Housing Law -Who Reviews the Reviewer?

By : Kerry Bretherton

Judgment in L.B. Tower Hamlets v Runa Begum [2002] EWCA Civ 239 was handed down by the Court of Appeal on 6th March 2002. The judgment drives a cart and horses through the judgment of the Court of Appeal in London Borough of Newham v Adan handed down only 10 weeks earlier.

Adan sent shockwaves throughout local authorities when the Court of Appeal indicated that the procedures set out in Part VII Housing Act 1996 for determining homeless applications would only be compatible with Article 6 of the Convention if local authorities contracted out the review officer’s functions in cases where there was or could be a factual dispute (Hale L.J dissenting).

Under Part VII a local authority is required to provide accommodation for a minimum period of 2 years if satisfied that the applicant is eligible, homeless, not intentionally homeless, and in priority need. Other lesser duties may be owed to applicants who do not satisfy all of the above criteria.

An applicant who is dissatisfied with the local authority decision can seek a review of the decision. If carried out by a local authority review officer that officer must be senior to the original decision-maker. If dissatisfied with the review decision, the applicant can appeal to the County Court within 21 days of receiving notification of that decision. By s.204 the County Court has the power to quash, uphold or remit the review decision.

There is an absolute right of appeal and no requirement for leave to be granted. However, the appeal is not a rehearing and is restricted to an appeal on a point of law. The power is akin to that of the High Court with regard to judicial review Nipa Begum [2000] 1 WLR 306.

In Adan the county court judge ordered that the local authority should carry out a further review and added a direction that, in accordance with the Human Rights Act 1998 the review should be compatible with the Article 6 of the Convention. The council appealed on the basis that the court did not have jurisdiction to order the council to carry out a review in a certain way. Ms. Adan filed a respondent’s notice arguing that the process was flawed because the review officer was an employee of the council, and argued that the council should contract out the functions. Alternatively, Ms Adan sought a declaration of incompatibility.

The Court of Appeal allowed the appeal on the narrow ground on which the council had appealed. However, it went on, at the invitation of the parties, to consider the wider issue of the validity of the whole process. Brooke L.J. in the leading judgment considered that a distinction should be drawn between cases in which there was no factual dispute between an applicant and the council in which the right of appeal was sufficient to comply with Article 6, and those where there was a factual dispute in which the process was not Article 6 compliant. In the latter category of case Brooke L.J. indicated that the process should be contracted out. The council could not seek to appeal this adverse aspect of the judgment because it had won the appeal, and this aspect of the judgment was obiter.

Begum was a case in which the council had accepted the full s.193 duty and the appeal had been brought on the basis of the suitability of accommodation. By agreement between counsel the County Court considered the issue of whether Adan should be followed and held that it should. The appeal was heard at a very early stage due to the need to clarify whether the obiter views of the Court of Appeal in Adan were correct and should be followed by the county courts.

Laws L.J. gave the leading judgment with which Lord Woolf C.J. and Lord Justice Dyson agreed. The Court held that the indications given in Adan were wrong and that s.204 Housing Act 1996 conferred full jurisdiction on the County Court. Accordingly, the s.202 review coupled with the s.204 appeal was sufficient to comply with the reasoning set out in the judgment of Lord Hoffman in Alconbury. The distinction between factual and non-factual disputes adopted in Adan was expressly rejected. However, Laws L.J. did approve the concession made in Adan that the decision was a determination of a civil right and obligation.

The Court of Appeal refused permission to appeal to the House of Lords. It is anticipated that the application will be renewed. Begum is a case on suitability; the council had accepted the full S193 duty. The Court of Appeal found that the process did engage civil rights and obligations and the council succeeded on the jurisdiction issue. If permission is granted it may be that Begum will not be conclusive of all issues and will need to be considered together with a pre-s.193 duty case. However, it seems likely that the case will be conclusive of an argument which has been raging since the commencement of the Human Rights Act 1998.