London Borough of Tower Hamlets v Runa Begum
| Jurisdiction | England & Wales |
| Judge | Lord Justice Laws,Lord Justice Dyson |
| Judgment Date | 06 March 2002 |
| Neutral Citation | [2002] EWCA Civ 239 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B2/2001/2878 |
| Date | 06 March 2002 |
[2002] EWCA Civ 239
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BOW COUNTY COURT
Royal Courts of Justice
Strand,
London, WC2A 2LL
the Lord Chief Justice of England and Wales
Lord Justice Laws and
Lord Justice Dyson
Case No: B2/2001/2878
Ashley Underwood QC and Kelvin Rutledge (instructed by Tower Hamlets Legal Services) for the appellant
Paul Morgan QC and Steven Woolf (instructed by Messrs Maxim) for the respondent
INTRODUCTORY
As is well known Article 6(1) of the European Convention on Human Rights ("ECHR") provides in part:
"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law,"
This appeal has required the court to look again at the scope of the expression "civil rights" in the context of the homeless persons legislation. In particular, we have had to examine the impact of the statutory setting in which a civil right is said to arise upon the nature and quality of independent adjudication required to satisfy Article 6(1).
The appeal is brought against the decision of His Honour Judge Roberts given in the Bow County Court on 21st December 2001, when he allowed the respondent's appeal under s.204(1) of the Housing Act 1996 ("HA") against the determination of Mrs Hayes, an officer of the appellant local authority, to the effect that certain premises in Tower Hamlets were suitable for the appellant and her family, and that it would have been reasonable for her to accept that accommodation. Permission to appeal was granted by Schiemann LJ on 10 th January 2002.
At the invitation of the respondent and without objection from the appellant local authority the judge determined the appeal before him upon a preliminary issue, namely whether the procedure for internal review of a local authority's decision relating to its homelessness functions, provided for by HA s.202, is compliant with ECHR Article 6(1). The judge held that on facts such as those of the present case it was not, considering he was bound to arrive at that conclusion in light of what had been said in this court only seven days before in Adan v London Borough of Newham [2001] EWCA Civ 1916.
THE LEGISLATION
I have already set out ECHR Article 6(1). I need not cite any of the provisions of the Human Rights Act 1998 (" HRA"). It is obvious that the local authority respondent is a "public authority" within s.6(3) of the Act of 1998. Accordingly by s.6(1) it may not "act in a way which is incompatible with a Convention right". Thus its procedures must comply with the Convention standards so far as they touch Convention rights; and it is the court's duty, also by s.6(1), to see that they do so.
The homeless persons legislation is now contained in HA Part VII. I should set out these following provisions.
"175(1) A person is homeless if he has no accommodation available for his occupation, in the United Kingdom or elsewhere…
(2) A person is also homeless if he has accommodation but —
(a) he cannot secure entry to it…
(3) A person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for him to continue to occupy….
177(2) In determining whether it would be, or would have been, reasonable for a person to continue to occupy accommodation, regard may be had to the general circumstances prevailing in relation to housing in the district of the local housing authority to whom he has applied for accommodation or for assistance in obtaining accommodation…
179(1) Every local housing authority shall secure that advice and information about homelessness, and the prevention of homelessness, is available free of charge to any person in their district…
182(1) In the exercise of their functions relating to homelessness and the prevention of homelessness, a local housing authority or social services authority shall have regard to such guidance as may from time to time be given by the Secretary of State…
184(2) If the local housing authority have reason to believe that an applicant may be homeless or threatened with homelessness, they shall make such inquiries as are necessary to satisfy themselves—
(a) whether he is eligible for assistance, and
(b) If so, whether any duty, and if so what duty, is owed to him under the following provisions of this Part.
(2) They may also make inquiries whether he has a local connection with the district of another local housing authority in England, Wales or Scotland.
(3) On completing their inquiries the authority shall notify the applicant of their decision and, so far as any issue is decided against his interests, inform him of the reasons for their decision…
188(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….
189(1) The following have a priority need for accommodation –
(a) a pregnant woman or a person with whom she resides or might reasonably be expected to reside;
(b) a person with whom dependent children reside or might reasonably be expected to reside;
(c) a person who is vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason, or with whom such a person resides or might reasonably be expected to reside;
(d) a person who is homeless or threatened with homelessness as a result of an emergency such as flood, fire or other disaster…
191(1) A person becomes homeless intentionally if he deliberately does or fails to do anything in consequence of which he ceases to occupy accommodation which is available for his occupation and which it would have been reasonable for him to continue to occupy…
193(1) This section applies where the local authority are satisfied that an applicant is homeless, eligible for assistance and has a priority need, and are not satisfied that he became homeless intentionally.
This section has effect subject to section 197 (duty where other suitable accommodation available).
(2) Unless the authority refer the application to another local housing authority (see section 198), they shall secure that accommodation is available for occupation by the applicant…
(5) The local housing authority shall cease to be subject to the duty under this section if the applicant, having been informed by the authority of the possible consequence of refusal, refuses an offer of accommodation which the authority are satisfied is suitable for him and the authority notify him that they regard themselves as having discharged their duty under this section….
197(1) This section applies if the local housing authority would be under a duty under this Part —
(a) to secure that accommodation is available for occupation by an applicant, or
(b) to secure that accommodation does not cease to be available for his occupation,
but are satisfied that other suitable accommodation is available for occupation by him in their district.
(2) In that case, their duty is to provide the applicant with such advice and assistance as the authority consider is reasonably required to enable him to secure such accommodation…
198(1) If the local housing authority would be subject to the duty under section 193 (accommodation for those with priority need who are not homeless intentionally) but consider that the conditions are met for referral of the case to another local housing authority, they may notify that other authority of their opinion.
The authority need not consider under section 197 whether other suitable accommodation is available before proceeding under this section.
(2) The conditions for referral of the case to another authority are met if—
(a) neither the applicant nor any person who might reasonably be expected to reside with him has a local connection with the district of the authority to whom his application was made,
(b) the applicant or person who might reasonably be expected to reside with him has a local connection with the district of the other authority, and
(c) neither the applicant nor any person who might reasonably be expected to reside with him will run the risk of domestic violence in that other district…
202(1) An applicant has the right to request a review of—
…
(b) any decision of a local housing authority as to what duty (if any) is owed to him under sections 190 to 193 and 195 to 197 (duties to persons found to be homeless or threatened with homelessness),…
(f) any decision of a local housing authority as to the suitability of accommodation offered to him in discharge of their duty under any of the provisions mentioned in paragraph (b)…
(4) On a request being duly made to them, the authority or authorities concerned shall review their decision.
203(1) The Secretary of State may make provision by regulations as to the procedure to be followed in connection with a review under section 202.
Nothing in the following provisions affects the generality of this power.
(2) Provision may be made by regulations—
(a) requiring the decision on review to be made by a person of appropriate seniority who was not involved in the original decision, and
(b) as to the circumstances in which the applicant is entitled to an oral hearing, and whether and by whom he may be represented at such a hearing.
(3) The authority, or as the case may be either of the authorities, concerned shall notify the applicant of the decision on...
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