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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Malaga-Cano v Royal Borough Of Kensington & Chelsea [2002] EWCA Civ 436 (7 March 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/436.html Cite as: [2002] EWCA Civ 436

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL
THE DECISION TO REFUSE PERMISSION TO
CLAIM FOR JUDICIAL REVIEW AND EXPEDITION

		Royal Courts of Justice Strand London WC2 Thursday, 7th March 2002

1. LORD JUSTICE KENNEDY: This is a claimant's application for permission to appeal from a decision of Mr Justice Newman who, on 20th December 2001, refused the claimant Mrs Malaga-Cano permission to apply for judicial review. The claimant is a Peruvian by birth who has lived in the London Borough of Kensington and Chelsea for some 16 years. She and her husband were divorced in 1990. He is Dutch and he returned to Holland. She lives with their daughter Geraldine who was born on 4th May 1981. In 1994 they were evicted from private rented accommodation and have had housing difficulties ever since then.
2. The claimant and Geraldine suffer from health problems. The claimant has arthritis in her knee which impairs her ability to use stairs. She suffers from claustrophobia so that she cannot use lifts. She suffers from psychiatric problems in the form of stress, depression and at times hyperventilation and other problems of that kind which she says were not apparent prior to 1994 and, sadly, culminated in an attempt to commit suicide it seems in November 2000. Geraldine, for her part, suffers from stress and bulimia nervosa that, apparently, is triggered by housing difficulties.
3. The claimant sought the assistance of the local authority. She was offered certain properties and lived in one or two of them. In 1995 she was accommodated on an estate and there Geraldine was abused by other children.
4. THE APPLICANT: Excuse .....
5. LORD JUSTICE KENNEDY: No. I am sorry. Her position on the housing register - it seems from documents - has fluctuated from time to time. There was a time when her priority fell markedly because it was believed by the local authority that Geraldine was living with her father in Amsterdam. On 21st March 2001 she applied under Section 183 of the Housing Act 1996 as a potentially homeless person. Her tenancy at that time was about to end and she said she could not afford the gap between the housing benefit she received and the rent required of her.
6. The judicial review proceedings were commenced by way of a complaint that the housing authority had failed to assess her position. She commenced those proceedings on 30th July 2001. She was then seeking an order from the court that her position be assessed in accordance with Section 184 of the Act, that she be granted interim relief pending that assessment and that consideration be given to the question of whether or not she is in priority need.
7. The matter came before the court, certainly before Mr Justice Newman, on 10th August 2001 and may have come before someone before that.
8. On 5th September 2001 the local authority wrote to the claimant accepting that she was eligible for assistance on the basis that she was homeless and in priority need, setting out the position so far as the local authority was concerned in terms of long term housing on a points basis. On 8th November 2001 the local authority again wrote to her solicitors saying at that stage that she was accommodated in self-contained studio accommodation, and was 429th on the list for a two-bedroom unit. The letter explains that her points depended on the quality of her present accommodation and its security, that is to say, the ability of the claimant to remain in that accommodation and whether or not she could afford to stay where she was. The letter raised the issue so far as the local authority was concerned as to why she was able to remain in the accommodation in which she was and pay for it if she could not afford it. On 3rd December the local authority wrote again to her solicitors making an assessment. Temporary accommodation was offered up to first floor level without a lift and up to second floor level with a lift and observations were made about permanent accommodation and storage of goods.
9. On 4th December her solicitors wrote to the local authority pointing out the difficulties arising about location and about the height of the accomodation having regard to the health difficulties to which I have referred. On 12th December the local authority wrote to the solicitors agreeing that it should not be accommodation above first floor, that it should be in the south or central area for two people albeit there may not be two bedrooms in the accommodation. That letter also raised the question whether or not it could be regarded as being within an estate, and that issue was obviously left open. In the light of that letter which effectively had set out the local authority's position having made an assessment, on 17th December an embargo was placed on public funding of the claimant's claim so that she no longer had the advantages of the services of a solicitor.
10. Three days later, on 20th December, the matter came before Mr Justice Newman who made the decision of which complaint is now made. The judge, in essence, said this:

"The position which has been reached is that on the face of the offer which has been made and the evidence before me the defendant has discharged its statutory duties as far as any assessment or review by this court is concerned. It seems to me that the detail which is still obviously causing the claimant trouble can only satisfactorily be resolved if these proceedings are brought to an end. It will then be possible for satisfactory consideration to be given to any new matter or any new ground which may exist for dissatisfaction with what is presently on offer."

11. I, for my part, can find no fault in the approach adopted by the judge.
12. These proceedings were initiated in order to obtain an assessment and the assessment has been made. How the procedure is operated from now onwards must be a matter for negotiation between Mrs Malaga-Cano and the local authority. Judicial review does not exist as a form of ad hoc running appeal from dedisions of the local authority in relation to housing matters. The High Court can only intervene if there has been some demonstrable error of law on the part of the local authority in its approach to such difficult matters. The authority having made its assessment in this case, I can find no evidence of any arguable error of law and, accordingly, no basis for granting permission to seek judicial review which is the remedy which Miss Malaga-Cano at this stage seeks.
13. Accordingly, this application for permission to appeal from the decision of the judge is dismissed.
Order: Application dismissed