have occurred after the original decision. His task is to exercise his judgment afresh. For that, see the decision the House of Lords in Mohamed v Hammersmith and Fulham Borough Council

[2002] 1 AC 547

[10]The letter of 5 August having been written, no request for a review was received within 21 days. Approximately six weeks after the letter the housing authority received a letter from solicitors now instructed for the claimant dated 20 September. Put shortly, the solicitors asserted the claimant's instructions that she had gone home only out of necessity, and that although a friend had read her the letter of 5 August including, it would appear, the reference to a right to seek a review, the friend had not read out the reference to a time limit. The claimant does not herself read English and she was dependent on help. The solicitors went on in that letter to ask for a review, and recognised that they needed to seek a discretionary extension under section 202(3). It follows that that request was something between three and four weeks out of time.

[11]The housing authority replied promptly on 26 September declining to extend time. Subsequently, in the face of a warning that judicial review proceedings were in contemplation, the authority agreed to withdraw that refusal and to address the question of extension of time afresh. For that purpose it sought an interview with the claimant in order to inform the decision-making process. That interview took place on 19 October, the claimant being attended by an interpreter. More or less verbatim, and apparently contemporaneous, notes were kept by the housing officer. There is, I have no doubt, scope for debate about what the claimant precisely said and perhaps about what she meant to say at some points in that interview. It may be possible to argue that she was at some points perhaps at cross-purposes with her questioner. On the face of it, however, she said that a friend had read her the letter of 5 August including the stipulation of a 21-day limit in which to seek review. On the face of it she said that that had happened approximately 10 days after the letter arrived. I ought to record for the sake of completeness that subsequently, and in the course of these proceedings, the claimant has said that the letter of 25 August had actually been read to her twice. The first time it had been read by somebody who left out the 21-day reference; the second time, she now says, it had been read at a refuge centre by somebody who read out all of it but that had occurred after the 21-day period had already elapsed. There is now a witness statement from the named person at the refuge centre who remembers reading the letter out and places the time after the elapse of the 21 days. Of course that witness cannot help about what the claimant knew or did not know before their conversation, and the question which matters is what material the housing officer had on which to make the decision that was made, rather than what material has emerged subsequently.

[12]The interviewer also traversed in some detail the question of whether the claimant ever had really been fleeing from domestic violence. The suggestion was quite firmly put to her that she had exaggerated her fear of her husband in order to obtain better housing; that the real reason for not liking her existing matrimonial home was connected principally with neighbourhood disorder and other complaints; and that her complaints against her husband were indeed limited, as the housing officer asserts she had said on 4 August, to his becoming upset and shouting at her, particularly if there were sexual disagreement. All those suggestions were quite firmly put. The housing officer conducting the interview had access to a good deal of material, including quite a lot of information from the claimant's general practitioner. She put some of that to the claimant. The interview represented quite a rigorous cross-examination of the claimant, albeit she had an interpreter present.

[13]The claimant maintained in the interview her assertion that her husband had beaten her. On other topics she was not altogether consistent. Among the things she appeared to say was that she had not been living at the matrimonial home for two weeks prior to 4 August, but had only called to collect medication. That is to be contrasted with what she said on 4 August and what has been said since in these proceedings. She was asked in the interview where she had been in a period in September and August when she had not been at the matrimonial home; but she did not say. Whereas previously she had spoken of sleeping in the same bed as her husband, she now said that she had slept on the floor on such occasion as she had been at the matrimonial home.

[14]Immediately following the interview, the housing authority provided its decision on the application for an extension of time by way of letter of 21 October. The authority set out the fact of interview. It set out that its approach to extending time was to proceed from its understanding derived from case law, that the purpose of the power to extend was to enable the council, if appropriate, to grant an indulgence to a homeless person where a claim for review may be deserving enough to override the failure to act at the time; but also that the council regarded finality an homelessness decision-making as an important aim and that upholding the 21-day time limit promotes administrative efficiency in the appropriate use of resources. Thus in the council's view an extension should only be granted where there is good reason to do so, each case being considered on its individual facts. There is no criticism of that statement of approach.

[15]The letter, which runs in all to nearly three pages, then sets out the explanation which the claimant was offering for the omission to seek review in time. The authority concluded that it was an explanation which it did not accept. It said that allowance had been made for the difficulties which may arise through the use of interpreters, that it appeared that the claimant had known where to turn to for help, and that on the basis that approximately ten days after the date of the letter had been read to her in full she knew that she had 21 days to respond and plenty of time to do so. The authority's letter then proceeds as follows:

"Conclusion In the absence of any good reason for missing the 21 day time limit and given the significant period of delay, my decision is not to extend the time limit for your request for a review. In those circumstances, I do not need to go on to consider the merits of the proposed review. However, I am satisfied that the reasons given in the decision of 5 August 2005 were inadequate. The issue on the review would have been whether the council's decision of 14 June 2005 has based on a fundamental mistake of fact, entitling the council later to withdraw it. In my view, there is a prima facie case that the decision of 14 June 2005 was based on a mistaken belief that you were fleeing physical violence from your husband."

The writer then went on to set out the reasons for taking the view that she had expressed. She concluded as follows:

"Since I have decided to refuse to grant an extension of time because of the lack of any adequate explanation for the delay, I do not need to say any more about the merits of the review. However, I would make it clear that, even taking into account the merits of the review, my decision would have been the same."

That letter of 21 October is the decision-letter to which this challenge by way of application for judicial review is made.

[16]There followed on 24 October a further request from the solicitors to the local authority to reconsider, in particular in the light of the claimant's case that she had indeed been unaware of the time limit until after it had passed. By further letter of 26 October the local authority declined to alter its decision. The same writer who had been present and conducted the interview added this:

"Having heard the manner in which [the claimant] answered the question at interview, I am satisfied that this answer was not a result of confusion or a failure to understand the question."

[17]Logically the first submission of Mr Shepherd's which I ought to address is the one which understandably he did not put at the forefront of his argument. His first submission is that no reasonable authority could have concluded that the claimant was aware of the time limit before it had expired. He submits that anybody assessing the claimant's statements on the topic needed to have regard to her age, to the fact that her English is poor, to the fact that there has been domestic strife of some kind, that such matters are or may well be a very difficult topic for a lady of her years and background to address with strangers, and to the fact that, although she had an interpreter, there was a rigorous cross-examination of a kind that it is unlikely that she would have foreseen, at any rate in full. With the necessity for any reasonable decision-maker to take those factors into account I agree. But it is wholly impossible to suggest that a housing officer who had seen this lady and had recorded her statements both on 4 August and on 19 October was not entitled to come to the conclusion that she had known of the time limit before it had expired. The function of this court is not to substitute its own view without seeing her, of what she was saying or of her credibility, for the view of the person who was there and who had the decision to make. It is perfectly plain that the authority's officer was entitled to come to the conclusion that she did, right or wrong. Indeed there was quite a lot of evidence apparently pointing in that direction.

[18]Mr Shepherd's principal submissions are a little more complex. I hope I do them justice in summarising them in this way. First, the letter of 5 August by which the local authority asserted that it no longer had any duty under section 193 was a letter which purported to exercise a power which the authority did not possess. It is, says Mr Shepherd, couched in terms of discharge of a duty which previously existed, and thus offends the first principle of law which I have set out as explained in the cases of Sadiq and Miah.

[19]Second, submits Mr Shepherd, when the authority comes to consider an application for an extension of time for review under section 202(3), it must always take into account the merits of any proposed review, at least where these merits are, on the face of them, very strong.

[20]From that he proceeds to his third proposition which is that the merits of a proposed review were extremely strong for the claimant because, to put it in shorthand form, this was a Sadiq case and not a Porteous case and therefore, on review, was bound to succeed. He adds, as a supplemental submission, that the case of Mohamed does not allow a housing authority to replace a bad decision which it had no power to make with a decision on quite a different basis. Additionally, he says that, even if the claimant was not bound to succeed for that reason on review, she had a strong prima facie case on the original merits as to whether she had a priority need or not. For all those reasons he submits that the authority was in this case, whatever may have been the position in others, bound to consider the merits and to balance them against the period of extension sought and the reasons advanced for the omission to seek a timely review. Applying that approach he submits that no reasonable housing authority could have refused the extension sought.

[21]Fourthly, Mr Shepherd submits that, at the very least, this must be so where the effect of a refusal of an extension of time is that the claimant loses the opportunity to meet a new basis for a decision - that is to say, not that the duty which previously existed had come to an end, but that it had never existed in the first place.

[22]The conclusions to which I have come are these. First, the terms of section 202(3) provide the authority with an unfettered discretion. The statute does not, as some statutes do, set out factors which are to be considered, still less does it supply a test.

[23]The exercise of the discretion was addressed by the Court of Appeal in R(C) v London Borough of Lewisham

[2003] EWCA Civ 927

. At paragraph 43 the Court of Appeal adverted to the fact that once the 21-day time limit had expired the applicant is at the mercy of the housing authority's discretion. At paragraph 48 the court set out the clear purposes of the statutory scheme thus:

"The purpose was, therefore, to lay down the procedures and time limits to enable the orderly management by the local housing authority of its precious supply of housing but also to enable it, if it is appropriate, to grant an indulgence to the homeless person on as important a matter as his or her housing where a claim for review may be deserving enough to override the failure to act in time and so keep the door open for further assistance."

It is quite apparent that the decision-letter in this case was written with that particular paragraph in mind. The court went on to remind itself, and thus me, of Lord Donaldson's warning in R v ex parte Guinness

[1991] QB 146

at 159D to the effect that care must be taken in any proposition that there has been failure to take account of relevant factors, or that account has been taken of irrelevant factors in a case where the decision-maker is himself enabled by the statute to decide what is relevant and what is not. In the Lewisham case the court went on to say this:

"Thus, even though the length of delay and reasons for it are often balanced against the prospect of success, it is possible to envisage circumstances in which an authority can rationally and properly conclude that even short delay for which there is a good explanation is not good enough to justify an extension of time for review. The authority might, for example, conclude that the case is so hopeless that a review would serve no useful purpose. Conversely, the authority could rationally and properly decide to grant an extension of time where there has been a long delay for which no explanation has been provided. Thus, the authority might take the view that the applicant has a powerful case on the merits and that it is able to take a relatively relaxed view when dealing with applications for an extension of time."

The court then said this:

"Delay and prospects of success do not always have to be balanced against each other. An authority is entitled to reach a decision without forming a provisional view of the underlying merits of the case if, in all the circumstances, it thinks it reasonable for it to do so."

That paragraph, and those last two sentences in particular, were part of a reserved judgment in a case in which the court had to deal with the submission that a housing authority was always under a duty to consider the merits when making a section 202(3) decision. The court's plain ruling is that the housing authority is not so bound.

[24]In the present case Mr Hutchings accepted that there might arise a case in which a failure to consider the merits of a review reached the stage of obvious perversity if such review was, on its face, clearly bound to succeed. I do not dissent from that proposition; but I am quite clear that, subject to that, the authority is entitled to say:

"We are not going to go to the merits at all. We are addressing the question of whether an extension of time should be granted."

[25]Was this, then, a review on which the claimant was bound to succeed? And was that, or must that have been, obvious to the decision-maker at the time of the refusal of extension? I address first the question of whether this was, in shorthand form, a Sadiq case or a Porteous case. There is, as it seems to me, a clear distinction between on the one hand fresh evidence which goes to the existence or non-existence of original circumstances (Porteous); and on the other hand a change of circumstances after the original decision (Sadiq). There is of course frequently an overlap in real life. In the present case the information that the claimant had shared a bed with her husband for a fortnight could be either a fresh circumstance - a new event - or fresh evidence which demonstrated that she had never been in priority need as fleeing domestic violence at all.

[26]I am quite satisfied that the fresh information which the housing officer had as at 5 August, and certainly subsequently, would have permitted a Porteous approach to the case and would have permitted the authority to address the question of whether its original acceptance of a section 193 duty had or had not been based on a fundamental error of fact. I reject the submission that all that there ever was in this case was an alleged subsequent change of circumstance.

[27]Next, I accept the claimant's submission that the letter of 5 August is couched in terms of discharge of existing duty rather than rescission of an original decision on the grounds that it had been wrong. However, although those are the terms in which the letter is couched, it is perfectly plain from its terms that what was troubling the housing officer was that there never had been a priority need, or at least the possibility that there had not. In other words what was troubling the housing officer was not a change of circumstance - it was fresh evidence.

[28]I am next satisfied that upon review the correct approach is that the original decision is visited afresh. On the facts of this case that means that on review it would have been open to the authority to find, if the evidence justified it and subject to Wednesbury reasonableness, that this was a Porteous type case and the claimant had never been in priority need.

[29]The question upon review is not whether the reasons given in the letter of 5 August were correct; the question would have been: was the duty under section 193 present or not? If there never had been a priority need, then it would not have been. That, it seems to me, follows from the House of Lords' decision in Mohamed; it is supported by decision of the Court of Appeal in Crawley Borough Council v "B" 32 HLR 636, where the court accepted that on review a local authority may address a qualification for accommodation which had not previously been addressed before.

[30]Finally, in principle it seems to me that the scheme of the statute is that a review should be in the broadest possible terms. The object of the provision for review is to give a disappointed applicant the opportunity of someone else taking a second look at the case as a whole and to arrive at a correct decision. It is in no one's interest that the decision-making process upon review should be hedged around with fetters or qualification.

[31]It follows from that that I conclude that this is not a case in which it could be said that the review, had it been granted, would have been bound to succeed. It follows from that that it is impossible to support Mr Shepherd's submission that this was one of those cases in which, before deciding whether to extend time for review or not, the authority was bound to consider the merits. Even if that last approach is wrong and the local authority was under an obligation to look at the merits and would have been perverse not to do so, it still remains the case that on the facts of this case the authority was entitled to say the merits are open. There may or may not be a priority need. Accordingly, there is no compelling reason in the merits to grant an extension which otherwise we should not. Of course it may well be that others would take a different view - a more merciful view - of the case of a lady in her 60s with little or no English. Housing authorities on the other hand have no doubt a very large number of very hard cases to deal with. I confine myself to saying that the decision in this case cannot be criticised as perverse, or, in the language of the law, Wednesbury unreasonable.

[32]That leaves the question of deprivation of an opportunity to deal with a fresh case. There is for applicants under Part 7 of the 1996 Housing Act no general right to be heard. That was decided quite recently by the Court of Appeal in R(Khatun) v Newham London Borough Council

[2005] 1QB 37

. It does not of course follow that if there is a concern that a claimant has not been heard that ought not to inform a decision on the question of extension of time for a review. Thus Khatun does not conclude the present case against the claimant. But in this case the claimant had been heard in a longish interview. The suggestion that there had been no fear of domestic violence had squarely been put to her and she had answered and indeed maintained her position. The question is whether no reasonable housing officer could reach the decision that she did. To that question there can, I am afraid, be only one answer. She was entitled to reach the conclusion that she did.

[33]For all those reasons this is an application for judicial review which cannot succeed.

[34]MR JUSTICE HUGHES: Mr Shepherd, I am afraid you clearly do not get home. There is listed both the application for permission and the substantive hearing. Does it make any difference to you at which point you fall?

[35]MR SHEPHERD: Certainly in terms of appeal, my understanding is that the period of time is longer if it falls after permission is given. Presumably, my Lord, you have heard fairly lengthy submissions on either side...

[36]MR JUSTICE HUGHES: I have the point. You say there is scope for some difference between refusal of permission and judgment against you, permission having been given?

[37]MR SHEPHERD: Yes.

MR JUSTICE HUGHES: Mr Hutchings?

[39]MR HUTCHINGS: My Lord, just taking very substantial...

MR JUSTICE HUGHES: Permission or substantive?

[41]MR HUTCHINGS: I am just taking very brief instructions. (After a pause) My Lord, in view of the detailed consideration which your Lordship has given the issue the defendant accepts it is appropriate to grant permission then refuse the claim.

[42]MR JUSTICE HUGHES: I agree. I grant permission but I refuse the application.

[43]MR HUTCHINGS: My Lord, I have an application for costs, subject to the usual legal aid proviso.

MR JUSTICE HUGHES: Mr Shepherd?

[45]MR SHEPHERD: I cannot oppose that application, but I...

MR JUSTICE HUGHES: You need detailed assessment.

[47]MR SHEPHERD: Yes, I do ask for a detailed assessment. I think it is appropriate for me to seek permission to appeal from you, in addition. I would do it on the basis that this question of the scope of review in a case such as this where the original decision was plainly unlawful -- and I do not think you addressed the point in relation to the natural justice point on Regulation 8(2) which plainly introduces a statutory requirement if the authority is seeking to rely on different reasons for upholding on original decision. That was quite squarely put in all of my arguments and the point in this case was that the claimant was denied that right.

[48]MR JUSTICE HUGHES: Let me deal with the two questions separately. First, the defendant must have its costs not to be enforced without further application. Second, the claimant must have an order for detailed assessment of her legal aid costs. Third, I refuse permission to appeal. You must seek leave elsewhere if on due consideration you wish to do so. I make it clear that the reason why Regulation 8 argument does not succeed is in very short terms this. What has been lost has been lost through the omission to seek review in time.

[49]MR SHEPHERD: I hesitate to come back, but the other point that I wanted to raise was the question of the scope in terms of the case of Mohamed, and one of the points ---

MR JUSTICE HUGHES: I understand all of that, but you must ask elsewhere.

[51]MR SHEPHERD: I am grateful.