Adan v Newham London Borough Council

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD JUSTICE BROOKE
Judgment Date14 December 2001
Neutral Citation[2001] EWCA Civ 1916
Date14 December 2001
Docket NumberCase No: B2/2000/3301

[2001] EWCA Civ 1916

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM BOW COUNTY COURT

HH Judge Laurie

Royal Courts of Justice

Strand,

London, WC2A 2LL

Before:

Lord Justice Brooke

Lady Justice Hale

Mr Justice David Steel

Case No: B2/2000/3301

Fardous Adan
Respondent
and
London Borough of Newham
Appellant
and
Secretary of State for Transport, Local Government and the Regions
Interested Party

Cherie Booth QC and Kerry Bretherton (instructed by the Appellants' Head of Legal Services)

Nigel Pleming QC and Kate Markus (instructed by Eve Wee Solicitors for the Respondent)

Mark Hoskins and Martin Chamberlain (instructed by the Treasury Solicitor for the Interested Party)

SUMMARY

(This summary forms no part of the judgment)

On 6th October 2000, four days after the Human Rights Act 1998 came into force, Judge Laurie, sitting in the Bow County Court, allowed an appeal by Fardous Adan against a decision of a Newham LBC reviewing officer on her homelessness application under Part VII of the Housing Act 1996, and directed that the matter be reviewed again by a reviewing officer who complied with ECHR Article 6 in respect of his independence and impartiality.

The Court of Appeal has unanimously allowed Newham's appeal against the second part of this order (paras 7, 52 and 84). It also noted that Mrs Adan had made a fresh application to Newham under Part VII now that it has been decided that she was habitually resident in this country for social security purposes (para 8). It acceded, however, to a request made by the parties that it should express an opinion on the question whether the relevant statutory procedures complied with the "fair trial" requirements of ECHR Article 6(1), given that appeal lies to the county court only on a point of law. The court was told that a number of other cases had been held up pending its judgment on this appeal.

It was common ground that the local authority reviewing officer did not have the requisite independence and impartiality. It was also common ground that the powers of the county court on an appeal under section 204 of the 1996 Act were akin to those of judicial review exercisable in the High Court. The Court of Appeal was only concerned in this judgment with those cases in which there was a material dispute as to the primary facts. In the other cases the county court's supervisory jurisdiction is sufficient to ensure Article 6(1) compliance (paras 16–17 and 26, 62–67).

All three members of the court agreed that it was not possible to interpret the words "appeal on a point of law" quite simply as if they included an appeal on a point of fact (paras 42, 70, 86). Hale LJ considered, however, that it was possible to interpret those words so as to confer on a county court jurisdiction to decide whether the decision-making process as a whole complied with Article 6 in the particular circumstances of the case, and to decide disputed questions of fact itself if it concluded that this was the only way to achieve compliance with Article 6 (paras 75, 77–79). The majority of the court (Brooke LJ and David Steel J) hold that it was impermissible to interpret the Act in this way (paras 49, 94–95). They held that it was for Parliament, not the courts, to decide who should be the final arbiter of the facts, and that it was not possible to interpret section 204 as if the question whether the statutory procedure, taken as a whole, was Article 6 compliant raised a point of law for the county court itself (paras 50, 94).

All three members of the court agreed that it would be open to a local authority to use its statutory contracting-out powers in such a way that an independent and impartial tribunal might be appointed to conduct the review in those cases where a material dispute as to the facts had to be resolved (paras 9 and 43–45, 76, 94).

LORD JUSTICE BROOKE
1

This is an appeal by the London Borough of Newham ("Newham") against an order made by Judge Laurie in the Bow County Court on 6th October 2000 (and later amended under the slip rule on 9th October 2001) whereby after quashing a decision made on a review of a homelessness application under Part VII of the Housing Act 1996 ("the 1996 Act") he directed that the matter be remitted for a further review decision within 28 days, to be conducted by a different Reviewing Officer (being an officer who in respect of independence and impartiality complies with Article 6 of Schedule (1) of the Human Rights Act 1998). The judge made his direction only four days after that Act came into force, but the difficulty (and importance) of the issue he faced was recognised by all three of the experienced members of the Bar who appeared on the hearing of this appeal more than a year later.

2

The facts of the case are relatively straightforward. Mrs Adan is a Dutch citizen of Somali origin. Her three children, now aged 10, 7 and 5, are also Dutch citizens. Her husband was murdered outside the family home in the Netherlands in March 1996. A murder investigation conducted by the Dutch police was inconclusive. In January 2000 she decided to bring her family to England. She had found it increasingly difficult to live in the Netherlands on her own, and her children wanted to move because they were frightened that their father's murderer would return and kill them. In particular her oldest child, a girl, was suffering from behavioural problems which were affecting her educational development. She had frequent nightmares, and her younger brothers shared her fears. When the family came to England, Mrs Adan terminated her tenancy and brought all the family's possessions with her. They lived at first with her sister-in-law and her six children in a three-bedroomed property in Stratford. Her sister-in-law then required them to leave, because her home was so crowded, and Mrs Adan turned to Newham to seek housing assistance.

3

Section 185(1) of the 1996 Act provides that a person is not eligible for assistance under Part VII of the Act if he is a person from abroad who is ineligible for housing assistance. The effect of regulation 4(a) of the Homelessness Regulations 1996 is that Mrs Adan had to show that she was habitually resident in this country (or the Republic of Ireland) in order to be eligible. Her application was initially rejected by a Newham housing officer in March 2000 on these grounds. She was told that she was not habitually resident in this country because she had made no arrangements for accommodation or work here and she was in receipt of social security payments from the Netherlands. Officers had looked at the circumstances of her case, and had decided that she did not have a settled and viable pattern of living here as a resident.

4

She exercised her right to a review of this decision pursuant to section 202 of the Act, and the review was conducted by Mr Paul Clark, who is Newham's Appeal Officer. On 23rd June 2000 he gave his reasons for declining to alter the original decision. After setting out the facts (which he took from her history of events) at some length and summarising the effect of the submissions he had received from her solicitors, he told her that although she had had difficulties in the Netherlands, there was no evidence that she planned to settle in this country. She did not make any inquiries about accommodation in this country, she did not learn English and she remained financially dependant on the Dutch authorities (who were paying her a widow's pension). He had therefore decided that she was not habitually resident in this country.

5

Mrs Adan then exercised her right of appeal to the county court pursuant to section 204(1) of the Act which gives a dissatisfied applicant a right to appeal "on any point of law arising from the decision or, as the case may be, the original decision". She did not suggest in her grounds of appeal that Mr Clark had got any of the underlying facts wrong. Her complaint was that he had taken into account irrelevant factors and failed to take into account relevant factors; that he had not properly applied the correct legal test or conducted a proper balancing exercise of the relevant factors; and that his decision, in all the circumstances, was irrational. Her appeal was supported by a short witness statement and by a skeleton argument which deployed all the relevant evidence and concluded that in all the circumstances it was irrational for Mr Clark to say that there was no evidence that she had planned to settle in the United Kingdom.

6

This argument was sufficient to persuade Judge Laurie to allow the appeal. He said "It is a statement of fact that there is no evidence, but there is tonnes of evidence that she planned to do just that" (viz settle in the United Kingdom). Newham does not now challenge his decision to allow the appeal and quash Mr Clark's determination on those grounds. What is in issue on this appeal is his direction that Newham's further review should be conducted by a different reviewing officer who possessed the appropriate impartiality and independence required by Article 6 of the European Convention on Human Rights ("ECHR"). The judge had expressed concern about the compatibility of the normal review procedure with that article of the Convention, and decided that he needed to spell out in his order what the Convention required.

7

I am satisfied that he did not have power to make this further direction. Section 204 of the 1996 Act specifies the powers given to the county court on these appeals, and because this is a public law matter, as soon as the original determination was quashed Newham was obliged to review the matter again. By now the Human Rights Act was in force. As a public authority...

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