- This
is an appeal by the London Borough of Hackney ("the Council") against
the order of His Hon. Judge Cotran on 21st June 2002 allowing the appeal
of Papinder Sareen against two decisions of the Council. The first was its initial
refusal to review under section 202 of the Housing Act 1996 its decision not to
refer his application for housing under Part VII of the Act to another authority,
the London Borough of Ealing. The second was its decision, following a non-statutory
reconsideration, not to refer the application.
- There
are three issues in the appeal, of which the first is the most important:
(1)
whether an applicant for housing assistance under sections 183 and 184 of the
1996 Act has a right to require a local housing authority under section 202 of
the Act to review its decision not to refer his application to another authority
under section 198 of the Act and, in consequence, a right of appeal on a point
of law to the County Court under section 204 of the Act;
(2)
assuming that there are such rights - whether the Council in the conduct of its
inquiries into Mr. Sareen’s application had a duty to investigate the issue of
local connection with the other authority under consideration; and
(3)
whether the Judge had jurisdiction on an appeal under section 204 to consider
the Council’s second decision that the conditions for referral were not met and/or
erred in law in quashing that decision.
- For
the avoidance of doubt, I should note that the amendments to the 1996 Act made
by the Homelessness Act 2002, the majority of which came into force on 31st
July 2002, shortly after the orders appealed against, do not materially affect
the provisions of the 1996 Act considered in this judgment.
The
facts
- On
13th July 2000 Mr. Sareen applied to the Council as a homeless person
for housing for his wife and himself and their children under part VII of the
Act. In the application, his caseworker noted that he would like to be housed
in Southall "near his family friends"; Southall is situated within the
London Borough of Ealing. The Council placed the applicant and his family in temporary
accommodation in Enfield while they inquired into his eligibility for assistance
and the duty, if any, owed to him under Part VII. Because of the caseworker’s
note about his wish to live in Southall, it also gave him a form in which to provide
details of the suggested family connections there. However, as he did not return
the form or provide any more information about those connections, the Council
made no inquiries about them at that stage. In the result, towards the end of
August 2000, the Council concluded that he was unintentionally homeless, eligible
for assistance, had a priority need and that it would not refer his application
to any other housing authority. It, therefore, accepted an obligation under section
193(2) of the Act to secure the provision of housing for him and his family. By
a pro forma letter of 31st August 2000, it informed him of those decisions,
concluding with a statement, the correctness of which in relation to the non-referral
is the first issue for decision in this appeal, namely that he had a right for
the decision to be reviewed.
- By
letter of 11th September 2000 Mr. Sareen’s solicitors sought a review
of the decision, but only as to the Council’s decision not to refer his application
to any other authority. In the letter the solicitors stated that he had no connection
with Hackney but that he did have connections with the London Borough of Ealing.
And they gave details of relatives of Mr. and Mrs. Sareen in or in the area of
that authority and, also urged as special reasons their need to be near or part
of a Sikh community The letter thus provided the Council for the first time with
information particularising the cryptic indication given in Mr. Sareen’s original
application that he would like to be housed in Southall near his family friends.
- By
letter of 27th November 2000 the Council informed the solicitors that
there was no right of review of a decision not to refer under section 202, but,
in the light of the new information, it was prepared to reconsider on a non-statutory
basis whether Mr. Sareen and his family had a local connection with the London
Borough of Ealing, and proposed a meeting to discuss it. As it happened, on the
very same day, Mr. Sareen’s solicitors had lodged an appeal, purportedly under
section 204 of the Act against the Council’s earlier refusal to review its decision
not to refer the application to the London Borough of Ealing.
- The
Council then inquired into the claimed local connection with the London Borough
of Ealing. Its officers interviewed Mrs. Sareen and she apparently persuaded them
that she and Mr. Sareen had relatives in the Ealing area who had lived there for
some years. However, the Council, on completion of those inquiries and reconsideration
of the matter, concluded that the Sareen family had no local connection with Ealing
through family association. In a long and detailed letter to Mr. Sareen of 4th
September 2001 it informed him that it had so concluded because: the relatives
had not lived there for a sufficient period of time as indicated by way of guidance
in an agreement between the associations of housing authorities ("the Local
Authority Agreement"); because of insufficiency of closeness in the relationships
with the Sareens; and because their wish to be near or part of a Sikh community
did not in the circumstances amount to special reasons for departing from the
normal approach indicated by that guidance.
The
appeal to the County Court
- By
the time of the hearing of Mr. Sareen’s appeal in the County Court in June 2002
there were, as I have indicated, three issues for the Judge’s determination.
- As
to the first, the applicant’s rights to a review of the Council’s decision not
to refer his case to the London Borough of Ealing and consequentially to appeal
to the County Court, the Judge held that there was a right to a review and hence
that he had jurisdiction to consider its lawfulness on appeal. In so holding,
he dealt with the matter in general terms and without indicating the provision
in the Act that he considered conferred the right of review. He said, at page
11 of his judgment:
"This
appeal was initially for the non-review of the matter. I have examined the sections
that [Miss Roberts] refers to and it seems to me that it is clear that there is
a right to review certainly the statement in the original letter which states
that: ‘It is not proposed to refer the matter to another local authority.’"
He added
that the issue was, in any event, academic, since, although the appeal was against
non-review, the Council had gone on to conduct a review and hence he was entitled
to consider the lawfulness of it by way of appeal under section 204, applying
judicial review principles.
- As
to the second issue - assuming that there were such rights of review and of appeal
to the County Court - namely whether the Council had had a duty from the outset
to investigate the issue of other local connection, he held that the Council had
had such a duty. He said that the early indication in the application of Mr. and
Mrs. Sareen’s wish to live in Southall near their family friends imposed a duty
on it to investigate that connection and that, because it did not do so in making
its first decision not to refer, he was obliged to quash that decision.
- On
the third issue, the lawfulness of the Council’s second decision on reconsideration
of the matter not to refer, he held that the Council had erred in law by not investigating
the matter properly and/or in sufficient detail and that the decision was, therefore,
flawed and should be quashed.
The
scheme of provision for homelessness in Part VII of the 1996 Act
- In
outline, the scheme of Part VII of the 1996 Act is to impose the primary responsibility
for discharge of the duties to the homeless under its provisions on the authority
to which an applicant first applies for housing assistance. Although the authority
to which an applicant applies is usually one for the area in which he happens
to be or with which he has some connection, he can apply to any authority irrespective
of local connection. In so applying, he triggers an obligation under Part VII
on that authority to inquire into and determine his eligibility for housing assistance
and, if it determines that he is so eligible, to impose on it the primary statutory
duty to house him. The authority can only shed that primary duty to the applicant
if it is entitled to pass it to another authority in accordance with the referral
provisions in Part VII, which turn on considerations of local connection. The
statutory scheme is such that it contemplates - not unreasonably – that applicants
for housing under the Act will apply to the authority in which they wish to be
housed. It is not a scheme in which applications may be made to one authority
with a view to it acting as a search agent for the applicant to find or secure
housing for him in another authority area in which he wants or might like to live.
The draftsman clearly contemplated that if an applicant wished to live in a particular
local housing authority area he would apply to that authority.
- The
power of an authority to refer the statutory duty to secure housing assistance
to an applicant arises only after it has concluded that there is such a duty.
It then has a discretion, subject to the provisions of the Act, to pass that duty
to another authority, but it has no duty to do so. In ordinary circumstances,
for which the parliamentary draftsman was clearly providing, the exercise of discretion
to refer is not what the applicant wants, otherwise he would or should have applied
to that other authority in the first place. On the other hand, the exercise of
discretion not to refer is exactly what he wants, the shouldering by the authority
to which he has applied of the statutory duty to house him in the area in which
he wants to live. Given such considerations, it is not surprising that there is
apparently no reported authority of an applicant’s challenge, successful or otherwise,
of an authority’s decision not to refer.
- I
should now look at the material provisions in Part VII in a little more detail
in order to make good that general outline of its scheme where referral is or
might fall for consideration. The starting point is section 183(1) which enables
an applicant to apply to any local housing authority in order to establish his
entitlement to housing assistance under Part VII. It provides that the scheme
set out in the remainder of that Part applies:
"where
a person applies to a local housing authority for accommodation, or for assistance
in obtaining accommodation, and the authority have reason to believe that he is
or may be homeless or threatened with homelessness."
Thereafter,
as Miss Clare Roberts, counsel for the Council, has helpfully identified for the
Court, there are five possible stages in the progress of an application for housing
assistance where an authority gives consideration to its power to refer:
(1)
inquiries into eligibility for housing assistance and existence of duty to provide
it – section 184(1)
- The
authority, if it has reason to believe that an applicant may be homeless or threatened
with it, must make inquires to satisfy itself whether he is eligible for assistance,
and, if so, whether "any duty, and if so what duty, is owed to him"
under the Act. It should be noted from that passive formulation of the test in
section 184(1) that the authority does not have to decide at this stage whether
it owes any duty to the applicant, only that the applicant is owed such
a duty.
(2)
authority’s determination of duty to provide housing assistance subject to its
discretion to refer duty to another authority – sections 184(3) and 193(1) and
(2)
- If,
as a result of its inquiries, the authority determines that an applicant is unintentionally
homeless, eligible for assistance and has a priority need, it is obliged by section
193(2) to secure accommodation for the applicant ("the main housing duty")
unless it refers the application to another local housing authority under section
198. The Act does not impose a duty on the authority at that stage to make inquiries
about any possible local connection with the district of another authority since
that would not be relevant to its decision as to the duty, if any, owed to the
applicant. However, where there is a suggestion of such local connection in the
information before it, it would make sense for it to inquire into it so as to
be ready, in the event of it determining that there is a duty, to make a referral
if it wishes. Hence the provision in section 184(2) that it "may also make
inquiries whether" the applicant has such a local connection elsewhere.
(3)
decision to refer case to another local housing authority – section 198(1)
- If
the authority, as a result of any inquiries it has made into local connection
elsewhere, considers that there is a main housing duty to the applicant under
section 193, but considers that the conditions are met for referral of the case
to another authority, it "may notify that other authority of [that] opinion"
(section 198(1)). The relevant conditions here are: (1) that neither the applicant
nor any person who might reasonably be expected to reside with him has a local
connection with the district of the authority to which the application is made;
and (2), that the applicant or a person who might reasonably be expected to reside
with him has a local connection with the district of that other authority (section
198(2)). The Act provides in section 199(1) that a person has a local connection
with a district of an authority if he has a connection with it because:
"(a)
… he is, or in the past was, normally resident there, and that
residence
is or was of his own choice,
(b)
… he is employed there,
(c)
… of family associations, or
(d)
… of special circumstances."
- Further
guidance as to the factors to be taken into account by notifying and notified
authorities on the issue of local connection is, as I have said, given in the
Local Authority Agreement. I emphasise that this stage as a whole is discretionary,
but that, if undertaken, it has two sub-stages, the first, one of consideration
after proper inquiries whether the referral conditions as to local connection
elsewhere are met, and the second, a discretionary decision whether to seek a
referral by notification to the other authority.
(4)
notification to the applicant of the decision to refer – sections 198(1) and 184(4)
- Where
an authority, as a result of its inquiries, makes a decision under section 184(1)
into the application as to eligibility of the applicant for assistance and as
to the duty owed to him, it is required by section 184(3) to notify the applicant
of that decision "and, so far as any issue is decided against his interests,"
inform him of the reason for it. That obligation is directed at decisions adverse
to what he has asked for in his application. The most common would be a decision
adverse to his entitlement to housing assistance for one reason or another or
as to the nature of the accommodation offered. It could also be a decision to
refer the application to another authority. The draftsman could not have contemplated
that an applicant would in normal circumstances regard it as adverse to his interests
if the authority to which he had applied for housing support decided to offer
it to him and not to refer his application elsewhere.
- If,
however, the authority’s decision is that, though an applicant is eligible for
assistance and is owed the main housing duty it intends to notify another authority
of its opinion that conditions are met for referral of the case to it, the first
authority is required by section 184(4) to notify the applicant of that decision
and the reason for it. Separate provision is thus made for notification to an
applicant of a decision "against his interests" under section 184(3)
from that for a decision to refer under section 184(4) because the latter, though
it would normally be contrary to an applicant’s wishes, should not, if
the authority has exercised its discretionary power properly, be "against
his interests". For the avoidance of doubt, I should make plain that section
184(4) does not oblige an authority to notify an applicant of a decision not
to refer. This is how it is drawn:
"If
the authority have notified or intend to notify another local housing authority
under section 198 (referral of cases), they shall at the same time notify the
applicant of that decision and inform him of the reasons for it."
- Consistently
with that scheme as to notice and flowing from it, section 184(5) also requires
an authority to inform an applicant to whom it issues a notice under section 184(3)
or (4) of his right to request a review of the decision. Again, there is no corresponding
statutory duty to inform him that he has a right to request a review of a decision
not to refer under section 198.
(5)
a decision that the conditions for referral are met – section 198(5)
- The
mere notification by an authority to another authority under section 198(1) of
its opinion that the conditions for referral are met is not enough to transfer
its main housing duty to that other authority. It is only if the two authorities
are agreed about that or, failing agreement, an arbitrator appointed under arrangements
directed by the Secretary of State so decides, that the transfer can take effect
(section 198(5) and (6) and the Homelessness (Decisions on Referrals) Order 1998,
SI No. 1578). But before it can do so, the notifying authority must notify the
applicant of the decision and the reasons for it, and inform him of his right
to request a review of the decision (section 200(2)). Again, the Act does not
in terms oblige the notifying authority to notify the applicant of a decision
not to refer, though, as it then must accede to the applicant’s request
for housing assistance and shoulder the main housing duty towards him under section
193 (section 200(3)), there is clearly no need for such a provision.
- The
importance of the statutory obligations in sections 184(4) and 200(2) respectively
to notify an applicant of a referral or intention of referral to another authority
and of a decision that the conditions for referral are met is that they are a
means of notifying the applicant of his right to a review under section 202(1)
and (4). There are also other decisions for which that section provides such a
right, all of them - common sense dictates - decisions that amount to a refusal
of his application for housing assistance or which fall short of what he has asked
for in his application. Section 202(1) provides:
"(a)
any decision of a local housing authority as to his eligibility for assistance,
(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 (duties to persons found to be homeless
or threatened with homelessness),
(c)
any decision of a local housing authority to notify another authority under section
198(1) (referral of cases),
(d)
any decision under section 198(5) whether the conditions are met for the referral
of his case,
(e)
any decision under section 200(3) or (4) (decision as to duty owed applicant whose
case is considered for referral or referred), or
(f)
any decision of a local housing authority as to the suitability of accommodation
offered to him in discharge of their duty under any of the provisions mentioned
in paragraph (b) or (e).
The
first issue – the rights to a statutory review under section 202 and to an appeal
to the County Court therefrom under section 204
- By
section 204 of the Act, a review of any decision within section 202(1) carries
with it in turn a right in the applicant to appeal to the County Court on a point
of law. Such an appeal is not limited to matters of legal interpretation, but
also includes issues akin to those that give rise to judicial review, such as
challenges to an authority’s decision on the ground of procedural error, vires,
irrationality or inadequacy of reasons; see Nipa Begum v. Tower Hamlets London
Borough Council [2000] 1 WLR 306, CA. But any purported review of a decision
not coming within any of the section 202(1) categories is not appealable to the
County Court under section 204, and would only be challengeable, if at all, by
way of judicial review in the High Court. The first question raised in this appeal
is, therefore, whether the Council’s decision not to refer Mr. Sareen’s
case to the London Borough of Ealing was reviewable within the statutory procedure
provided by the Act and, if so, whether it was a decision challengeable by appeal
to the County Court.
- Miss
Clare Roberts has submitted that the only section 202(1) categories of decision
of possible relevance to this appeal are those in paragraphs (c), (d) and (e).
Mr. Sylvester Carrott, counsel for Mr. Sareen also sought to rely on paragraph
(b). Miss Roberts pointed out that none of them expressly gives an applicant a
right to request a review of a decision not to refer a case. She submitted
that the nearest the draftsman got to it is in (d) – a decision under section
198(5) "whether the conditions are met for referral of his case", which
was the category of decision upon which Mr. Sareen particularly relied upon before
Judge Cotran. She submitted that, if the draftsman had intended to provide a right
of review of a non-referral, he would have done so by expressly requiring notice
of and reasons for it in section 184(4) and 200(2) and by express reference to
it in section 202(1)(d).
- Mr
Carrott framed his submissions on the individual categories of decision in section
202(1) with three broad propositions. The first, in reliance on this Court’s reasoning
in Nipa Begum v. London Borough of Tower Hamlets [2000] 1 WLR 2000,
at 314A-B, was that the policy of the introduction by section 204 of a right of
appeal on a point of law to the County Court in homelessness cases was:
"to
transfer from the High Court to the county court the main strain of the High Court’s
otherwise onerous task of judicial review of those decisions for which section
202 provides". [my emphasis]
He
emphasised, as the Court did in that case, the undesirability of two concurrent,
either separate or overlapping, forms of challenge to a local housing authority’s
decision on homelessness. To avoid such a result, he submitted that the courts
should, wherever possible, give a wide interpretation of section 202. However,
as the Court plainly indicated in the above passage, the extent to which the new
provision directs such work to the County Court depends on whether the decision
in question is one for which section 202 provides. And, the draftsman, by his
specific identification of a number of categories, clearly did not intend there
to be an omnibus provision of a right of review of all local housing authority
decisions bearing on the issue of homelessness. First, he has limited it to decisions
in respect of which the authority has a duty to, and does, review. Second, he
has specifically picked out and differentiated between categories of reviewable
decisions according to their subject matter. Third, he has singled out positive
decisions for referral in paragraphs (c) and (d) from those in the other paragraphs
where the formula employed is "any decision … as to" whatever the subject
matter of the decision is.
- Mr.
Carrott’s second broad proposition to overcome the limiting effect of the categorisation
in section 202(1) of reviewable decisions was to urge a wide interpretation of
each of the categories in reliance on the decision of this Court in Warsame
v London Borough of Hounslow [1999] 32 HLR 335. In that case the question
was whether the words in paragraph (b), "any decisions …. as to what duty,
(if any) is owed", were wide enough to include a decision that a duty, once
owed, is no longer owed. The Court held that the words "any decision"
in that paragraph included one as to factual situations, which, if they occurred,
or do exist, would have the effect of causing the duty to cease to exist. In so
holding, Chadwick LJ, with whom Rattee J agreed, focused on the width of the words
in paragraph (b) which, as I have indicated are of considerable generality, encompassing
decisions either way over a whole range of duties in Part VII to persons found
to be homeless or threatened with homelessness. However - and relevantly to this
appeal – paragraph (b) is expressly limited to an authority’s decisions as to
duties owed under sections 190 to 193 and 195 to 197, and does not extend
to its decisions in the exercise of it power of referral under section
198. The answer for the Court, as Chadwick LJ said, at 344, was plain enough on
the language of the paragraph. The Court did not need to have recourse to a generous
interpretation of it to reach the decision that it did. But, in any event, any
permissibly wide interpretation could not have enabled the Court to overcome the
plain limitations of meaning as between the different paragraphs in section 202(1),
limitations that the draftsman in adopting the categorising technique must clearly
have intended.
- Mr.
Carrott’s third broad proposition was that the general effect of section 202 is
to confer on an applicant the right to request a review where an authority makes
a decision adverse to him affecting the exercise of a substantive duty to him
under Part VII. He drew attention in this connection to the duty imposed on an
authority under section 184(3) to inform an applicant of the reasons for any decision
adverse to his interests. However, as I have said, the draftsman of the Act must
have contemplated – and both the general scheme and particular wording of sections
184(2) and (4), 200(2) and 202(1) confirm – that an applicant will apply to the
authority in whose area he wishes to be housed. If that were not so, the discretionary
provision in section 184(2) that an authority "may also make inquiries whether
he has a local connection with the district" of another authority would be
mandatory, not discretionary. Equally, as I have also said, the draftsman must
have contemplated - and the scheme and particular wording of sections 184(4),
200(2), 202(1) and 204 to which it is tied again confirm – that it was not intended
to give an applicant a right of review or of an appeal against a decision on that
review if it gives him what he asked for, namely housing by the authority to which
he applied for it. If an applicant wants to be housed in another local authority
housing area, he should apply there.
- With
those considerations on the first issue in mind, I turn briefly to each of the
four categories of decision in section 202(1) to which Miss Roberts and Mr. Carrott
particularly referred the Court.
(b)
a decision as to what, if any, duty is owed under sections 190 to 193 and 195
to 197 to homeless persons or those threatened with homelessness
- Mr.
Carrott submitted, in reliance on Warsame, that the words of section 202(1)(b)
are sufficiently wide to include the right to request a review in the circumstance
of this case. He argued that the issue whether an authority may be exempted from
a duty to secure accommodation under section 193(2) by a referral to another authority
under the local connection provisions is a question of "what duty is owed".
There are two fallacies in that argument. The first is that the decision is as
to "what duty is owed" under section 193(1), the issue in Warsame,
not as to who owes it as between a notifying or notified authority under sections
198 and section 202(1)(d). The second fallacy is that, if the draftsman had intended
the paragraph (b) to have the wide effect for which Mr. Carrott contended, he
would not have found it necessary to provide in paragraphs (c) and (d) respectively
for decisions to refer and for decisions whether the conditions were met for referral;
such provisions would have been otiose. And, if he had intended to provide for
decisions not to refer, the obvious place for such provision would have
been in paragraphs (c) and (d).
(c)
A decision to notify another authority under section 198(1)
- Section
202(1)(c) gives an applicant the right to request a review of a decision to refer,
that is, of a decision to notify another authority of its view under section 198(1)
that the conditions for referral are met. It does not on its terms give such a
right where there is no decision to refer, no decision to so notify another authority.
In this respect, it is to be contrasted, for example, with the formulae in paragraphs
(a), (b), (e) and (f) in that it does not refer, for example, to any decision
"as to" notification, or, for example, any decision "whether"
to notify. In providing only for a decision "to notify another authority",
paragraph (c) corresponds with the duty under section 184(4) to notify an applicant
of such notification or intended notification and that under section 185 (5) to
inform an applicant of his right to request a review of the decision. As I have
said, the Act does not provide for any of those duties where there is no
decision to refer.
- As
is plain from the short summary that I have given of the facts, the Council never
considered that the conditions for referral were met in Mr and Mrs Sareen’s case
and, therefore, did not notify or intend to notify another authority under section
198(1) and so did not engage section 202(1)(c) . I agree with Miss Roberts that
subsections 184(3) and (4) read on their own and in the context of the overall
scheme for referral in Part VII plainly indicate that the Act does not treat a
decision not to refer as one adverse to the interests of the applicant so as,
in itself to require a notice.
(d) any decision under section 198(5) whether the conditions are met for referral
- Section
202(1)(d) gives an applicant a right to request a review of any decision by way
of agreement between the notifying and notified authorities under section 198(5),
an agreement that can only follow from a notification under section 198(1) to
refer. Here, in the absence of such a notification, there was no factual basis
for decision by agreement to be reviewable under this paragraph.
(e)
any decision under section 200(3) or (4) as to duty owed to applicant whose case
is considered for referral or referred
- Section
202(1)(e) gives an applicant, after referral, a right to request a review of a
decision as to the housing provision made for him by a notifying or notified authority
under section 200(3) or (4), according to the decision reached under section 198(5)
as to whether the conditions for referral are met.
- Again,
there was no decision to refer under section 198(1), so there could be no basis
for, and there was no, decision under section 198(5) as to whether conditions
of referral were met. Accordingly, there was no reviewable decision under paragraph
(e).
- Accordingly,
I do not consider that Part VII of the Act in section 202 or otherwise has provided
a statutory right of review of an authority’s decision not to refer an
application under section 198. If I am right about that, it must follow that there
is no statutory right of appeal to the County Court under section 204 of the Act,
a right of appeal expressly predicated on an entitlement to a review under section
202. It reads, so far as material:
"(1)
If an applicant who has requested a review under section 202 –
(a)
is dissatisfied with the decision on the review, or
…
He
may appeal to the county court on any point of law arising from the decision or,
as the case may be, the original decision.
…
(3)
On appeal the court may make such order confirming, quashing or varying the decision
as it thinks fit."
.
….
- Accordingly,
I would allow the Council’s appeal on the first issue and quash the Judge’s holding
that Mr Sareen was entitled to a review under section 202 of the Council’s decision
not to refer his application to the London Borough of Ealing and, therefore, to
appeal to the County Court under section 204. The Judge had no jurisdiction in
the matter.
Second
issue - whether the Council had a duty to investigate the issue of the applicant’s
local connection failure to comply with which vitiated the Council’s first decision
not to refer
- It
follows, as Mr. Carrott has acknowledged, that if the Judge had no jurisdiction
with regard to the Council’s first decision not to refer Mr. and Mrs. Sareen’s
application to the London Borough of Ealing, he also had no jurisdiction to consider
by way of appeal under section 204 or otherwise whether the Council had a duty
to investigate the issue of local connection as part of its initial inquiries
leading to that decision. In any event, as Mr. Carrott also acknowledged, the
Council had no duty to investigate the issue of local connection, only a discretion
under section 184(2) whether to do so. Accordingly, the Judge was wrong to quash
the Council’s decision not to refer on that ground.
Third
issue – whether the Judge erred in law in quashing the Council’s second decision
not to refer for failure to conduct a proper investigation of Mr. and Mrs. Sareen’s
local connection
- Mr
Carrott’s main submission was that, in the particular circumstances of this case,
the early indication in Mr. and Mrs. Sareen’s application that they would like
to live in Southall imposed a duty on the Council properly to investigate that
possible local connection with a view, in its discretion, to referring their application
to the London Borough of Ealing. Given the discretionary nature of such an investigation
under section 184(2) as well as of a decision to refer under section 198(1), he
was compelled to widen his complaint to overcome what he described as a lacuna
in the Act. He said that it failed to provide for such a duty where applicants
have indicated at an early stage of their application to one authority that they
wish to live in the area of another authority. However, for the reasons I have
given, I do not regard that as a lacuna, but as a deliberate part of the draftsman’s
scheme that, although applicants under Part VII of the Act can apply to any authority
regardless of local connection, they would and should normally apply to an authority
in whose area they wish to be housed. And they should be housed there subject
only to that authority’s discretionary power to refer them elsewhere if the referral
conditions are met.
- However,
lacuna or no, Mr. Carrott’s widening of his complaint amounted to one that might
possibly be advanced in the High Court on an application for judicial review,
but not by way of appeal to the County Court under section 204. It was that the
Council, having undertaken a reconsideration of its initial decision, should have
made, but did not, proper or sufficient inquiries, and that such failure made
its second, if not its first decision procedurally unfair. The Judge, as I have
said, quashed the second decision on that basis. For the reasons I have given,
he had no jurisdiction to do that. And, in the light of the Council’s letter to
Mr. Sareen of 4th September 2001 detailing its inquiries and the reasons
for its second decision, I doubt whether the High Court, if it were to consider
the matter by way of judicial review, would consider that there had been any procedural
unfairness so as to justify any relief in the exercise of that jurisdiction.
- Accordingly,
I would allow the Council’s appeal on all three issues raised in the appeal and
would quash the orders made by the Judge.
Lord
Justice Chadwick :
- I
agree that this appeal should be allowed. I would think it unnecessary to add
any observations of my own to the reasons given by Lord Justice Auld (with which
I am in entire agreement) if it were not for the reliance which counsel for Mr
Sareen has sought to place on my judgment in this Court in Warsame v London
Borough of Hounslow (1999) 32 HLR 335.
- In
the Warsame case, the applicants had satisfied the local housing authority
that they were homeless, eligible for assistance and had a priority need. It was
not suggested that they had become homeless intentionally. Prima facie,
therefore, section 193 of the Housing Act 1996 was engaged; and the local housing
authority were required to secure that accommodation was available for their occupation
("the main housing duty") – section 193(2). But section 193(7) of the
Act provided that a local housing authority ceased to be subject to the main housing
duty if (a) an applicant, having been informed of the possible consequence of
refusal, refused an offer of accommodation under Part VI of the Act and (b) the
local housing authority were satisfied that the accommodation was suitable for
him and that it was reasonable for him to accept it. The local authority had made
an offer to the applicants of accommodation under Part VI of the Act 1996; which
the applicants had refused. The decision of which the applicants sought review
under section 202 of the Act was the authority’s decision that, by reason of the
provisions of section 193(7), it had ceased to be subject to the main housing
duty. That decision turned on the authority’s decision that it was reasonable
for the applicants to accept the accommodation which had been offered. The question
for this Court was whether the judge in the county court had been right to take
the view, on an appeal under section 204 of the Act, that that was not a decision
in respect of which there was a right to review under section 202(1).
- In
Warsame, this Court held that a decision under section 193(7) of the Act,
that the local authority had ceased to be subject to the main housing duty because
it was reasonable for the applicants to accept the accommodation which had been
offered under Part VI, fell within paragraph (b) of section 202(1). It held that
that decision was as to "what (if any) duty [was] owed" to the applicants
under section 193. But that is of no assistance to Mr Sareen in the present case.
The question in the present case is not "what duty (if any) is owed"
to Mr Sareen under section 193 – or under any of the other sections to which paragraph
(b) of section 202(1) refers. It is accepted by the appellant authority that he
is owed the main housing duty under section 193; and Mr Sareen has not sought
to contend he is not owed that duty. That he is owed the main housing duty follows
from the unchallenged facts that (i) the requirements of section 193(1) of the
Act were met, (ii) the authority had not referred the application to another local
housing authority under section 198 – see section 193(2) of the Act, and (iii)
the authority had not ceased to be under the main housing duty by reason of sub-sections
(5), (6) or (7) of section 193.
- The
underlying question in the present case is not "what duty is owed" to
Mr Sareen; the underlying question is whether the appellant authority ought to
have exercised the discretionary power, conferred by section 198(1) of the Act,
to notify another authority, the London Borough of Ealing, of their opinion that
the conditions for referral set out in section 198(2) were met. That, of course,
begs two related, but prior, questions; (i) whether the appellant authority ought
to have made inquiries to ascertain the facts upon which to make a determination
whether those conditions were met, under the power conferred by section 184(2),
and (ii) whether, in the light of those inquiries, they ought to have concluded
that the conditions for referral were, in fact, met. But, assuming (in favour
of the case advanced on behalf of Mr Sareen) that the appellant authority ought
to have reached the conclusion that, in their opinion, those conditions were met
– so that it fell to the authority to decide, under section 198(1) of the Act,
whether to notify or not to notify another authority of that opinion – a decision
not to notify cannot be said to be a decision "as to what duty (if any) is
owed to him" under any of the sections mentioned in paragraph (b) of section
202(1). It is a decision not to exercise a power; in circumstances in which the
non-exercise of the power leaves the duty owed to the applicant unaffected. It
is important to keep in mind that the referral process under section 200 of the
Act – which is initiated by a decision to exercise the power to notify conferred
by section 198(1) of the Act - can only be set in train by a local authority which
accepts that, but for referral, it would itself be subject to the main housing
duty.
- It
is also plain that the Act imposes no obligation on the authority to notify the
applicant of a decision not to exercise the power conferred by section 198(1).
Section 184(4) of the Act, in terms, requires the authority to notify the applicant
only if they "have notified or intend to notify another local authority under
section 198 (referral of cases)". And, for the reasons given by Lord Justice
Auld, it is impossible to read into section 184(3) of the Act an obligation to
notify the applicant of a decision that his case should not be referred to another
authority. When providing, under section 184(3), that an applicant be informed
of the reasons for a decision against his interests (so that he can decide whether
or not to invoke his right to request a review – see section 184(5) of the Act)
Parliament could not have had in mind that a decision to accede to the application
which the applicant had made fell within that provision. A decision to accede
to the application which the applicant has made cannot be said to be a decision
on "any issue . . . decided against his interest".
- That
is confirmed, as it seems to me, by the inter-relation between sub-sections (1),
(3) and (5) of section 184 and paragraphs (a) and (b) of section 202(1) of the
Act on the one hand; and between sub-sections (2), (4) and (5) of section 184
and paragraph (c) of section 202(1) on the other hand.
- Section
184(1) of the Act requires the authority to make such inquiries as are necessary
to satisfy themselves (a) whether the applicant is eligible for assistance under
Part VII of the Act and (b) if so whether any duty (and if so what duty) is owed
to him under the provisions of Part VII which follow. Section 184(3) requires
that, on completing their inquiries, the authority shall notify the applicant
of their decision, and (if adverse to his interests) of the reasons for that decision.
Section 184(5) requires that a notice under section 184(3) shall inform the applicant
of his right to request a review under section 202. Paragraph (a) of section 202(1)
confers a right to request a review of any decision as to his eligibility for
assistance; and paragraph (b) of that sub-section confers a right to request a
review of any decision as to what duty (if any) is owed to him under the sections
mentioned. Paragraphs (a) and (b) of section 202(1) correspond to paragraphs (a)
and (b) of section 184(1). The link from section 184(1) to section 202(1)(a) and
(b) is through section 184(3) and (5).
- Section
184(2) of the Act empowers the local housing authority to make inquiries as to
local connection with another authority; a matter relevant to a decision whether
the conditions for referral are met – see section 198(2)(b). Section 184(4) requires
that a decision to notify another authority under section 198 is notified to the
applicant, with the reasons for that decision. Section 184(5) requires that a
notice under section 184(4) shall inform the applicant of his right to request
a review under section 202. Paragraph (c) of section 202(1) confers a right to
request a review of any decision to notify another authority under section 198.
It does not confer a right to request a review of a decision of one authority
not to notify another authority under section 198(1). Paragraph (c) of section
202(1) corresponds to section 184(4), following inquiries under section 184(2);
and, again, the link from sections 184(2) and (4) to section 202(1)(c) is through
section 184(5).
- In
the light of the detailed provisions for notification to the applicant of decisions
in relation to which he was to have the right to request a review and the obvious
omission from those provisions of any reference (in terms) to a decision not to
exercise the power under section 198(1) - when it would have been so easy to make
it plain that such a decision was to be included within the scheme for notification
and review - I find it impossible to hold that Parliament intended there to be
an obligation to notify the applicant of a decision not exercise that power; or
that Parliament intended there to be a right to request a review of that decision.
In particular, I find it impossible to hold that Parliament intended that obligation
to arise under section 184(3); or that right to be conferred by section 202(1)(b)
of the Act.
- Absent
a right to request a review, under section 202 of the Act, of the appellant authority’s
decision not to exercise the power under section 198(1), the county court had
no jurisdiction under section 204 (or otherwise) to entertain an appeal in relation
to that decision.