R v The Mayor and Burgesses of the London Borough of Ealing ex parte Reuben Uche Parkinson
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE LAWS |
| Judgment Date | 19 October 1995 |
| Judgment citation (vLex) | [1995] EWHC J1019-6 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 19 October 1995 |
| Docket Number | CO 2418-94 |
[1995] EWHC J1019-6
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(CROWN OFFICE LIST)
Before: Mr Justice Laws
CO 2418-94
MR R LATHAM (Instructed by Marian Chester, Network for the Handicapped, Princeton St, London WC1R 4BB) appeared on behalf of the Appellant.
MISS L GIOVANNETTI for MR A UNDERWOOD (Instructed by Disability Law Centre, Bedford Row, London WC1R 4CR) appeared on behalf of the Respondent.
(As Approved)
Thursday, 19th October 1995
This application for judicial review, brought pursuant to leave granted by Latham J, raises questions (as have many others before it) as to the nature of a local authority's responsibilities under the Housing Act 1985 once they have accepted under s.64 that an applicant is homeless, in priority need, and has not become homeless intentionally. In particular it requires me to revisit the issue, most recently addressed by the Court of Appeal in R v Northavon DC ex p. Palmer (unrep.13/7/95), where is the dividing line between public and private law in the field of the homeless persons legislation.
I may first describe the relevant facts. The whole history is lengthy, but it is unnecessary to rehearse every detail and the following summary suffices for the purposes of the issue I must decide. The applicant is married with 4 children. Most unhappily the youngest 3 are severely disabled. They are Rachel (born 2nd May 1984) Rosalind (born 10th March 1987), and Reuben (born 6th December 1992). All 3 have been diagnosed as suffering from cerebral palsy and spastic quadriplegia. All are doubly incontinent. They require (or in Reuben's case, no doubt, will require) the use of electrically-powered wheelchairs. Variously they suffer from other disabilities, but it will be sufficiently obvious from these few comments that the condition of each of them is very severe indeed.
On 1st August 1989 the applicant applied to the respondent council for accommodation for himself and his family under Part III of the Housing Act 1985 ("the Act"). The next day, 2nd August, they were housed in private accommodation at 134 Horsenden Lane South, Perivale under a licence agreement. On 27th September 1989 the respondent prepared (I use the word advisedly) a letter accepting, under s.64 of the Act, that the applicant was homeless, in priority need, and had not become homeless intentionally. It seems that that letter was not sent to the applicant until early March 1991: The respondent says that though it had been written in September 1989, in fact there was a question whether the applicant was intentionally homeless which was not resolved until February 1991; only after that was the letter sent, though its date was not altered. There is thus a dispute between the parties whether the decision under s.64 is to be attributed to September 1989 or March 1991. However, for reasons which I will explain, it is not necessary to resolve the dispute.
The effect of the s.64 decision (whenever it was made) was of course to impose on the respondent the duty prescribed by s.65(2), namely to secure that accommodation become available for the applicant's occupation. The accommodation had to be suitable. It is convenient at this stage to set out s.69(1) of the Act which as will appear is material to the critical issue in the litigation. It provides:
"A local housing authority may perform any duty under s.65…. To secure that accommodation becomes available for the occupation of a person-
(a) by making available suitable accommodation held by them under Part II (Provision of Housing) or any enactment, or
(b) by securing he obtains suitable accommodation from some other person, or
(c) by giving him such advice and assistance as will secure that he obtains suitable accommodation from such other person, and in determining whether accommodation is suitable they shall have regard to Part IX (slum clearance), X (overcrowding) and XI (houses in multiple occupation) of this Act."
The applicant's evidence is that he and his family continued to reside at 134 Horsenden Lane South into 1995, and that this accommodation was grossly (my word) unsuitable for his family's needs: The more so after Reuben's birth in December 1992. In October 1994 leave to move for judicial review was granted, essentially on the basis of the applicant's assertion that notwithstanding the s.64 duty there had been a continuing failure by the respondent to secure suitable accommodation pursuant to s.65(2). 134 Horsenden Lane South is a 3-bedroom property on 2 floors. It is said that because of its size and layout it is wholly unsuitable for the special needs of the family, not least the requirement for power-driven wheelchairs for the 3 children which of course must have room to manoeuvre. Other details are given in the applicant's evidence.
Fortunately, the family has recently been re—housed. They moved on 28th August 1995 to a larger house, at 113 Church Road, under the terms of an assured tenancy granted by a Housing Trust with the respondent's financial assistance. It is accepted that this accmmodation having been made available, the s.65(2) duty has been fulfilled. It follows that these proceedings are now historic, in the sense that the only substantial purpose for which they are maintained in being is to seek damages for the respondent's alleged failure to comply with s.65(2) earlier than was done. The relief sought in Form 86A included a claim for damages.
At this stage I should refer to a preliminary issue which was argued before me on 10th October 1995. That concerned a letter recently written by the respondent to the applicant, dated 5th October 1995, in which (I summarize) the respondent accused the applicant of having procured the s.65 decision by what amounted to fraudulent non—disclosure of the fact that other, seemingly suitable, accommodation was or would shortly become available to him in 1989; and indeed the respondent asserted that at some stage the applicant and his family moved into this accommodation, which was at 172 Western Avenue and was made available by the West Hampstead Housing Association. There is a hot dispute whether any such fraud took place. For the respondent Mr Underwood submitted that the letter of 5th October constituted a fresh administrative decision under s.64 which rescinded the earlier decision of 1989 or 1991, and that the stance taken by the respondent in that letter was only amenable to scrutiny in this court on conventional public law grounds: in particular (to put the matter bluntly) the court was obliged to hold that the respondent was entitled to reach the factual conclusions there set out unless they could be impugned for breach of the Wednesbury rule. If this submission was correct, the applicant would have no entitlement in this court to disprove on the facts the fraud alleged against him, and his judicial review application would, as it were, be torpedoed below the water unless (which might be very difficult) he could mount a successful Wednesbury argument against the factual conclusions described in the respondent's letter. For reasons I gave on 10th October, I rejected Mr Underwood's argument, holding that if the respondent proposed to deploy the material set out in the letter they would have to make it good substantively in the course of the proceedings.
The result is that the application cannot be defeated merely upon the respondent demonstrating that a reasonable local authority might on the evidence before it have concluded that it had been misled by the applicant in the manner suggested by the letter. Accordingly, the substantive judicial review application remains to be dealt with. However, after I had given that preliminary ruling Mr Underwood submitted (and Mr Latham for the applicant agreed) that I should hear and determine a further question which if concluded in the respondent's favour would have the consequence that the court was not required to decide whether the respondent's allegations in the October letter were true or to enter into any assessment of damages which the applicant might recover. The argument for the respondent is that even on the footing that all the assertions of fact made by the applicant are correct, in law no claim to damages can arise; and the question is whether that is right. It is said that whatever the failures of the respondent between 1989 (or 1991) and 1995, they are failures which sound only in public law and do not give rise to a claim for damages. Though there was no motion before the court to strike out the proceedings as enjoying no possible prospect of success, I was invited, in effect by both parties, to deal with this argument on such a basis.
In my judgment the starting point for a proper consideration of this question consists in a general principle of administrative law, namely that the law recognizes no right of compensation for administrative tort; by 'administrative tort' I mean breach of a duty owed by a public body arising only in public law. This principle is clearly established. A public body condemned by the court as having acted irrationally, unfairly, or illegally is not thereby rendered liable to damages. There are exceptions. If the public body is convicted of misfeasance in public office, damages may be recovered; strictly, however, this is no exception since misfeasance is recognized as a tort sounding in private law. No misfeasance is suggested here. There is a further, and true, exception where the public law breach consists in a failure to fulfil an obligation...
To continue reading
Request your trial