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Case No: CCRTF 99/0558/2
CCRTF 99/0732/2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRENTFORD COUNTY COURT
(HIS HONOUR JUDGE MARCUS EDWARDS)
AND
WANDSWORTH COUNTY COURT
(HIS HONOUR JUDGE RICHARD WALKER)
Royal Courts of Justice
Strand, London, WC2A 2LL
Friday, 21st January 2000
B e f o r e :
LORD JUSTICE HENRY
and
LORD JUSTICE POTTER
- - - - - - - - - - - - - - - - - - - - -
|
LONDON
BOROUGH OF EALING
|
Appellant
(1)
|
|
-
and -
|
|
|
NIKOLA
SURDONJA
|
Respondent
(1)
|
|
AND
|
|
|
ABDURAHMAN
MOHAMMED
|
Appellant
(2)
|
|
-
and -
|
|
|
LONDON
BOROUGH OF HAMMERSMITH & FULHAM
|
Respondent (2)
|
-
- - - - - - - - - - - - - - - - - - - -
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Kelvin Rutledge Esq (instructed by Messrs Richard Polson for Appellant
(1))
Jan Luba Esq (instructed by Messrs Sutovic & Hartigan for Respondent
(1))
Stephen Knafler Esq (instructed by Hammersmith & Fulham Community
Law Centre for Appellant (2))
Robert Levy Esq (instructed by London Borough of Hammersmith and Fulham
for Respondent (2))
- - - - - - - - - - - - - - - - - - - - -
Judgment
As Approved by the Court
Crown Copyright ©
Friday, 21st January 2000
JUDGMENT
LORD JUSTICE HENRY:
1) We are asked to hear these appeals together, and to treat them as test cases
to answer three issues which we are told are unresolved (at Court of Appeal
level) yet frequently arise. All flow from the situation where an eligible
applicant (homeless or threatened with homelessness and in priority need)
applies to the receiving local housing authority ("LHA") for assistance with
his accommodation, and that LHA, instead of providing that assistance itself,
refers the applicant to another LHA ("the notified LHA") under Section 198 of
the Housing Act, 1996 ("the Act") to provide it. This the receiving LHA may do
when enquiry reveals that the applicant has no "local connection" with the
receiving LHA, but has such a connection with the notified LHA to whom the
reference is made. In all cases where I simply refer to a section number, the
reference is to the Housing Act, 1996.
2) As Turner J said in R -v- Southwark London Borough Council ex parte
Hughes [1983] 30 HLR 1082 at 1089:
"Housing is about the most basic social requirement of an individual. It is
not conceptual, it is factual. The Housing Act is intended to be of social
effect."
When dealing with the priorities of those of the homeless who are in priority
need, the statute by definition deals with those who need support and stability
the most. And, in addition to catering to British nationals, there are, as
these two cases show, the problems of refugees, often from bloody civil
conflict in their own lands (here Croatia and Somalia respectively). These
appeals therefore concern real problems, real needs, and a shortage of
resources to meets those problems and needs.
3) The three issues are:
i) What is the material date for determining whether the eligible applicant
has a "local connection"? Is it: a) the date he applies as homeless; b) the
date when the authority reaches its decision (under Section 193(2)) whether to
refer the application to another LHA or to secure that accommodation is
available for the applicant; or c) the date it reviews its decision?
(Paragraphs 22 - 37)
ii) Can occupation by such an applicant of interim accommodation pending the
decision or its review constitute "normal residence of [his] own choice" for
the purposes of Section 199(1)(a) of the Act? (Paragraphs 37 - 48)
iii) What is the scope of the Section 202 review: a) must the reviewing
officer consider all the facts of the case afresh? b) May he do so? c) Or
might he limit his role to considering any representations he receives from the
applicant, and checking for evident errors in the initial decision? (Paragraphs
49 - 50)
4) In these cases, both applicants presented as homeless, Mr Surdonja to Ealing
London Borough Council ("Ealing") and Mr Mohammed to Hammersmith and Fulham
London Borough Council ("Hammersmith"). Those receiving LHAs were under a
Section 184 duty to enquire as to the applicant's eligibility for assistance,
the duty owed to him, and (under Section 184(2)) they may enquire
whether the applicant has a local connection with the district of another LHA
to which his application may be referred. Section 184(2) uses the "may" in
relation to the receiving LHA's power to enquire into the possibility of
referral, but they are not obliged so to do. They are quite entitled to take
on responsibility for the applicant whether or not they would have established
power to refer.
5) In each case the receiving LHA embarked on the enquiry under Section 184,
found that each household was eligible for accommodation to be provided, but in
each case referred the duty to provide that assistance to another LHA, the
notified LHA.
6) We are concerned here with the situation postulated in Section 193(1) of the
Act:
"...where the local housing authority are satisfied that [the] applicant is
homeless, eligible for assistance and has a priority need, and are not
satisfied that he became homeless intentionally."
7) In those circumstances, Section 193(2) obliges the LHA receiving an
application "... to secure that accommodation is available for the occupation
of the applicant" for a minimum of two years (see Section 193(3)) unless
the receiving LHA "... refer the application to another local housing
authority".
8) The powers of referral to another LHA are dealt with in Sections 198 to 201
of the Act. Section 198(1) provides that where the receiving LHA would be
subject to the Section 193(2) duty to secure that accommodation is available
for the applicant but "... consider that the conditions are met for
referral of the case to another local housing authority", they may notify that
authority. The relevant conditions of referral to another LHA are met if:
"a) 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
whom his application was made, and
b) 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"
[Subsection c) deals with victims of domestic violence, and does not here
apply.]
9) Thus the receiving LHA cannot refer the applicant to another LHA where the
applicant (or any person in his household) has a local connection with the
receiving LHA's area. Nor can it refer where the applicant has no connection
with its area nor with any other area. It can only refer where the applicant
has no connection with it but has a local connection with the notified LHA.
10) "Local connection" is defined by Section 199 of the Act. Section 199(1)
limits the meaning of "local connection" in Section 198 to connections caused
by any one or more of four things:
"(a) because he is, or in the past was, normally resident there, and that
residence is or was of his own choice,
(b) because he is employed there,
(c) because of family associations, or
(d) because of special circumstances."
Those listed causes of a local connection emphasise matters that go to having a
place in the community: choice, employment, the continuity of support that
family associations can give, and all special circumstances which can
contribute to such a socially beneficial "local connection".
11) The requirement that to operate as a qualifying cause, normal residence
must be "of his own choice" does not exclude all involuntary reasons for
non-qualifying residence. Subsection 3) identifies two disqualifying causes:
service in the armed forces, or detention under Act of Parliament (eg prison).
Subsection 5) gives the Secretary of State power to specify
"... other circumstances in which:
...
b) residence in a district is not to be treated as of a person's own choice"
and he has not so specified.
12) In deciding whether the applicant has a local connection with the area
being considered, it seems to me that the words of Lord Brightman in R -v-
Eastleigh Council ex parte Betts are still relevant, despite the fact that
the statutory background (and in particular the "jumping the queue" element) is
not precisely as it was: see [1983] 2 AC 613 at 627E:
"But `local connection' means far more than that. It must be built up and
established: by a period of residence; or a period of employment; or by
family associations which have endured in the area; or by other special
circumstances which spell out a local connection in real terms."
13) In Mr Surdonja's case, by decision letter of 2nd November 1998, Ealing
found him to be eligible for assistance, not intentionally homeless, and with
priority need (ie that he was owed a duty by some LHA to arrange temporary
accommodation for his household) but referred his application to Westminster
LHA on the grounds that neither he nor his wife had a local connection with
Ealing, but he had a local connection with Westminster.
14) In Mr Mohammed's cases, by decision letter of 28th July 1998, Hammersmith
& Fulham accepted that he was owed such a duty but referred that duty to
Ealing on the basis that neither he nor his wife, Mrs Farah, had any local
connection with Hammersmith, but she had a local connection with Ealing.
15) Each decision letter informed the applicant of his statutory right to a
review. This was introduced for the first time by the 1996 Act.
16) In Mr Surdonja's case, the letter said:
"If you disagree with this decision you have the right to request a review,
which will be carried out by Senior Officers in the Housing Department.
If you wish to request a review, you must do so within 21 days of receiving
this letter. You will be able to make written representations which the review
panel will take into account.
You may also send written representations made by other people on your
behalf.
The review panel will make its decision based on all the information available
to it at the time it meets, including your written submissions. It is
therefore essential that you tell us everything you consider relevant."
The head of the panel conducting that review wrote on 20th November 1998,
implicitly confirming that the panel would take into account all information
received. In the light of those letters, it is somewhat surprising that
Ealing's first ground of appeal against the trial judge's quashing of that
decision letter was:
"That the learned judge erred in law ... in holding ... that the material time
for assessing local connection for the purposes of Section 198 was the date of
the review (ie December 1998). The learned judge ought to have directed
himself that the starting point for assessing local connection was the date of
the ... application for housing assistance (ie August 1998)."
17) In Mr Mohammed's case, the letter read:
"If you feel that the Council has acted unreasonably in deciding that your
application should be referred, you have the right to request a review of this
decision ... within 21 days ...."
18) In each case, a review was requested within time and in each case
up-to-date letters supporting the claim for local connection with the receiving
LHA were sent.
19) The statutory provision giving applicants the right to review a referral to
another authority is found in Section 202(1) c), d) and e). Section 203
empowers the Secretary of State to make provision by regulation for the
procedure to be followed in connection with a review. At the time of the
review in these cases, the Allocation of Housing and Homelessness (Review
Procedures and Amendment) Regulations 1996 governed the review. It provided
that the review should be conducted by an officer senior to the one who made
the decision (Regulation 3), the decision should be notified within eight weeks
(Regulation 4), and that the review should be carried out "on the basis of
facts known to them at the date of the review" (Regulation 8). This is also
reflected in the official Code of Guidance, 1997 version at 17.11. Regulations
2 to 8 have since been replaced by the Allocation of Housing and Homelessness
(Review Procedures) Regulations, 1999, which Regulations do not contain the
passage from Regulation 8 quoted above.
20) In the event, in each case the review confirmed the decision taken. And in
each case, the review decision letter expressly stated that all the matters
raised subsequent to the decision under review had been taken into account:
that is to say that the date of final decision was the date of the review.
21) Section 204 of the Act gives an applicant who has requested a review an
appeal to the County Court on a point of law if dissatisfied with the decision
on the review, giving the court power to confirm, quash, or vary the decision.
That is the scheme of the legislation.
22) The first issue is what is the material date for determining whether the
eligible applicant has a "local connection".
23) The three dates suggested are the date of the application (presenting as
homeless), the date of the housing and referral decision, and the date of the
decision letter after the review.
24) In the appeals with which we are concerned, the time elapsed between
application and the end of the process with the review was 3½ months in
one case and 5 months in the other. Other reported cases suggest that such
times are not untypical. The Code envisages 30 working days between the
commencement of the enquiry and the decision. The 1996 Regulations provide
that the review decision will be within 8 weeks of the request for review
unless the authority and the appellant agree a longer time.
25) The significance of the date for determination of the local connection is
well illustrated by the facts in Mr Surdonja's case. He had come to this
country as a refugee from Croatia on 14 August 1997. He shared a studio flat
in Westminster with his brother for a year while awaiting his wife and three
small children, then all under seven, from Croatia. Over the year in question
Mr Surdonja had done little or nothing to integrate himself into that
community. His brother, after five years here, does not speak English. All
changed when his wife arrived with their three children. His wife has an
English speaking uncle in Ealing. When she arrived with her children in August
1998 they moved to the uncle's home. But that could never be a viable long
term solution - four adults and five children in a two bedroom house. So
within a couple of days of the wife's arrival in this country, they presented
as homeless to Ealing. Ealing was to refer the housing duty to Westminster, on
the basis that there was no local connection in Ealing, and Mr Surdonja had a
local connection with Westminster. The judge was to quash Ealing's decision
referring the housing duty to Westminster on the basis that there was an
arguable case not addressed by Ealing that by the time of the decision letter
(some 3½ months later) there was evidence by reason of residence and/or
family association to support local connection with Ealing, which there was not
and could not have been at the date of presenting as homeless.
26) The bulk of that time had been spent in interim accommodation provided
under Section 188 of the Act by Ealing. The nature of the case was that the
local connection was established by residence in Ealing including the time in
interim accommodation, together with all the facts connected with it, such as
the support from the English speaking uncle, and the fact that the three
traumatised children had, after great initial difficulties, settled into a
local school - their mother having attended with them every day for the first
month. Additionally, one parent (the documents are contradictory as to which)
is attending the local tertiary college to learn English. All, it was argued,
added up to a local connection.
27) That case for recognition of a local connection arose entirely from events
after the application. At the date of application there was no case whatsoever
for a local connection with Ealing. Ealing's initial decision letter (2nd
November 1998) makes it clear that they had only considered as residence in the
Borough the time the family spent with the uncle, Mr Prosenica, from 23rd
August (the date of application) to 16th September, when Ealing provided
interim accommodation. So if Ealing are right as to the relevant time to
consider local connection, their appeal must succeed; there would be no
arguable case for local connection if the cut-off date were either 23rd August
or 16th September.
28) There are certain similar features in Mr Mohammed's case. Mr Mohammed and
his wife, Mrs Farah, were displaced by the brutal civil war in Somalia. In
late 1992 they went with their two sons (then 5 and 4) to Kenya. In 1995 Mrs
Farah came to the United Kingdom. She lived most of the time, until her
husband's arrival, in Ealing.
29) Mr Mohammed arrived in England on 31st January 1998. He had lost contact
with his wife. He lived in Hammersmith with the blind son of a close friend,
now dead. He was re-united with his wife. Together they applied (on 16th
April 1998) to Hammersmith for assistance with their accommodation. That
application was decided by letter dated 23rd July 1998, which held that neither
spouse had a local connection with Hammersmith, but Mrs Farah had one with
Ealing. Accordingly, the housing duty was accepted and referred to Ealing.
The applicants sought a review, which, on 29th September, confirmed the
decision. The applicants then appealed to the County Court (under Section 202
of the Act) and on 17th June 1999 that appeal was dismissed. The County Court
decision is now challenged before us.
30) There are two grounds of challenge common to both appeals. First, in each
case the local authority has continued to provide interim accommodation,
initially until the date of original (pre-review, if applicable) decision (see
Section 188), and has voluntarily continued to provide that accommodation
pending the outcome of this appeal, and in each case it is said that residence
within the borough in that accommodation does not count. Second, the treatment
of "family associations" and "special circumstances" when dealing with refugees
arise in each case. As to this second point, we say no more than in our
judgment the starting point is the position of the applicant and his household
and, in having regard to both "family association" and "special circumstances",
while we do not discourage general rules such as are to be found in the Local
Authority Agreement, we note that Parliament left those broad phrases
undefined, and to be judged as a matter of fact and degree in every case. For
instance, the actual closeness of the family association may count for more
than the precise degree of consanguinity.
31) The first difficulty that the LHA face is that there is no support for
their case in the statute. Where, as here, there is a statutory entitlement to
a review, there may be two decision times - first the initial decision, and
then the review. One would expect both tribunals to consider all relevant
facts before them. If either stage of decision taking was to be artificially
limited in what facts it could consider, one would expect the statute to make
it plain. Otherwise, after the decision but before review the court would have
to shut its eyes to a subsequent event which might either entitle or disentitle
the applicant to the local connection in issue. In fact, as the applicants
point out, the statute uses the present tense to describe the issue - see
Section 184(2) the duty to enquire "... whether he has a local connection".
32) Nor is there conclusive authority to support the LHA's case. They rely on
two cases, both decided before the 1996 Act introduced the statutory
entitlement to a review of the decision.
33) The first case is R -v- Newham London Borough Council ex parte Smith
[1996] 29 HLR 213, a decision of Sir Louis Blom Cooper QC sitting as a deputy
High Court Judge. I have little quarrel with the ratio of his decision on the
law as it then stood (ibid at 221):
"In my judgment a local authority may properly ask itself whether the applicant
had a local connection ... at the date of the application under Part III of the
Housing Act, 1985 so long as it is prepared to review its decision in that
regard should the delay in its investigations under Section 62 [cf Section 184
of the 1996 Act] be prolonged in such a way as to call for a reconsideration of
its decision on referral."
34) The review was clearly an extra-statutory voluntary review. Now that the
right to a review is statutory, that right is not dependent on there having
been any delay, and all relevant matters put before the reviewing officer or
panel must be considered.
35) Next, there is the Court of Appeal decision in R -v- Hammersmith &
Fulham London Borough Council, ex parte Avdic [1996] 30 HLR 1. There a
refugee from Bosnia moved from Dewsbury to London, where she applied as
homeless. Hammersmith accepted that she was owed a duty, but referred her back
to Kirklees (which covered the Dewsbury area) in September. Her solicitors
then sent in more material which the LHA considered before, in January,
refusing her again. The reconsideration of the case was voluntary. Lord
Justice Simon Brown said (albeit obiter) at 8:
"To my mind it is far from clear that an appellant's claim to be housed under
Part III of the 1985 Act can be improved in this fashion simply because the
local authority accede to a request to review the matter, as this local
authority has done after the initial decision was taken."
He said he found it unnecessary to deal definitively with the point on that
occasion. What the Lord Justice was in fact questioning was whether the local
authority should have acceded to the request for a review. I do not read him
as suggesting that where statute grants the applicant a right of review, that
review is limited to his case as originally put forward. That in my judgment
would require express language which is not there. It would also, as I will
develop, not contribute to the purpose of the legislation.
36) The point was considered by Turner J in R -v- Southwark London Borough
Council ex parte Hughes (see above). That too was under the 1985 Act,
before there was a statutory right of review. Turner J concluded the passage
quoted in paragraph 2 of this judgment:
"It may be thought therefore that there are compelling reasons why the
circumstances of an individual at the time the inquiry is carried out and
the decision made, must be the circumstances which the local authority is
required to investigate for the purpose of coming to their decision whether or
not the applicant is homeless" (emphasis added)
37) I agree with that, and it is clearly all the truer after the introduction
of the statutory right of review. For the statutory appeal to the County Court
to lie, that appeal must be against the review (Section 204(1)). So the review
is the final administrative stage, and the statutory appeal to the County Court
only lies after the review. Accordingly, I would answer the first issue that
the material date for determination whether the eligible applicant or member of
his household has a local connection is the date the LHA reviews its
decision.
38) Linked to the first issue is the second issue: can occupation by the
applicant of interim accommodation pending decision and review constitute
normal residence "of his own choice".
39) This seems to me to be a question of statutory construction. As set out in
paragraph 11 of this judgment, it is clear that Section 199(3) gives a
restricted statutory meaning to the phrase "of his own choice", that meaning
can only be extended by the Secretary of State, and he has not extended it.
Therefore, even if the applicants did not occupy the interim accommodation out
of choice (an existential concept not explored) their occupation would be of
their own choice for the purposes of Section 199(3).
40) Once the meaning of "choice" is clarified, there is no problem as to
"normally resident". Both families are normally resident in their respective
boroughs - they certainly are not normally resident anywhere else. As Lord
Brightman made clear in the Eastleigh case, "normal residence" is but a factor
in the whole of the existence of a local connection. Part of the commitment
which could help to turn normal residence into local connection is the
schooling of the Surdonja children.
41) Support for the applicant's case that interim residence pending final
decision counts is to be found in Regulation 8 of the Allocation of Housing and
Homelessness (Review Procedures and Amendment) Regulations 1996, as to which
see paragraph 19. Though those Regulations are expressed to be procedural,
Regulation 8 is supported by the statutory Code of Guidance on the Act, 1997
Edition, which states:
"17.11 The authority should then carry out the review on the basis of the facts
as known to them at the date of the review, including written
representations."
Those words would seem conclusive of Issue 2. Ealing however contend that this
simply reflects the position under the old statutory instrument. They rely on
the 1999 statutory instrument which removes the old Regulation 8(1)b with its
general duty to
"... carry out the review on the basis of the facts known to them at the date
of the review"
and replaces it with an entirely different Regulation 8(1)b. I am puzzled by
that amendment, and in doubt as to what, if anything, beyond the literal fact
that something is replaced by something entirely different and unrelated, to
read into it. If a drastic change was contemplated, I would not expect the
guidance to remain unchanged in the form of the 1997 edition. But the original
8(1)b was in force when Ealing took their decision. They did not apply it. In
my judgment they should have. And, while not suggesting they did, they should
not have taken the 1999 draft regulations into account, even if they knew what
they were, five weeks before they were signed. The same applies in Mr
Mohammed's case.
42) The question still remains as to what Regulation 8 in its form as at the
date of review means when it says that:
"... the authority shall ... carry out the review on the basis of the facts
known to them at the date of the review."
43) The Code, in paragraph 17.11, expands that to add:
"... including any written representations. It may in some cases be necessary
to make further enquiries of the applicant."
Judge Marcus Edwards, in Surdonja, held (judgment, page 8) that the relevant
circumstances must be:
"... the circumstances of the individual [known to the authority] at the time
the decision is made, or as thereafter updated at the time of review."
Judge Richard Walker, in paragraph 12 of his careful judgment, read these words
as including all further facts which, had they been known, might have led to a
different conclusion, but excluding all changes in circumstances subsequent to
the original decision. I prefer the judgment of Judge Marcus Edwards on this
point. I cannot find support for the thesis advanced by Judge Richard Walker
in the primary legislation, the Regulations or the Code. It seems to me clear
that if, between decision and review, there was either a change of circumstance
which might establish the local connection with the LHA to which the
application had been made (eg that the applicant had obtained permanent
employment in the borough) or, conversely one which disqualified him from
looking to that LHA to meet his housing needs (eg ceasing to be entitled to
priority need, or losing employment in the borough, or family associations in
the borough moving away) then in either case the reviewing officer should take
those changed circumstances into account. It follows that, as a matter of
statutory construction, the reviewing officer must take into account all
relevant facts at the date of review.
44) I am not persuaded to the contrary by the case mounted by the LHA that the
statute must be construed purposively to reflect the fact that the mischief
aimed at is to relieve the pressure on boroughs which prove to be targets for
applicants, and to spread the load more equitably between boroughs. The
argument runs that to count towards a local connection the time spent in
residence in a borough only by grace of being a beneficiary of the interim
obligation imposed by Section 188 on the LHA to which application is made, is
to defeat the redistributive purpose of the legislation. It is also submitted
that it is internally unfair, in that it is not a legal requirement that
interim Section 188 accommodation be provided within the receiving LHA (see
Section 208) and it is also unfair that those accommodated within their desired
district should be advantaged by their good fortune. More fundamentally, there
is the "jumping the queue" argument that played its part in the Eastleigh case.
And linked to this is the third issue, the scope of the review.
45) First, the Act's purpose. I accept that there was a redistributive
"spreading the load between LHAs" purpose to the Act. But that purpose was to
be achieved not by any merit-free reallocation formula, but by rewarding
applicants who had a local connection with the borough of their choice, where
they applied. It was to be achieved by providing that the receiving LHA was
not entitled to refer the statutory responsibility elsewhere when the applicant
had a local connection with them. That is a statutory purpose which must
equally be taken into account. The statute's redistributive mechanisms are
certainly no more significant when construing the Act than the reward the Act
gives to those who have, by satisfaction of the local connection rules, become
an active part of the community. That seems to me to be as important a purpose
as a straight redistributive purpose.
46) Second, recognising good (or more significantly, involved) citizenship is a
worthy legislative intention, and the incentive to applicants to establish a
local connection with the LHA to which they apply more than compensates, in the
balance sheet of public good, for the fact that other applicants whose Section
188 housing is outside the district are not so well placed. Insofar as it may
seem unfair in that such persons do not have the same opportunity as those
whose interim housing is within the borough, that is not a reason for denying
the latter the benefit of a local connection if that is what they have created
by the time of the review.
47) Third, the "jumping the queue" unfairness. At the time of Lord Brightman's
speech in Eastleigh, if the qualifying applicant established a local
connection with the LHA to which he had applied, he went to the top of the
housing list. One of the innovations of the 1996 Act is that help given under
Section 193(3) is temporary - see sub-sections (3) to (7). So, Mr Knafler and
Mr Luba for the applicants are right to submit, that provision of the "full"
housing duty under Section 193 results in the provision of temporary
accommodation only, in which the homeless person remains until his "waiting
list application" eventually succeeds on its merits in accordance with the
LHA's general allocation scheme. So to that extent the element of queue
jumping is reduced and any residual "unfairness" is not sufficient to impose
the construction the LHAs propose on the Act.
48) Accordingly, I would answer Issue 1: the material date for determining
whether a Part VII applicant has a local connection is at the date of the
review of the decision if reviewed, and otherwise the date of the decision. In
answer to Issue 2, occupation of interim accommodation under Section 188 of the
Act pending the decision can constitute "normal residence" contributing to a
local connection under Section 199(1). The weight to be given to the fact of
that residence is a matter for the LHA in the initial decision, and the
reviewing officer or panel later, who will naturally pay attention to the
extent to which the applicant has used that period of residence to establish
that element of permanence and commitment to the district in question: local
connection in a real sense, as used by Lord Brightman in Eastleigh
above.
49) I turn to Issue 3, the scope of the review and the duty of the reviewing
officer. The LHAs' initial decision is an inquisitorial one. It is their duty
to conduct a proper enquiry (albeit they often will have to rely on facts
obtained from the applicant). After the applicant has initiated the LHAs'
Section 184 enquiry by applying under Section 183, he has no obligations other
than to assist the enquiry as required until the decisions as to housing duty
owed and referral are taken. Then the applicant has a statutory right to
request a review under Section 202(1)(c), (d), and (e). I have already dealt
with the outline provisions under paragraphs 19 to 21, and with the practical
application of the review at paragraphs 40 to 43.
50) "Review" is the appropriate word for the act of submitting for examination
and revision an inquisitorial administrative decision affecting the applicant's
"most basic social requirement" (per Turner J, R -v- Southwark London
Borough Council ex parte Hughes above at 1089). Given the importance of
the decision, and everything that has been said in this judgment thus far, the
reviewing officer must consider all of the facts afresh. The Code (1997
revision) still in Paragraph 17.11 limits the review to "... facts as known to
[the LHA] at the date of the review." That is a necessary qualification, given
the fact that the review is ordinarily a review of the file, in that it is a
decision on the documents without a hearing. As I have previously said, I am
not prepared to assume that that plain requirement survives in the Code by
oversight. The scope of the review must be wide enough to consider all the
up-to-date facts with all others afresh, to see whether the local connection
has been made out.
That is how I would answer the third issue.
51) Having answered the three issues in a way favourable to the applicants, I
turn to the individual appeals.
52) In relation to Mr Surdonja's application, the fundamental error of law
relates to the dates when the question of local connection falls to be
considered: the date of decision and the date of review, if applicable. Had
the LHA rightly applied the law, they would have considered at the respective
decision times the whole time over which the Surdonja's had been resident in
the LHA district, and would not have ignored the period in interim
accommodation under Section 188.
53) At the date of decision (2nd November 1998) paragraph 2 dealt with normal
residence in the LHA and restricted it to residence with Mr Prosenica, the
wife's uncle, at 37 Anstey Court - that is to say three week's residence only,
with all the time occupying interim accommodation in the Borough under Section
188 wrongly excluded. In their request for a review the applicant's solicitors
did not challenge this part of the finding, themselves only mentioning
residence to say: "Although our client has not lived at 37 Anstey Court for
very long ...". The review decision letter does not mention residence at all,
but both before Judge Marcus Edwards and before us, the LHA argued that the
right date for consideration was the date of application, thus ignoring all
residence through Section 188 accommodation, as well as all the integration
which the family have achieved, with the assistance of the wife's uncle, since
that date. In my judgment, the judge was right to conclude that the decision
letter
"... makes no reference to the Panel having reviewed the possibility of local
connection by reason of normal residence or family associations"
as well as having ignored what was achieved during the time of the Section 188
accommodation.
54) The error of law was therefore fundamental, and precluded the LHA from
asking themselves the right question. Such an error of law would normally be
fatal to the decision, but by their notice of appeal, the LHA contends that, as
the point as finally developed was not spelled out in the applicant's
solicitor's letter submitted for consideration at the time of review, the LHA
was not bound to consider it. The judge found that:
"The duty of the local authority is to review the decision which it is
requested to review, in this case the decision to refer.
Their duty is to apply the provisions of the Act to the facts before them on
the file, together with any further representations and evidence put before
them.
In my judgment they are not limited to, and should not limit themselves to,
reviewing particular points, to the exclusion of other relevant, or potentially
relevant, points. They must review the facts afresh, as a whole, and apply the
Act to them."
Those facts of course must be facts known to them, hence the judge's reference
to the facts in question being found in the documents. The decision taken here
was fundamentally in error as to the law on the correct application of those
facts, and the judge was right in his analysis of the principles involved and
in the order he made. I would dismiss the LHA's appeal in this case.
55) I turn then to Mr Mohammed's case. Again, in his case it is clear that
both in the decision letter (23rd July 1998) and on review (letter of 23rd
September 1998) the LHA ignored all residence after the grant to the applicant
of interim Section 188 accommodation in the LHA area - that is to say they too
misdirected themselves in law, and consequently only considered a further five
months plus (or nearly eight months in all - see the judgment paragraphs 37 -
47).
56) Secondly, complaint is made that the judge glossed the statute, and in so
doing imposed too stringent a test on the establishment of a "local
connection". On review, the LHA's reviewing officer said:
"I have also considered the cumulative effect of all of these various factors,
but I am not satisfied that the household's stated need to live in this borough
is an essential compassionate, social or support need ... sufficient to
have given rise to a local connection with this authority in real terms."
57) The applicant's case is that this is a misdirection. Proving a local
connection is one thing: proving that you have an essential, compassionate
social or support need is quite another. Forensic archaeology suggests that
the source of this phrase is its use by the Hammersmith LHA in their 1996
decision letter in the case of Hammersmith & Fulham London Borough
Council ex parte Avdic (above, at 28 HLR 897 at 901), where it was quoted,
without comment, at first instance and not referred to at all on appeal. In my
judgment that is a clear misdirection in law. In so finding, I have gone back
to Lord Brightman's speech in R -v- Eastleigh Council ex parte Betts. I
have already made the point that the queue for permanent housing is no longer
"jumped" as a result of Section 193, and have already accepted that the local
connection should be real and not illusory, and where real, should be rewarded.
There is no "purposive" construction case for requiring that the applicant show
an essential compassionate, social or support need to live in the LHA's
district. That is to put the test for a local connection too high.
57) I look no further than those two fundamental errors of law. The applicant
is entitled to have the decision on his application reviewed on a correct legal
basis. His case should be considered on the law as properly applied, and on
the facts at the time of that review. I would allow this appeal.
LORD JUSTICE POTTER:
I agree.
Order:
CCRTF 99/0558/2
Appeal dismissed with costs; legal aid assessment; permission to appeal to
the House of Lords refused; order as per minute of order.
CCRTF 99/0732/2
Appeal allowed; respondent to pay appellant's costs; detailed assessment of
legal aid.
Orders do not form part of approved judgment.
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