De-Winter Heald and Others v London Borough of Brent
| Jurisdiction | England & Wales |
| Judge | Lord Justice Stanley Burnton,Sir Simon Tuckey,Lord Justice Sedley |
| Judgment Date | 20 August 2009 |
| Neutral Citation | [2009] EWCA Civ 930 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 August 2009 |
| Docket Number | Case Nos: B5/2009/0219(A), B5/2009/0219, B5/2008/3110, B5/2008/3111, B5/2008/3112 8CLO6126, 8CLO6311 and 8CLO775 |
[2009] EWCA Civ 930
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
AND ON APPEAL FROM WILLESDEN COUNTY COURT
HHJ McDowall
AND ON APPEAL FROM CENTRAL LONDON COUNTY COURT
HHJ Mitchell
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Sedley
Lord Justice Stanley Burnton and
Sir Simon Tuckey
Case Nos: B5/2009/0219(A), B5/2009/0219, B5/2008/3110, B5/2008/3111, B5/2008/3112
8WI01562
8CLO6126, 8CLO6311 and 8CLO775
David Carter and Simon Strelitz (instructed by Duncan Lewis) for Michaela De-Winter Heald
Martin Russell (instructed by Moss Beachley Mullem & Coleman) for Salsam Al-Jarah, Nasrin Begum Ahmad and Yordanos Kidane
Donald Broatch (instructed by Brent Legal Services) for the London Borough of Brent
Hearing date : 20 July 2009
Lord Justice Stanley Burnton:
Introduction
These appeals have been heard together because they all raise an issue of practical importance to local authorities in relation to the administration of the statutory homelessness scheme under Part VII of the Housing Act 1996 (“the Act”). A number of authorities, including the London Borough of Brent (“Brent”), have contracted out some or all of the reviews they are required to carry out under section 202 of the Act. We were told that there have been inconsistent decisions in the county court as to the lawfulness of such contracting out.
The appeals are:
(1) By Michaela De-Winter Heald against the order dated 12 January 2009 of HH Judge McDowell sitting in Willesden County Court dismissing her appeal under section 204 of the Act.
(2) By Salsam Al-Jarah, Nasrin Begum Ahmad and Yordanos Kidane against the orders dated 9 December 2009 of HH Judge Mitchell sitting in Central London County Court dismissing each of their appeals under section 204.
In all of the cases before us, the reviews were carried out by Mr Minos Perdios, who describes himself as a director and the controlling shareholder of Housing Reviews Ltd. In each case, he upheld Brent's original decision.
The Appellants contend that it was unlawful for Brent to contract out the carrying out of its reviews, with the result that the reviews carried out in each of their cases were themselves ultra vires and unlawful. They also contend that there was an appearance of bias on the part of Mr Perdios which meant that their reviews were not fairly conducted and that their rights under Article 6 of the European Convention on Human Rights were infringed.
The facts
(a) Michaela De-Winter Heald
On 19 May 2006 Ms Heald approached Brent for housing assistance under Part VII of the Act, claiming to be homeless or threatened with homelessness. By letter dated 26 May 2006, pursuant to section 184 Brent informed her that she was found to be not in priority need, and she was therefore refused accommodation. She exercised her right under section 202 to request the review of that decision. That decision was reviewed on three occasions. The first review decision was withdrawn by Brent and the second was quashed by the county court. The third, which is the subject of this appeal, was notified to Ms Heald by letter dated 26 March 2008.
Each review was undertaken by Mr Perdios. Each decision letter was on Brent notepaper, and he signed each of them as “Minos Perdios Reviews Manager”. The letter dated 26 March 2008 complied with the formal requirements of the Act. It upheld the original decision that Ms Heald was not in priority need; it gave substantial reasons for that finding, and stated that the Council would provide only advice and assistance.
Ms Heald exercised her right of appeal to the county court under section 204. Her appeal came before HH Judge McDowell on 12 January 2009. She took as a preliminary point the question whether Brent had in fact carried out a lawful review of her claim. She contended that it had not done so, since it could not have lawfully delegated the review to someone who was an outsider, i.e., to someone who was not an officer or employee (or presumably a councillor) of the local authority.
Mr Perdios made a witness statement for the purposes of the appeal. In it he described himself as an independent reviews manager. His company, Housing Reviews Ltd (“HRL”), had carried out some 3,500 homelessness appeals: in fact, all were carried out by him. HRL was currently instructed by 13 local authorities to carry out reviews of their homelessness decisions. He exhibited a copy of the contract between his company and Brent dated 2 September 2005. The contract was for a period of one year. He said that a short term contract, on the same terms as the original contract, had been agreed between Brent and his company from the expiry of the original agreement until a new formal contract had been signed on 11 April 2008.
Mr Perdios accepted that his decision letter did not make it clear that he was not an officer or employee of Brent, but he said that the decision was that of Brent and her appeal would be against Brent and not him or HRL.
The contract between Brent and HRL consisted of Conditions of Contract, a Specification for Housing Decision Reviews and Appeals and Articles of Agreement. The Conditions of Contract run to 37 pages. The principal obligation of HRL is in condition 3.1:
The Contractor shall provide the Service during the Contract Period and in accordance with these Conditions, the Specification and all relevant legislation, in a proper, skilful and professional manner and in accordance with the written instructions and to the reasonable satisfaction of the Authorised Officer.
I suspect that the Conditions of Contract were Brent's standard terms adapted, to some extent at least, to the contract with HRL. It was certainly long on the obligations of HRL and the rights of Brent and short on Brent's own obligations. The Service was defined as the Housing Reviews and Appeals Service to be provided by HRL under the contract. The Authorised Officer was Ernest Amoako, Brent's Assessment Manager. The contract did not require Brent to instruct HRL to carry out all or any minimum number of reviews, but condition 25.4 conferred on Brent the power to terminate the contract on 1 month's notice if it “should omit or require HRL to cease to provide a substantial part of the Service”. In addition, there was provision for termination of the contract for cause.
The Specification incorporated in the contract set out in its Introduction the background to the contract:
Brent Council receives approximately 3000 applications a year from people seeking assistance under either the Housing Act 1996 Part 6 (Allocation of Housing Accommodation) and 7 (Homelessness) or the Homeless Act 2002. The demand for housing in Brent far exceeds the amount of permanent accommodation Brent Council has available. There are some inevitable and difficult problems that result from this, including the need to ration very scarce resources, manage Applicant expectations and the necessity to provide temporary accommodation for homeless households. …
…
The Service is currently provided by an external contractor who also provides a similar service to two other London boroughs. Brent Council has an administrative officer within the Housing Resource Centre whose sole responsibility it is to co-ordinate and correlate with the contractor all housing review information and matters. This entails dealing with all written and verbal communication with Applicants and their Advocates, as well as serving as the main link between Brent Council and the contractor. In addition, Brent Council has an Assessment Manager who decides whether Brent Council grants an Applicant temporary accommodation pending the outcome of the applicant's review and/or appeal.
The “external contractor” referred to was in fact none other than HRL. The last paragraph of the Introduction was a useful summary equally applicable to the service provided under this contract. The Role of HRL was set out under paragraph 4:
The Contractor shall effectively discharge Brent Council's duty under sections 167 (4A) and 202 of the Housing Act 1996 by making and detailing all relevant enquiries, writing Decision Review letters and adhering to all the relevant legislative and other legal requirements … and in accordance with Brent Council's Decision Review policies and procedures and any guidance which may be issued by the government in relation to aspects of the Service.
The Contractor shall complete Decision Reviews within 30 calendar days of the application being made to Brent Council where no further enquiries need to be made.
In cases where further enquiries are necessary and Decision Reviews cannot be completed within 30 calendar days, the Contractor shall make a request to the Applicant (or Advocate) for an extension to the 56 calendar day period (which is the maximum period permitted by the legislation).
The Contractor shall liaise with Brent Council's Legal Services in relation to section 204 county court appeals and provide written statements to support legal challenges or judicial review cases.
The Contractor shall handle requests for extensions of time from Applicants (or Advocates).
The Contractor shall, where necessary, conduct interviews/meetings with Applicants (or Advocates).
The Contractor shall engage the services of a translator/interpreter where necessary. Fees for translation … may be reclaimed from Brent Council …
the Contractor shall make recommendations to Brent Council concerning the final outcome...
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England v Westminster City Council
...of general importance, has now been decided in favour of the principle of delegation by the decision of this court in the case of De-Winter Heald v Brent LBC [2009] EWCA Civ 930. That decision was handed down after the notice of appeal in this case had been lodged. If a delegation of the ki......
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Jesse Panayiotou v London Borough of Waltham Forest
...appeal. 68 In the case of Mr Smith the position is different. As I have said Mr Perdios is an extremely experienced reviewer. In De-Winter Heald v Brent LBC [2009] EWCA Civ 930, [2010] 1 WLR 990 he was said to have carried out some 3,500 homelessness reviews. No doubt in the intervening ye......
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Gerald James v Hertsmere Borough Council
...decision maker is shown to have misunderstood or been ignorant of an established and relevant fact.” 21 De-Winter Heald v. Brent LBC [2009] EWCA Civ 930, [2010] HLR 8, established that it was lawful for homelessness reviews to be contracted out to third parties. This court decided this in......