Tomlinson and another v Birmingham City Council

JurisdictionEngland & Wales
JudgeLord Justice Lloyd,Lord Justice Thomas,Lord Justice Rimer,Lord Justice Hughes,Sir Anthony May,Lord Justice Wall,Lord Justice Moore-Bick
Judgment Date14 October 2009
Neutral Citation[2008] EWCA Civ 1228,[2007] EWCA Civ 1407,[2009] EWCA Civ 1279
Date14 October 2009
CourtCourt of Appeal (Civil Division)
Docket NumberCase No: B5/2009/0334,Case Nos: B5/2007/2143 & B5/2006/2277 & B5/2007/0931,Case Nos: (1): B5/2007/0931 (3): B5/2006/2277

[2007] EWCA Civ 1407

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM BIRMINGHAM CIVIL JUSTICE CENTRE

(1): RECORDER LOCHRANE

(2): HIS HONOUR JUDGE MACDUFF QC

(3): HIS HONOUR JUDGE MCKENNA

Royal Courts of Justice

Strand, London, WC2A 2LL

Before

Lord Justice Lloyd

Case Nos: (1): B5/2007/0931

(2): B5/2007/2143

(3): B5/2006/2277

Between
Tomlinson
1st Appellant
Ali
2nd Appellant
Ibrahim
3rd Appellant
and
Birmingham City Council
Respondent

Mr J Goudie QC and Mr Z Nabi for the Appellants Mrs Tomlinson and Mrs Ibrahim; Mr N Nichol for the Appellant Miss Ali (instructed by The Community Law Partnership, Ruskin Chambers, 191 Corporation Street, Birmingham, B4 6RP)

Ms C Rowlands (instructed by Birmingham Civil Justice Centre) appeared on behalf of the Respondent.

Lord Justice Lloyd
1

I have before me applications for permission to appeal in three cases where the respondent is Birmingham City Council, all raising points under Part 7 of the Housing Act 1996, dealing with homelessness.

2

They have one feature in common. The House of Lords decided in Begum (Runa) v Tower Hamlets London Borough Council [2003] UKHL 5 that the statutory scheme for review and appeal under Part 7 of the Act was compatible with Article 6 of the European Convention on Human Rights and the homeless person's right to a fair determination of his or her civil rights. The contention in these appeals is that that decision is either distinguishable or requires to be reviewed in the light of a more recent decision of the European Court of Human Rights called Tsfayo v United Kingdom [2006] ECHR 60860/00, a decision on 24 October 2006. That case related not to the homelessness legislation but to housing benefit and council tax benefit. It related to a regime which was discontinued in 2001 in favour of specialist tribunals, but before that an appeal against a refusal of a claim to benefit had come before a housing benefit and council tax benefit review board, which consisted of three members of the relevant council. The European Court of Human Rights held that that was not an independent and impartial tribunal, as required by Article 6. Although the court referred to Begum and distinguished it, and therefore could not be said to be casting doubt on it directly, nevertheless it is said that the decision does cast doubt on the application of Begum in relation to certain types of issue arising under Part 7 of the Housing Act, namely points where what is really at issue is not an evaluative process on the part of the local authority, but a question of fact.

3

Thus in the appeals both by Miss Ali and by Mrs Ibrahim, the issue at the core of the case is whether the appellant received a particular letter sent by the respondent council. That is a self-contained question of fact which it is said does not involve any evaluative or balancing assessment of the type that is properly left to the democratically accountable local authority.

4

In the case of Mrs Tomlinson the issue is also one of fact, though not quite such a stark and simple issue. The question is whether she became homeless intentionally; that depends on whether she had deliberately done or failed to do anything in consequence of which she ceased to occupy accommodation available for occupation which it would have been reasonable for her to continue to occupy. Particularly relevant is Section 191(2) by virtue of which, for the purposes of subsection (1), an act or omission in good faith on the part of a person who was unaware of any relevant fact should not be treated as deliberate. The council, in its original position and in its review, considered that Mrs Tomlinson had not acted in good faith; she was unsuccessful in her challenge to that on the appeal to the County Court, largely because the recorder who heard the appeal considered that those questions of fact were left to the local authority by the statutory regime.

5

Mr Goudie submits on behalf of Mrs Tomlinson and Mrs Ibrahim that such a position is inconsistent with Article 6 and is inconsistent with the decision in Tsfayo and Mr Nichol appearing for Miss Ali supports that submission. They also contend that there is or may be scope for distinguishing Begum in that, on its true construction, as a matter of ratio it applied only to certain aspects of the homelessness regime, or perhaps better put, it applied to the statutory review and appeal procedure under Part 7 of the Housing Act 1996, but only in relation to certain kinds of decision.

6

One can see that that is a submission which has logic to it, but would lead or could lead to a position which would be rather difficult to apply in practice. Miss Rowlands, for the local authority respondent, reminds me that even if the decision in Begum were to be seen as incompatible with Tsfayo, which she has not for a moment conceded, this court would be bound to follow Begum even if there were such an incompatibility. That was decided by this court in Price v Leeds City Council. When that case was appealed to the House of Lords one of the few points on which all members of the House were unanimous was in holding that the Court of Appeal was bound by precedent, whatever inconsistency that there might be: see [2006] UKHL 10 at paragraph 43, per Lord Bingham, with whom all the other six members of the House of Lords expressly agreed on that point.

7

There are two possible courses. One would be direct to the European Court of Human Rights, having exhausted domestic remedies, and if permission to appeal to the Court of Appeal were refused such domestic remedies would have been exhausted. But Mr Goudie submits that a better course would be to grant permission to appeal to this court and, even if the argument in this court were to turn out to be short, which I am not sure that I could confidently predict, and even if it were to turn out to be unsuccessful, which may or may not be easier to forecast, there would at least be the possibility of applying both to this court, and failing that, to their Lordships for permission to appeal, so that their Lordships could review the suggested incompatibility.

8

I should say that there are other grounds of appeal in Mrs Tomlinson's case, and also to an extent in Mrs Ibrahim's case, but far and away the most important point is the point which, as it seems to me, is eligible for consideration in relation to the proposed second appeals, which all of these would be, that is what I would call the Tsfayo point.

9

Having heard counsel's submissions, amplifying succinctly their skeleton arguments in the several cases, it seems to me that the right course to follow is to grant permission to appeal on the Tsfayo point, which is the only point in Miss Ali's case, and is the principal point in the other two cases, and to refuse permission on the other points in the other two cases because, as it seems to me, they do not satisfy the second appeal test, and therefore to allow the matter to proceed to a full appeal. I regard the scope of the appeal as being whether Begum does apply, as Miss Rowlands for the respondent argues, to these types of issue arising under Part 7 of the 1996 Act, and if it does, what, if anything, is the impact of the Tsfayo case on that.

10

I will grant permission to appeal limited to that point, which is the one point in the Ali case and is one of the points in the other two cases. I refuse permission on the other points, but not intending thereby to preclude argument as to the true scope of the ratio in Begum, and I will direct that all three cases come on together. The appeals should be heard, because of the importance of the point, with as much dispatch as can be arranged consistent with orderly listing.

Order: Applications granted.

[2008] EWCA Civ 1228

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM Birmingham County Court

HH Judge MacDuff QC

HH Judge McKenna

Birmingham Civil Justice Centre

Before:

Lord Justice Thomas

Lord Justice Hughes and

Lord Justice Rimer

Case Nos: B5/2007/2143 & B5/2006/2277 & B5/2007/0931

Between
Fazia Ali
Appellant
and
Birmingham City Council
Respondent
and
Khadra Ibrahim
Appellant
and
Birmingham City Council
Respondent
and
Emma Louise Tomlinson
Appellant
and
Birmingham City Council
Respondent
and
The Secretary Of State For The Communities And Local Government
Interested party in both appeals

Mr James Goudie QC and MrZia Nabi (instructed by the Community Law Partnership) for the Appellant (Fazia Ali)

Mr Ashley Underwood QC and MissCatherine Rowlands (instructed by Mirza Ahmad, Birmingham City Council) for the Respondent

Mr Richard Drabble QC (instructed by the Treasury Solicitor) for the Secretary of State

Hearing date: 26 June 2008

Lord Justice Thomas

Introduction

1

Under Part VII of the Housing Act 1996, Birmingham City Council as a housing authority determined it had discharged its duty to two homeless persons on the grounds they had declined suitable accommodation. On review by the authority's reviewing officer under s.202 of the Act the decisions were upheld on grounds which included findings in each case that the homeless persons had received a letter giving the appropriate statutory notice under s.193. Each appealed to the County Court under s.204 which provides for an appeal on a point of law; that right of appeal is in substance the same as the jurisdiction of the High Court on judicial review. The appellants sought to...

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