Francis v Kensington and Chelsea Royal London Borough Council
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SIMON BROWN,LORD JUSTICE RIX |
| Judgment Date | 19 March 2003 |
| Neutral Citation | [2003] EWCA Civ 443 |
| Docket Number | B2/2003/0543 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 March 2003 |
[2003] EWCA Civ 443
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WANDSWORTH COUNTY COURT
(JUDGE WALKER)
Royal Courts of Justice
Strand
London, WC2
Lord Justice Simon Brown
(Vice President of the Court of Appeal, Civil Division)
Lord Justice Rix
B2/2003/0543
MR N GRUNDY (instructed by Oliver Fisher, London LU8 5EH) appeared on behalf of the Appellant
MR B MCGUIRE (instructed by the Royal Borough of Kensington and Chelsea, W8 7NX) appeared on behalf of the Respondent
This is a second appeal brought by permission of Carnwath LJ on 14 March 2003 from an order of His Honour Judge Walker in the Wandsworth County Court made on 20 February 2003, dismissing the appellant's appeal under section 204A of the Housing Act 1996 ("the 1996 Act").
Section 204A was introduced into the 1996 Act with effect from 30 September 2002 by section 11 of the Homelessness Act 2002. It provides for a statutory appeal to the county court against a local authority's refusal to provide a homeless person with temporary accommodation between a decision made against him on a section 202 internal review and the hearing of a section 204 county court appeal against that review decision.
This is the first case in which this court has had to consider the effect of section 204A. When I say "has had to consider", that is not strictly true. For reasons I shall come to later, the present appeal is in fact moot, its outcome being unable to affect the appellant's present homelessness. We have nevertheless decided to entertain it on the issue of principle arising. This is too good an opportunity to miss to provide the profession and county court judges with some clarification of the new section, not least given the considerable assistance which we have enjoyed from the Bar.
With those few brief introductory remarks, let me at once set out the essential background to this appeal, quoting where appropriate the few directly relevant provisions of the 1996 Act.
The appellant is a man of 25 with a past history of criminality and drug abuse, and with some institutional background. On 26 July 2002 he applied to the respondent borough for accommodation as a homeless person, pursuant to Part VII of the 1996 Act. He was at once provided with temporary accommodation under section 188, which in its material parts reads:
"(1) If the local housing authority have reason to believe that an applicant may be homeless, eligible for assistance and have a priority need they shall secure that accommodation is available for his occupation pending a decision as to the duty (if any) owed to him under the following provisions of this Part.
(3) The duty ceases when the authority's decision is notified to the applicant, even if the applicant requests a review of the decision (see section 2002).
The authority may continue to secure that accommodation is available for the applicant's occupation pending a decision on a review."
The applicant's application for more permanent housing failed. On 13 August 2002 the respondent wrote to notify him of its section 184 decision that he did not have a section 189 priority need for accommodation. It agreed, however, to provide him with temporary accommodation for the duration of a 12-week rehabilitation programme for which he had been accepted. On 4 September 2002 the applicant applied under section 202 for a review of the section 184 decision. Section 202(1) provides that:
"An applicant has the right to request a review of —
(a) any decision of a local housing authority as to his eligibility for assistance."
On 1 November 2002 the respondent notified the applicant of its review decision. It maintained its view that the applicant did not have a priority need. Again, however, the respondent continued to provide him with temporary accommodation.
On 25 November 2002 the appellant appealed under section 204 against the section 202 review decision. Section 204 provides, so far as relevant:
"(1) If an applicant who has requested a review under section 202 —
(a) is dissatisfied with the decision on the review ….
he may appeal to the county court on any point of law arising from the decision ….
…. ….
(3) On appeal the court may make such order confirming, quashing or varying the decision as it thinks fit.
(4) Where the authority were under a duty under section 188, 190 or 200 to secure that accommodation is available for the applicant's occupation, they may continue to secure that accommodation is so available -
(a) during the period for appealing under this section against the authority's decision, and
(b) if an appeal is brought, until the appeal (and any further appeal) is finally determined."
On 11 February 2003 the respondent terminated the appellant's temporary accommodation. On 13 February the appellant's solicitor wrote to the respondent asking for an extension of his temporary accommodation until the hearing of the section 204 appeal and enclosing the grounds of that appeal. On 14 February 2003 the respondent replied to the appellant's solicitor advising him that it had decided not to continue to secure accommodation for the appellant pending his section 204 appeal. That being the decision now under appeal, I shall read the decision letter in full:
"I have carefully considered the discretion to provide accommodation pending the outcome of the appeal in this matter. I have had regard to the guidance to local authorities contained in the reported cases of R v London Borough of Camden ex parte Mohammed, (1998), Ali v Westminster City Council (1998) and R v Brighton & Hove Council, ex parte Ramon Nacion (1999) in the Court of Appeal.
In carrying out that balancing exercise I have considered the merits of your case and the extent to which it can properly be said that the decision was one which was either apparently contrary to the merits of the case or was one which required a very fine balance of judgment which might go either way. Secondly I have considered whether there is any new material, information or argument put before the local authority which could have a real effect upon the decision under review/appeal. Thirdly I have considered your personal circumstances and the consequences to you of an adverse decision on the exercise of this discretion.
I have decided not to continue to secure accommodation for you pending the outcome of your appeal for the following reasons:
1. That while the decision on your homelessness was not completely clear cut neither was it a borderline decision.
2. The fact that you have a previous history of drug use is not sufficiently exceptional. It is the Council's position that your use of drugs is a matter of personal choice and you should not use them. Assistance with drug use is available from the Substance Use Social Work Team at 140 Ladbroke Grove, W10 5ND1. I note that the Council did accommodate you for the duration of your recent drug rehabilitation programme.
3. You are eligible for housing benefit and have shown yourself able to find accommodation in the past. I believe it is possible for you to find a bed and breakfast or hotel accommodation for the time preceding the hearing of any appeal. The council is willing to agree to any appeal being expedited in this respect.
In addition to the above, I have also considered this authority's limited housing resources."
On the same day, 14 February 2003, the appellant appealed to the county court under section 204A of the 1996 Act. This too I must set out in full:
"204A Section 204(4): appeals
(1) This section applies where an applicant has the right to appeal to the county court against a local housing authority's decision on a review.
(2) If the applicant is dissatisfied with a decision by the authority -
(a) not to exercise their power under section 204(4) ('the section 204(4) power') in his case;
(b) to exercise that power for a limited period ending before the final determination by the county court of his appeal under section 204(1) ('the main appeal'); or
(c) to cease exercising that power before that time, he may appeal to the county court against the decision.
(3) An appeal under this section may not be brought after the final determination by the county court of the main appeal.
(4) On an appeal under this section the court -
(a) may order the authority to secure that accommodation is available for the applicant's occupation until the determination of the appeal (or such earlier time as the court may specify); and
(b) shall confirm or quash the decision appealed against,
and in considering whether to confirm or quash the decision the court shall apply the principles applied by the High Court on an application for judicial review.
(5) If the court quashes the decision it may order the authority to exercise the section 204(4) power in the applicant's case for such period as may be specified in the order.
(6) An order under section (5) -
(a) may only be made if the court is satisfied that failure to exercise the section 204(4) power in accordance with the order would substantially prejudice the applicant's ability to pursue the main appeal;
(b) may not specify any period ending after the final determination by the county court of the main appeal."
I am at last able to identify the issue arising on the appeal, an issue which focuses principally upon the requirement in section 204A(4) that "in considering whether to confirm or quash the decision the court shall apply the principles applied by the High Court on an application for judicial review."
It is the appellant's...
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