This case concerned the legality or otherwise of a contracted-out review decision for a district council’s housing authority, made under section 202 of the HA 1996.
Of more general applicability however, was the wider question of the scope of the jurisdiction of the county court whenever hearing homelessness appeals.
The facts of the case
In November 2017, the appellant, a Mr. James, applied to Hertsmere BC for accommodation on the basis that he was homeless. The authority made its inquiries under section 184 of the Housing Act and on the 29th January 2018 notified Mr. James that he was not regarded as being in priority need and was intentionally homeless.
This being a pre-Homelessness Reduction Act case, the council only had a duty to provide advice and assistance. Prior to the passing of the Homelessness Reduction Act on 5th April 2018, anyone who was found to be homeless, but not in priority need, was only owed the limited advice and assistance duty. This was a duty to provide advice and assistance for someone to find their own accommodation, and in reality, this often amounted to no more than giving applicants a list of private landlords.
Since the passing of the HRA, an applicant is owed the prevention duty (threatened with homelessness within 56 days) or the prevention duty (homeless) which in turn, both require an a housing assessment and personalised housing plan to be completed, regardless of priority need.
On the 6th February 2018, Mr. James applied for a review of the decision that he was not in priority need pursuant to section 202 of the 1996 Act.
Where an authority carries out a statutory review it must be must be carried out within 56 days unless a longer period is agreed between the applicant and the reviewer: regulation 9 of the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999, which was applicable in this case, and regulation 9 of its successor, the Homelessness (Review Procedure etc.) Regulations 2018.
The review took some 28 weeks to complete, and on the 24th August 2018 Mr. James received the outcome of the review which confirmed the original decision that he was not in priority need. On the 15th September 2018, Mr. James appealed that decision to the county court under section 204.
The authority in this case had contracted out its homelessness review functions to a private sector property management organisation. At the time of Mr James’s review 2 of the senior roles were vacant, which meant that responsibility for entering into a new contract travelled up the chain to the chief executive. A much more junior official reached an agreement with the company to extend the contract to cover the period during which Mr James’ review decision was reached.
The appellant argued that the reviewer had acted outside the framework of the Housing Act because its contract with the council had only been authorised for a period of 12 months, and this decision had actually been completed outside of this period.
The court gave this argument short shrift, stating that as long as the decision had been started within the contractual period it still had the legal authority to make the decision. The review decision was lawfully made because it was commissioned during the review period.
The jurisdiction of the county court in homelessness appeals
It is the wider issue in this case however, which is of interest to local authorities and advisers alike, that of the jurisdiction of the County Court when considering a point of law in a homelessness appeal.
The central issue was whether the jurisdiction of the county court was limited to considering a point of law arising from the review decision, or whether it had wider powers similar to those of the High Court on judicial review.
Lord Justice Peter Jackson, giving the leading judgement, reviewed the conflicting authorities on this issue.
In Nipa Begum v Tower Hamlets LBC Auld LJ took the clear view that
“a point of law” includes not only matters of legal interpretation but also the full range of issues which would otherwise be the subject of an application to the High Court for judicial review, such as procedural error and questions of vires, also of irrationality and inadequacy of reasons”.
However, in Panayiotou v Waltham Forest LBC, another case which involved a challenge to the authority’s contracting-out policy, Lewison LJ commented:
“The original right to apply to the Administrative Court for judicial review was transferred to the county court (under s204) because county courts were thought to have expertise in housing not administrative law generally. The right of appeal against a decision on a review is a right limited to a point of law arising from the review decision, whereas (in this case) the points raised are challenges to Haringey’s antecedent decision to contract out its functions.”
Jackson LJ concluded that normal statutory construction and the majority of the authorities pointed to the county court having jurisdiction not merely over points of law which could be described as “points of housing law” but also the full range of issues which would otherwise be the subject of an application to the High Court for judicial review. He also noted the practical advantages of this interpretation, such as the time and expense involved in applying for judicial review, and the splitting of grounds of appeal leading to duplication of court time and costs.
“In my view, the correct interpretation of s. 204 Housing Act 1996 is that a point of law arises from a decision if it concerns or relates to the lawfulness of the decision. Both normal statutory construction and the preponderance of authority point to the county court having jurisdiction to hear appeals from s. 202 review decisions that is not limited to points of law that might broadly but imprecisely be described as “points of housing law” but extends to the full range of issues that would otherwise be the subject of an application to the High Court for judicial review. These include challenges on grounds of procedural error, the extent of legal powers (vires), irrationality, and inadequacy of reasons.”
Relevance for advisers
Many practitioners will be well aware of the practical difficulties, in terms of time and expense, of applying for judicial review. Specialist housing advice and often the services of a barrister will be required, and it can be difficult to match up these services with individuals who often have multiple and complex needs, who may not have the necessary documentation for a legal aid claim necessary to fund this costly endeavour.
Writers have commented that local authorities are increasingly running arguments based on the third and fourth limbs of Bean LJ’s decision in the Adesotu case by:
- Asserting that the ground of appeal does not ‘arise from the decision’ and
- Relying on the ‘respondent’s notice point’ in Adesotu (questioning whether the issue had been raised at any stage before the review decision).
So, according to Nick Bano of Garden Court Chambers’ housing team, “applying James an appellant could challenge something that took place before the review process, whereas applying Adesotu s/he could not; applying James an appellant could challenge something that merely ‘concerns or relates to’ the review decision, whereas applying Adesotu s/he could only challenge the lawfulness of something in the decision itself.
On the second Adesotu point (the ‘respondent’s notice point’ – whether an appellant may rely on something that had not been raised before the review decision), the contrast between the two cases is even stronger.
In Adesotu Bean LJ upheld HHJ Luba QC’s decision that there is no jurisdiction to consider a point that had not been raised before the review decision was made. In James, on the other hand, Peter Jackson LJ reminded us of what Sedley LJ had said in Nipa Begum: “The jurisdiction of the county court is at least as wide as that of a court of judicial review” (affirmed in Runa Begum).”
This decision is therefore welcome authority for the proposition that, relatively straightforward appeals in the county court are not limited to considering mistakes of legal interpretation in the review decision itself, but can also now be challenged on traditional public law grounds such as procedural error, irrationality, inadequacy of decisions and, as in this case, that the authority was acting outside its legal powers.
https://www.bailii.org/ew/cases/EWCA/Civ/2020/489.html is the link to the full judgment of the court