R Daniel Faulkner v The Secretary of State for Justice and Another
| Jurisdiction | England & Wales |
| Judge | Wilson LJJ,Sedley,Hooper |
| Judgment Date | 31 March 2011 |
| Neutral Citation | [2010] EWCA Civ 1434,[2010] EWCA Civ 1195,[2011] EWCA Civ 355 |
| Docket Number | Case No: B5/2010/0504,Case No: B5/2010/0504, B5/2010/0983 and B5/2010/1540 BM90166A,Case No: C1/2009/1543,C1/2009/1543 |
| Court | Court of Appeal (Civil Division) |
| Date | 31 March 2011 |
[2010] EWCA Civ 1195
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BIRMINGHAM COUNTY COURT
His Honour Judge Worster
Before: Lord Justice Maurice Kay
Case No: B5/2010/0504
Mr James Stark (instructed by Community Law Partnership) appeared on behalf of the Appellant
Miss Emily Orme (instructed by Birmingham City Council) appeared on behalf of the Respondent.
Lord Justice Maurice Kay:
This is a renewed application for permission to appeal. Lloyd LJ granted permission on ground 1, a matter of general importance. I need say no more about that. The renewal relates to grounds 2 to 5. I remind myself that this is a second appeal, to which the second appeal criteria apply.
The background to the case is that the council sought to discharge its duty to house the applicant and her family by offering her a three bedroomed property, 17 Crosby Close. She sought a review and a homeless review officer rejected her further submissions in a decision letter dated 14 August 2009. She exercised her right of appeal to the county court, and on 6 January 2010 HHJ Worster dismissed her appeal. That is, of course, an appeal by way of review under the statute. It is against that rejection that she now appeals with leave and seeks permission to appeal on further grounds.
There is nothing wrong with the allocated premises as premises; the issue is as to the location in relation to the location of the school attended by the oldest of the applicant's three children. That eldest child, Glodi, is six, almost seven. Sadly, he suffers from an autistic spectrum disorder. There are younger children, who are aged three years and a baby of nine months at the time of the hearing in the County Court.
The ground upon which permission has been granted is a legal point relating to whether a right to be heard orally is a right to be heard in person or whether it can be limited to a telephone conversation. The grounds which are the subject of this renewed application are concerned with the merits of the review by the Homeless Review Officer and the judgment of the judge in the County Court.
As formulated, there are five grounds of appeal, and I am concerned with grounds 2 to There is inevitably an overlap between them. I have already indicated that I do not propose to grant permission in relation to any of these grounds. I can explain why in headline terms, before saying a little more of the detail. In my judgment, the reliance which Mr Stark places on his critique of the Homeless Review Officer's decision results from an overzealous analysis of its terms. It is well known not only in relation to housing decisions made within a council such as this including the review decision, but elsewhere in relation to judicial decisions —for example, in an employment tribunal —that it is inappropriate to take a fine toothcomb approach to the minutiae of a decision letter. In my judgment, Mr Stark's ably constructed critique is the result of a fine toothcomb approach.
In ground 2 he asserts that the officer failed to take into account the particular difficulties for the appellant in travelling with Glodi on a bus journey with her other two small children at rush hour and the effects of the distress caused on such a journey upon the appellant and upon her relationship with her autistic son. I do not say that each and every word in that ground as formulated has received detailed treatment in the decision letter. What I do say about that ground, and the same applies to grounds 3 and 4, is that, on any fair construction of the letter as a whole, the officer did take into account the case which was before her, the representations that had been made and the difficulties which undoubtedly exist. It is not incumbent upon an officer to address in detail each and every point that has been made at every stage; the important thing is whether, reading the decision letter as a whole (and here I use Mr Stark's words), the officer has reached rational conclusions addressing the applicant's points.
Ground 2 is dealt with by the judge, starting at paragraph 22 of his thorough judgment. In my view, it was a permissible consideration of the points that were being made to him on review. It was then known as ground 1.
Ground 3 in this court is concerned with the practical difficulties of getting on and off a bus with Glodi and two small children and the associated risks. It is dealt with in paragraph 29 and following in the judgment. Again, it seems to me that on a fair appraisal that was a sufficient consideration of the issues.
Ground 4 asserts that the officer took into account an irrelevant consideration that the applicant might use public transport for other purposes, such as shopping, ignoring the fact that such journeys are not taken with Glodi. There is an overlap here with the successfully permitted ground 1, because reliance is placed in part on what transpired in the telephone conversation, in the course of which the applicant appears to have said that, apart from taking Glodi to school, she would travel to other places with him by taxi and, apart from those possibilities she did not take him anywhere. The officer did not say she disbelieved that comment, but there is no reason to suppose that she did not have it in mind and did not come to what seems to me to be the obvious conclusion that circumstances would arise from time to time when Glodi was taken out otherwise than to school or by taxi. The matter is dealt with by the judge in paragraph 26 and following. The mere fact that every single point is not dealt with and every single piece of scepticism set out does not seem to me to vitiate what is, on an overall view, a permissible and proper decision letter.
That brings me to ground 5, which is to the effect that the judge failed to take the two-stage approach illustrated by Slater v Lewisham London Borough Council [2006] EWCA Civ 394. Mr Stark submits that at no stage had the officer in her letter sufficiently distinguished between the two stages of the suitability of the property and the reasonableness of the applicant accepting it. Plainly, the second-stage requires consideration of the applicant's circumstances in their entirety. In my judgment, there is no reason to suppose that either the officer or the judge lost sight of that. The relevant passage in the decision letter is at page 47 in the bundle: the three paragraphs beginning “Taking into account all the evidence available to me, I have concluded…” In those paragraphs it seems to me that the officer sufficiently deals with both stages and, reading the letter as a whole, I am entirely convinced that she took into account not only the suitability of the property but the question of reasonableness, including reasonableness from the perspective of the applicant. To take a contrary view would be, again, to impose too high a standard on the drafting of such letters.
For all these reasons, I conclude that the applicant cannot satisfy the test for permission in a second appeal. I agree with Lloyd LJ about grounds 2 to 5.
One further issue remains. There is a document in the bundle before me at pages 142 and 143 which is a typed note of the conversation on the telephone which is at the heart of ground 1. It was not before the judge; it has come to light since then. It may not be a verbatim contemporaneous record; it is more likely that it is compiled from a note, and it may be less than comprehensive. However, it seems to me that it is material properly considered on this application today and I have taken it into account. I also grant permission for it to be adduced and relied upon at the hearing of the substantive appeal.
Order: Application refused
[2010] EWCA Civ 1434
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
QUEEN'S BENCH DIVISION
Blair J
Before: Lord Justice Sedley
Lord Justice Hooper
and
Lord Justice Wilson
Case No: C1/2009/1543
CO/9656/2008
Mr H. Southey QC and Mr J Bunting for the Appellant
Mr S. Kovats QC for the first Respondent
Mr Sam Grodzinski for the second Respondent
Hearing date: 23 rd April 2010
Lord Justice Hooper:
Daniel Faulkner (“Faulkner”), a serving prisoner at the material time, seeks damages for what is said to be an infringement of his rights under Article 5(4) of the European Convention on Human Rights (“ECHR”).
Article 5(4) provides:
Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
It is submitted on behalf of the appellant that his rights under Article 5(4) have been violated by the now admitted failure to conduct a prompt Parole Board review. It is not suggested, and could not be, that his detention became unlawful in the absence of a speedy review.
In an ex tempore judgment Blair J rejected the claim, [2009] EWHC 1607 (Admin). Faulkner appeals his decision. The perceived complexity of the issues raised by the appeal is evidenced by...
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