London Borough of Wandsworth v Phillip Allison

JurisdictionEngland & Wales
JudgeLord Justice Wall,Lord Justice Wilson,Lady Justice Arden
Judgment Date15 April 2008
Neutral Citation[2008] EWCA Civ 354
CourtCourt of Appeal (Civil Division)
Date15 April 2008
Docket NumberCase No: B5/2007/1195

[2008] EWCA Civ 354




the late Recorder Robin Spon-Smith

sitting in the Wandsworth County Court on 31 May 2007

Royal Courts of Justice

Strand, London, WC2A 2LL


Lady Justice Arden

Lord Justice Wall and

Lord Justice Wilson

Case No: B5/2007/1195

London Borough Of Wandsworth
Phillip Allison

Mr. Allison neither attended nor was he represented at the hearing of the appeal

Mr David Lintott (instructed by Messrs Ashford —Solicitors) for the Appellant

Hearing date : 7th March 2008

Lord Justice Wall



With permission granted by Jacob LJ on 16 July 2007, the London Borough of Wandsworth (Wandsworth) appeals against an order made by the late Recorder Robin Spon-Smith sitting in the Wandsworth County Court on 31 May 2007. By his order, the Recorder allowed an appeal by Mr Philip Allison under section 204 of the Housing Act 1996 (the Act) against a determination by Wandsworth that he was not in priority need for housing within the provisions of section 189(1)(c) of the Act. As will be immediately apparent, this is a second appeal, and the provisions of section 55(1) of the Access to Justice Act apply to it.


The form this judgment will take will be to set out, under separate headings, the material (including the relevant authorities) available to the Recorder. This exercise, whilst perhaps somewhat lengthy, will, in my judgment, clearly explain the outcome of this appeal without the need for any detailed analysis.


Before embarking on that exercise, however, I need to point out that an unusual feature of the case is that Mr. Allison neither attended, nor was he represented at, the hearing of the appeal. Correspondence from his solicitors made it clear that he was abroad, and that as a consequence, his public funding certificate had been discharged on 20 January 2008. Wandsworth, nonetheless, urged us to hear the appeal, and we duly did so. At the conclusion of the argument, we reserved judgment.


We are grateful to Mr. David Lintott, counsel for Wandsworth, both for his clear and cogent submissions, and for responding to a request from Arden LJ to set out the arguments that Mr. Allison may have wished to raise in this court had he been represented by counsel. As it happened, we also had a skeleton argument prepared for this court by counsel for Mr. Allison prior to the discharge of his public funding certificate. I will make further reference to this document later.

The essential and undisputed facts


I take these largely from the helpful chronology prepared by counsel for Wandsworth in the county court. Mr. Allison is 57. He arrived from the Philippines on 7 September 2006, and was admitted to the Chelsea and Westminster Hospital (the Hospital) on the same day with suspected deep vein thrombosis (DVT). He had been in the United Kingdom before, and Wandsworth had previously refused an application for priority housing for him. We are not, however, concerned in any way with the previous application.


On 12 September 2006, Mr Allison applied for emergency housing under Part VII of the Act. He was both interviewed and completed a medical assessment form on the same day. On 19 September 2006 his application was rejected by Wandsworth. Following a review, during the course of which the papers were submitted to Wandsworth's Medical Adviser, Dr. John W. Keen, a decision letter dated 19 October 2006 under section 184(3) of the 1996 Act was written to Mr. Allison stating that, in Wandsworth's view, Mr. Allison was not in priority need of housing within section 189 of the Act. Following a further review, during which the papers were submitted for a second time to Dr. Keen, Wandsworth confirmed its decision, initially in a “minded to” letter dated 17 January 2007, and finally in a decision dated 30 January 2007. It is the latter which formed the basis of Mr. Allison's appeal under section 204 of the 1996 Act.

The legislation


The terms of Part VII of the Act, which deals with homelessness, are very familiar. Mr. Lintott produced them for us in the form in which they are published (complete with a detailed commentary) in the Housing Review. This comprised a substantial bundle. However, with the exception of section 189(1)(c) itself, it does not seem to me to be necessary to set out the different sections in detail, and for my part I am prepared to adopt the summary contained in Mr. Lintott's skeleton argument.


Section 175 of the Act provides that a person is homeless if he has no accommodation that he is entitled to occupy and that it is reasonable for him to occupy. Section 184 provides that where a local housing authority have reason to believe an applicant is homeless they must make enquiries to satisfy themselves whether a duty, and if so what duty, is owed to him. On completing their enquiries the authority must notify him of their decision (section 184(3)). The authority must secure that accommodation is available for the applicant where it is satisfied that an applicant is homeless, eligible for assistance, has a priority need and has not become homeless intentionally (section 193).


Thus, as applicable to the instant case, section 189(1)(c) provides that:

189 Priority need for accommodation

(1) The following have a priority need for accommodation—

(c) a person who is vulnerable as a result of physical disability or other special reason.


The decision as to whether or not a person falls with section 189(1)(c) of the Act is one for the local housing authority to make. However, section 202(1) of the Act gives a person in Mr. Allison's position the right to request a review of Wandsworth's decision, and section 204 provides a right of appeal to the county court on point of law if an applicant who has requested a review under section 202 is dissatisfied with the decision on the review.

The relevant authorities


As the Recorder recognised, the jurisdiction exercisable by the county court under section 204 of the 1996 Act is analogous to, albeit somewhat wider than, that exercised by the Administrative Court on an application for judicial review: —see, for example, the decision of this court in Nipa Begum v L.B. Tower Hamlets [2000] 1 WLR 306 at 313, in which Auld LJ summarised what is meant by an appeal on a point of law in this context in the following words:-

It is that “a point of law” includes not only matters of legal interpretation but also the full range of issues which would otherwise be the subject of an application to the High Court for judicial review, such as procedural error and questions of vires, to which I add, also of irrationality and (in) adequacy of reasons. This broad construction of the provision is supported by the somewhat wider or more immediate power to vary given to the county court by section 204(3) than the High Court normally exercises in its judicial review jurisdiction.


Furthermore, as Lord Brightman pointed out in R v L.B. Hillingdon ex p. Puhlhofer [1986] 1 A.C. 484 at 518 ( Puhlhofer) the local authority are the arbiters of fact in such cases. Puhlhofer was a case decided under the Housing (Homeless Persons) Act 1977, but Lord Brightman's words apply equally to Wandsworth's duty to Mr. Allison under section 189(1)(c) of the Act:-

Parliament intended the local authority to be the judge of fact. The Act abounds with the formula when, or if the housing authority are satisfied as to this, or that, or have reason to believe this, or that. Although the action or inaction of a local authority is clearly susceptible to judicial review where they have misconstrued the Act, or abused their powers or otherwise acted perversely, I think that great restraint should be exercised in giving leave to proceed by judicial review. The plight of the homeless is a desperate one, and the plight of the applicants in the present case commands the deepest sympathy. But it is not, in my opinion, appropriate that the remedy of judicial review, which is a discretionary remedy, should be made use of to monitor the actions of local authorities under the Act save in the exceptional case. The ground upon which the courts will review the exercise of an administrative discretion is abuse of power —e.g. bad faith, a mistake in construing the limits of the power, a procedural irregularity, or unreasonableness in theWednesbury sense —unreasonableness verging on an absurdity: see the speech of Lord Scarman in Reg. v. Secretary of State for the Environment, Ex parte Nottinghamshire County Council [1986] A.C. 240, 247–248. Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely.


As Mr. Lintott pointed out, the issue in the instant case was whether or not the applicant was in priority need: in particular, whether he was vulnerable within the class set out at section 189(1)(c). I also agree with Mr. Lintott –a point also accepted by the Recorder —that the classic formulation of the meaning of “vulnerable” within section 189(1)(c) of the Act is in R v Camden LBC ex parte Pereira (1999) 31 HLR 317 at 330 ( Pereira) in the judgment of Hobhouse LJ namely:-

The Council must consider whether Mr Pereira is a person who is vulnerable as a result of mental illness or handicap or for...

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