Gerald James v Hertsmere Borough Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Peter Jackson,Lord Justice Haddon-Cave,Lord Justice McCombe |
| Judgment Date | 02 April 2020 |
| Neutral Citation | [2020] EWCA Civ 489 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B5/2019/0794 |
| Date | 02 April 2020 |
[2020] EWCA Civ 489
Lord Justice McCombe
Lord Justice Peter Jackson
and
Lord Justice Haddon-Cave
Case No: B5/2019/0794
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
Recorder Richard Methuen QC
E40CL234
Royal Courts of Justice
Strand, London, WC2A 2LL
Timothy Straker QC, Toby Vanhegan and Nick Bano (instructed by ARKrights Solicitors) for the Appellant
Ranjit Bhose QC and Riccardo Calzavara (instructed by Hertsmere Borough Council) for the Respondent
Hearing date: 17 March 2020
Approved Judgment
This appeal concerns the scope of the jurisdiction of the county court when hearing a statutory appeal from a decision under s. 204 of the Housing Act 1996, and the lawfulness in this case of a contracted-out review decision under s. 202 of that Act.
The background
In November 2017, the Appellant, Mr Gerald James, applied to Hertsmere Borough Council for accommodation on the basis that he was homeless. The Council made inquiries under s. 184 Housing Act 1996 and on 29 January 2018, it notified him of its decision that he was not ‘vulnerable’ and therefore not in priority need within the terms of s. 189 of the Act; also that he was intentionally homeless. Accordingly the Council had no duty under s. 193 to house him, but only a duty to give advice and assistance. On 6 February 2018, the Appellant requested a review under s. 202 of the priority need decision and on the following day the Council agreed to carry out a review. By a letter of 24 August 2018, he was informed pursuant to s. 203 of the outcome of the review, which confirmed the decision that he was not in priority need.
Where an authority carries out a statutory review it must be must be carried out within 56 days unless a longer period is agreed between the applicant and the reviewer: regulation 9 of the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999, which was applicable in this case, and regulation 9 of its successor, the Homelessness (Review Procedure etc.) Regulations 2018.
In the present case, the review was not completed for 28 weeks. This was no doubt in part because the reviewer needed to consider further medical evidence from more than one source. As it transpired, the fact that the review was not completed within 56 days (so by 5 April 2018) gave rise to one of the issues on this appeal. The explanation for this lies in events surrounding the contracting out process undertaken by this Council, to which I now turn.
The s. 202 homelessness review function is one that may be contracted out under the power contained in s. 70 of the Deregulation and Contracting Out Act 1994. The effect of contracting out is that the person with whom the local authority contracts is authorised to exercise the relevant function of the authority. The legal authority to exercise the public function is therefore conferred by a private law contract, albeit one that is subject to some statutory constraint: for example s. 69(5) and s. 70(4) of the 1994 Act limit the length of a contracted-out authorisation to 10 years and provide that authorisation can be revoked by the authority at any time.
In the present case the Council contracted out its homelessness review function to a private sector property management organisation called Residential Management Group Limited (“RMG”) by means of a contract signed on 23 August 2017 by the Council's Chief Executive, Donald Graham.
The following elements of the contract are relevant:
(1) The preamble recited that the Council wished to commission RMG to provide a homelessness review service in accordance with the Conditions, the Service Specification, Schedules and any Appendices. The Service Specification included this sentence:
“RMG will carry out section 202 Housing Act 1996 reviews selected by Hertsmere Quality and Reviews team over a 12 month period. Hertsmere will acknowledge the requests for review and immediately send the referral by email to RMG Ltd.”
The syntactical ambiguity in the first sentence will be noted. The Appellant argues that in order to fall within the terms of the contract, and hence be authorised, reviews must be carried out and completed within 12 months, while the Council argues that reviews selected during the 12 month period must be carried out to completion and will be authorised even if that happens after the 12 months have expired.
(2) The contract contains a number of definitions. These include that the Commencement Date shall be the date on which RMG started to supply services, in fact 18 September 2017. The expression “Term”, which appears at a number of points in the contract, was defined as “the period the service shall be provided by the Service Provider from the commencement of the Service to the completion of the work required under the Contract”.
(3) Clause 3.1 defines the “Contract Term” as
“the period from the commencement date to 11 April 2017 unless terminated in accordance with Clause 15 of this agreement. The parties may by agreement extend the Contract Term by periods of up to 12 months at a time, subject to a maximum including the contract term of 3 years.”
It is common ground that this should be read as if 11 April 2017 read 11 April 2018. Accordingly the initial contract term was from 18 September 2017 to 11 April 2018. It will be recalled that the 56 day review period in the Appellant's case ended on 5 April 2018 but the review was not completed until August 2018. The review process therefore straddled the period before and after the initial contract term.
(4) Clause 3.3 states that “It is anticipated that the value of work will not exceed £25,000 but that is entirely within the Authorised Officer's discretion”.
(5) Clause 4.1 provides that “During the Term” RMG was to devote such time, attention and abilities to the provision of the Services as the contract required.
(6) Clause 4.9 provides that RMG was required to assist the Council in defending any statutory appeal or judicial review proceedings in respect of the review decisions and would receive a fixed fee for doing so.
(7) Clause 6.1 entitles RMG to payment for services rendered in accordance with a schedule of fixed fees that specifies the cost per unit of completed work.
(8) Clause 7.1 concerns the Authorised Officer, who is the person named in the Contract “or such other person nominated in writing by the Council from time to time to act in the name of the Council for the purposes of the Contract”. By Clause 7.3 the Authorised Officer was entitled to monitor the performance of the Services. The officer named in the Contract was the Housing Operations Manager, Mr Idris Kargbo. He was in theory answerable to the Housing Services Manager, who was answerable to the Director of Environment, whom was in turn answerable to the Chief Executive. However, by March 2018 neither intermediate post was filled.
(9) Clause 14 provides for the termination of the contract for cause and Clause 15 provides for the consequences of termination. These include the return of work-in-progress and a settling up. Clause 15.3 provides:
“The termination of the Contract, howsoever arising, shall be without prejudice to any rights or obligations theretofore accrued or to any provisions which are expressed to be performed after or to survive the termination of this Contract.”
(10) Clause 20 provides that:
“A variation to this Contract (including to the scope and nature of the Services) shall only be valid if it has been agreed in writing and signed by both parties.”
The contract contains a requirement for an act to be recorded in writing in nine other miscellaneous contexts, though not, as has been seen, at Clause 3.1 concerning extensions.
The appeal to the county court
On 15 September 2018, the Appellant appealed to the county court under s. 204. The Council filed evidence in response from three witnesses: Mr Kargbo, Mr Graham (Chief Executive), and Councillor Morris Bright (Leader of the Council). Their evidence was to this effect:
(1) Mr Kargbo: “As Authorised Officer under that contract, in/around March 2018 I verbally agreed an extension with RMG for a further 12 months commencing 12 th April 2018.”
(2) Mr Graham: Responsibility for the contract had fallen directly on him in the absence of intermediate officers. “It was always my intention that Idris Kargbo would perform all of my functions in relation to the agreement including, giv[en] his performance monitoring role, taking the decision on behalf of the Council as to whether it should be extended.” For the avoidance of doubt, his statement of 22 November 2018 formally confirmed his approval of the agreement he signed and of its extension for a year by Mr Kargbo.
(3) Councillor Bright: Although he considered that the extension of the contract to have been in order, on 22 November 2018 he ratified both the initial contracting out to RMG until 11 April 2018 and the extension until 11 April 2019. This decision was published on 3 December 2018 and became effective and binding so far as the Council was concerned from 11 December 2018.
In the county court the Appellant advanced three grounds of appeal. The second and third grounds concerned the public sector equality duty and the adequacy of the consideration of the issue of vulnerability. Those grounds were dismissed by the Recorder and they are not pursued on this appeal, which is concerned only with the first ground of appeal. This alleges that the review decision in August 2018 was of no effect...
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