Cassandra Bubb v London Borough of Wandsworth
| Jurisdiction | England & Wales |
| Judge | The Master of the Rolls,Lord Justice Jackson,Lord Justice Gross |
| Judgment Date | 09 November 2011 |
| Neutral Citation | [2011] EWCA Civ 1285 |
| Docket Number | Case No: B5/2010/1961 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 November 2011 |
[2011] EWCA Civ 1285
The Master of the Rolls
Lord Justice Jackson
and
Lord Justice Gross
Case No: B5/2010/1961
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CROYDON COUNTY COURT
His Honour Judge Ellis
Case No 0CR20464
Royal Courts of Justice
Strand, London, WC2A 2LL
Stephen Knafler QC and Toby Vanhegan (instructed by Blacklaws Davies LLP) for the Appellant
Andrew Arden QC and David Lintott (instructed by Sharpe Pritchard) for the Respondent
Hearing date: 17 October 2011
This is a second appeal which raises one general point and one fact-specific point in relation to a decision of a County Court judge on an appeal brought under section 204 of the Housing Act 1996 as amended ("the 1996 Act"). All references to sections in this judgment are to sections in Part 7 of the 1996 Act, which is concerned with the duties of local housing authorities to provided housing assistance to homeless people.
The relevant factual and legal backgound
The appellant, Cassandra Bubb ("Ms Bubb"), and her son became homeless in early 2008 as a result of domestic violence. On 20 March 2008, she applied to the housing department of the London Borough of Wandsworth ("Wandsworth") for housing assistance. After initially rejecting her application, Wandsworth accepted it on 10 September 2008, determining her to be homeless, eligible, in priority need, and not intentionally homeless (as defined in sections 175, 185, 189 and 191 respectively). As a result, Wandsworth came under a duty to provide her with accommodation – see section 192(2) and (3).
This duty was satisfied for the time being by Wandsworth providing Ms Bubb with temporary accommodation, most recently at 26 Clarkson House, Maysoule Road, London SW11 ("Clarkson House"). Importantly for present purposes, she moved to Clarkson House from her previous temporary accommodation at 25 Edwin Trayfoot Lodge London SW11 ("Trayfoot Lodge") on 16 March 2009.
Wandsworth's case is that on 11 August 2009, a letter ("the 11 August letter") was sent to Clarkson House, offering Ms Bubb more permanent accommodation at 13 Alfreda Court, Alfreda Street, London SW11 ("Alfreda Court"). Ms Bubb, however, maintains that she never received the letter. She relies, inter alia, on the fact that a previous letter ("the 5 August letter"), in virtually identical terms, had been sent a week earlier addressed to her at Trayfoot Lodge. It is common ground that she did not receive that earlier letter as she no longer lived there.
The 11 August letter was headed "Final Offer of Accommodation". It stated that the "[t]he offer [of accommodation at Alfreda Court] will be withdrawn" if Ms Bubb did not contact a specified telephone number of Wandsworth's "Eastern Area Team" by 14 August to enable her to make arrangements to view the property. The letter also set out the weekly outgoings (including rent) on Alfreda Court, and emphasised that "[t]his is a final offer for the purposes of section 193(7) …". It further informed Ms Bubb that, if she thought that Alfreda Court was unsuitable, or wished to refuse it, she had the right to seek a review within 21 days of the offer.
Thereafter, it is clear that there were telephone discussions between Wandsworth representatives, in particular a Building Maintenance Inspector ("BMI"), Mr Phelps-Gardiner, and Ms Bubb, which resulted in Ms Bubb viewing Alfreda Court on 25 August. Although it appears that Ms Bubb expressed satisfaction with Alfreda Court when she visited it, she eventually refused it at a meeting with Julia Sanders, a Housing Registration Officer, on 2 September 2009.
There were then some subsequent communications, after which Wandsworth informed Ms Bubb on 23 September 2009 that its duty to her under Part 7 of the 1996 Act had been discharged, in the light of section 193(7). Almost all of the subsequent correspondence, including Wandsworth's letter that it was relying on section 193(7), were sent to Ms Bubb at Trayfoot Lodge rather than Clarkson House.
Section 193 is concerned with a local housing authority's duty to those applicants, such as Ms Bubb, who are not intentionally homeless. The primary duty is, according to subsection (2), to "secure that accommodation is available to the applicant." Section 193(6) sets out various circumstances in which the duty ceases. Section 193(7) provides that:
The local authority shall also cease to be subject to the duty under this section if the applicant, having been informed of the possible consequences of refusal and of the right to request a review of the suitability of the accommodation, refuses a final offer of accommodation under Part 6."
Under section 202(1)(b), Ms Bubb had the right to "request a review" of "any decision of [Wandsworth] as to what duty (if any) is owed to [her] under sections 190 to 193 and 195 …", which therefore includes the decision that no further duty was owed under section 193(7). Ms Bubb exercised that right, and the "Procedures on a review" in section 203 (and the regulations made thereunder) were implemented. A reviewing officer, described as its "Reviews Manager", Anthony Adelaja, was appointed by Wandsworth to review the case. He carried out an investigation, which resulted in an initial review, which was subsequently quashed, and he then issued a further review in a letter dated 15 March 2010 ("the Review").
The Review is a full document running to sixteen fairly closely typed pages. It principally addresses two issues. The first, which is central to this appeal, is whether Ms Bubb received the 11 August letter. This is, of course, a vital matter, because, if she did not receive the letter, then the information required to be communicated by section 193(7) would not have been given to Ms Bubb, and Wandsworth would not be able to rely on that provision to contend that its duty to her under Part 7 of the 1996 Act had ended. The second main issue which the Review addresses is whether Alfreda Court was indeed suitable accommodation for Ms Bubb, and whether she was justified in refusing it.
After very carefully and very fully reviewing all the evidence and arguments raised by Ms Bubb and Wandsworth, the Review concluded that she did receive the 11 August letter, and that Alfreda Court was suitable for Ms Bubb and that she was not justified in refusing it. That, of course, was a great disappointment to Ms Bubb, but it was not the end of the road, as section 204(1)(a) gives to an applicant who "is dissatisfied with the decision on a review" the right to "appeal to the county court on any point of law arising from the decision". On such an appeal, section 204(3) gives the County Court the power to "make such an order confirming, quashing or varying the decision as it thinks fit."
Ms Bubb's appeal came before His Honour Judge Ellis in the Croydon County Court, and, in a judgment given on 23 July 2010, he dismissed her appeal. There were a number of different grounds of appeal, as the Judge explained in para 5 of his judgment. On most of the grounds, the Judge gave full reasons for dismissing them, but when it came to the one ground which still remains on foot, he was more terse. Having referred to the fact that the 5 August letter was sent to the wrong address and that the 11 August letter "fulfils all the requirements of section 193(7)", the judge said this in para 26:
"The reviewing officer has found as a fact that the mistake with the address on the [5 August letter] was spotted and corrected, and a corrected letter was printed on 11 August, and then hand-delivered to [Ms Bubb's] correct address the same day. The reviewing officer has set out his reasons for so finding, and in my judgment it was a conclusion that he was perfectly entitled to reach."
Ms Bubb applied for permission to appeal against Judge Ellis's decision, and, although her application was refused on the papers, Sedley LJ granted her permission to appeal against the finding that she had received the 11 August letter as described by the Judge in the passage I have just quoted. To put the point more accurately, Sedley LJ gave permission to appeal against the Judge's refusal to quash the finding in the Review that Ms Bubb had received the 11 August letter — and hence to appeal against his refusal to quash Mr Adelaja's conclusion that Wandsworth could rely on section 193(7).
On behalf of Ms Bubb, the first contention of Mr Knafler QC is that the County Court Judge should have determined for himself the relevant facts relating to the issue of whether or not she had received the 11 August letter (and he suggests that in any event the Judge should have received oral evidence). His second contention is that, even if the Judge should have approached the issue on a classic judicial review basis, he was wrong to conclude as he did.
The contention that the Judge should have determined the factual issue himself
The argument that the Judge should have determined the issue of whether or not the 11 August letter was received by Ms Bubb is primarily advanced on the ground that the issue raises, both conceptually and under the 1996 Act, not an assessment involving a value judgment for Wandsworth, but a question of hard fact to be determined by the court for itself. The primary basis for this argument is the decision of the Supreme Court in R(A) v Croydon London Borough Council [2009] UKSC 8, [2009] 1 WLR 2557, where the question concerned the determination of the age of an applicant (because it was necessary to decide whether he was a child) under section 20 of the...
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