Article 6, outsourced reviews and bias.

The outsourcing of s.202 Housing Act 1996 reviews by local authorities to private, commercial bodies came under scrutiny in Charlotte Augustin v London Borough of Barnet, Central London County Court, 22 May 2009 (no report available online yet). There are a couple of Court of Appeal cases on the same issue coming up, so we will be revisiting it.

This was a s.204 appeal, heard by Mr Recorder Hollington QC, of a s.202 review decision, purportedly by Barnet, upholding their decision that an offer of temporary accommodation had been suitable. The s.202 decision was actually made by Mr Minos Perdios, the director of Housing Reviews Limited (HRL), a private limited company.

The s.204 appeal was on grounds that:
1. The review was a breach of Art. 6, as it was not a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law
2. Alternatively, the review was vitiated by common law bias, as a fair minded observer would perceive there to be a real possibility of bias towards Barnet.
3. The decisions should be quashed on its merits as failing to take into account the level of support the appellant received from family, making errors of fact on traveling times, unreasonable in its decision that the appellant did not need the help of her family and unfair in not giving the appellant a chance to respond to the finding that the appellant could have found a new local nursery. (The issue of suitability turned on the location of the property).

The Court held that the review was vitiated by the appearance of bias on the part of Mr Perdios, but went to to consider the other grounds of appeal, including finding that there was an Art 6 breach in delegating the review decision to an independent contractor, and that the decision was flawed in that all material factors relating to family support had not been taken into account.

On apparent bias, the Court noted that the website for HRL stated:

We have dealt with over 3,500 reviews with unparallel [sic] success. Out of these cases 158 have been appealed in the County Court with 95% of cases successfully defended.

and under ‘course aims’:

The course will also provide ideas on writing s.184 decision letters. Too often courses do not provide homeless officers with the tools needed to make adequate enquiries, be able to obtain all the relevant information during the crucial initial interview through effective questioning and use the information obtained to write a ‘watertight’ s.184. The course also provides practical advice on how to write a ‘watertight’ s.184.

The Court found that the references to ‘success’ and to ‘watertight’ decision-making could only be references to findings adverse to the applicant. It was wrong for a person acting in a quasi-judicial capacity to be focussing on such cases. In a position where the only relationship with Barnet was commercial, there were no professional constraints or procedural safeguards beyond those in the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999, and no evidence of Mr Perdios’ skills or experience beyond a mention that he used to be a local authority review officer, there was a clear appearance of bias in his choosing to promote himself in these terms.

[A list of Councils for which Mr Pedios/HRL has provided services is on HRL's site, here. The site has been edited a little, removing the reference to success in appeals, but the passage on 'watertight' s.184s is still there.]

On Article 6, Barnet had relied on the Local Authorities (Contracting Out of Allocation of Housing and Homelessness Functions) Order 1996 and the 1999 Regulations, arguing that it was permitted by Parliament to contract out the review functions and no other safeguards had been imposed other than the 1999 Regs. The court should be very reluctant to hold Parliament’s intention fell foul of Art 6.

However, the Court found that, while there is a power to contract out the s.202 function, it depends on the terms and circumstances of the sub-contracting as to whether there is an Art 6 breach. The 1996 Order contemplates that the Local Authority will exercise its sub-contracting power in a manner as will avoid a breach, e.g. by not contracting to an organisation whose integrity, competence and experience were clearly deficient, even leaving bias out of the picture. No compliance with the procedural safeguards in the 1999 Regs nor any power of judicial review could cure the manifest defects in such a case. And deciding Art 6 compliance requires a view to the composite decision-making process, including but not limited to the judicial review process (R (Alconbury Developments Limited) v SS for the Environment, Transport and Regions [2003] 2 AC 295, Runa Begum [2003] 2 AC 430 and Adan v Newham LBC [2002] 1 WLR 2120. Ironically, in Adan, the applicant’s submisison was that the LA was obliged to contract out, to ensure independence. This was rejected by the Court of Appeal).

Hale LJ and Brooke LJ in Adan agreed that the constitution and procedures of the body to whom reviews were contracted out would be relevant to judging compliance with Art 6. In Runa Begum, the Lords expressed concerns over the Art 6 compliance of the independence of ‘a contracted fact finder, whose services could be dispensed with’ (Lord Hoffmann) and Lords Bingham and Millett doubted that ‘the exercise of quasi-judical powers is a function of the authority within the meaning of the 1996 Order’ and doubted that a person ‘appointed ad hoc by the authority directly concerned and lacking any kind of security of tenure could constitute an independent tribunal established by law for art 6(1)’. These were all dicta in those cases, though.

The Court found that the review was ‘a classic administrative decision, involving a high degree of discretion and subjective judgment’. The decision maker must be expert and also take into account policy considerations,, such as local housing and financial constraints. The ‘was a decision that Parliament had delegated to a democratically accountable institution, not the courts.’ Article 6 respected that democratic principle (per Lord Hoffmann in Alconbury, para 69).

When Barnet contracted out the review function to a person such as Mr Perdios and HRL, the decision-making ceased to be that of a democratically accountable institution. The respondent had relied on that very independence in arguing no breach of Art 6. It follows that all the reasons for the deference to the Local Authority’s judgment and discretion that are present in Article 6 fall away.

In order to comply with Art 6, contracted out review functions would either have to mean greater powers of review on merits for the courts than are given in s.204 or greater safeguards in the procedure of the review process than those in the 1999 Regulations. The review process in this case breached Art 6.

[Edit: It should be noted that it was common ground in this case that it did involve a determination of civil rights, but Barnet expressly reserved the position to argue to the contrary in the House of Lords.]

This is, of course, just a County Court s.204 appeal. It is also primarily decided on the appearance of bias rather than the article 6 point, but the argument is interesting and clearly has further to go. Two previous s.204 appeals on the issue are mentioned in relation to Mr Perdios’ review decisions and Art 6 – HHJ Dedman at Southend on Sea County Court in April 2008 found no objection, while HHJ Barnett QC at Colchester Couty Court in October 2008 held there was a valid objection. We’d be happy if anyone with any further information on those cases would contact us.

So, we’ll see what the Court of Appeal makes of the issue this time round. Again, any information on those forthcoming appeals gratefully received.

Posted in FLW case note, Homeless, Housing law - All and tagged , , , , , . RSS feed for this post and comments.

About

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +

13 Comments

  1. S
    Posted 01/06/2009 at 9:24 am | link to comment

    There are a couple of other cases that are waiting for the Court of Appeal to give them a date. The other two county court cases you cited have not been appealed.

    The problem I have with this decision is that the Judge has glossed over the issue of what constitutes a civil right for the purposes of Art. 6. Runa Begum left this question open after all (and Bingham even said homelessness reviews probably don’t decide a civil right).

    By saying this was “a classic administrative decision, involving a high degree of discretion and subjective judgment”, it is hard to fathom how the Judge could in turn have decided that a civil right was engaged; “classic administrative decisions” are precisely the sort of decisions that generally do not engage Art. 6.

    Unfortunately, because of that, I do not think this case helps a great deal. We’ll just have to wait for the higher courts to make their decision. Until then, the Art. 6 point is very much up in the air.

    However, in the cases where Minos Perdios is involved I don’t think it will make a huge difference; any appellant would have a good case to argue that the content of his website would lead most fair minded and informed observers to conclude that there was a real possibility of bias.

    • chief
      Posted 01/06/2009 at 12:49 pm | link to comment

      I understand that it was accepted as common ground in this case that it did involve a determination of civil rights, but that counsel for the LA expressly reserved his position to argue to the contrary in the House of Lords.

  2. Barrack Room Advice Services
    Posted 01/06/2009 at 2:12 pm | link to comment

    Hopefully the judgment will find its way to BAILII, but I suspect the real value of Augustin is demonstrating the value of googling the opposition, especilly when it is Barnet LBC. Quoting Barnet’s policies to their staff can have a somewhat chastening effect.

    Anybody perusing the HRL website may also wish to consider its compliance with The Companies (Trading Disclosures) Regulations 2008 (2008 No. 495) in particular Reg 7 – Further particulars to appear in business letters, order forms and websites.

  3. tim scott
    Posted 01/06/2009 at 10:00 pm | link to comment

    Three thoughts:

    1 if 158 of his decisions have been tested in the courts and almost all (95%) found to be correct, isn’t he entitled to tell people about that?

    2 his employment status seems irrelevant: if he returned to the employ of a LA and used the same court-approved methods (see 1 above), then his decisions would be the same.

    3 what’s wrong with watertight letters? Isn’t that what you legalsters spend years trying to get right?

    Killing the messenger methinks.

    • Posted 01/06/2009 at 11:08 pm | link to comment

      Tim

      1. If he had said, on x percent, the review overturned the s.184, y percent upheld the 184 and were appealed and z percent reversed on appeal, it might have been OK. As it stands ‘unparallel success’ clearly indicates negative decisions, as the appeal figures show. The question is success in what? So what the blurb is saying is ‘our reviews uphold the 184 and are rarely overturned’. But you know this, I’m sure.

      2. First, he wasn’t employed – he was a out-worker on a contract, piece work I presume. Second, the point in this judgment is that local authorities, as democratic bodies, get the benefit of the doubt when it comes to Art 6. Unregulated, piece-work contractors, entirely at the mercy of the whim of the LA for further work, should not, (particularly but not exclusively when they promote themselves as getting the results the LA wants). This argument may or may not be right, but it has to be considered. In the meantime, consider your view that an ad hoc, piece work contractual relationship has no significance whatsoever for the likelihood of independent decision making on the part of the piece worker to be duly noted.

      3. Yes, but we are arguing a case on behalf of our client, not making a quasi judicial decision. That should be lawful, considered and accurate. ‘Watertight’, clearly, is what you look for in a decision you are seeking to defend – so visibly taking a side.

      Killing the messenger – not in this instance. The decision was deficient as well.

  4. S
    Posted 02/06/2009 at 11:36 am | link to comment

    There is also a wider issue at stake: if the local authority can contract out the s.204 decision, why not the s.184 decision? Why not the whole department?

    Lord Millet and Lord Bingham both said in Runa Begum that they were of the opinion that certain inportant functions could not be contracted out under the order (unfortunately they didn’t really tackle the problem and gave no reasons for deciding such).

    Do we really want unaccountable private contractors making decisions that affect so many people’s lives?

  5. Geoff
    Posted 02/06/2009 at 4:38 pm | link to comment

    Hopefully if its goes further will resolve the question of whether s184 decision making can be contracted to ALMOs/RSLs. Most authoties who had done so are hedging their bets by decisions being ‘signed off’ by the Council to avoid challenge at the moment.

  6. dave
    Posted 03/06/2009 at 8:53 pm | link to comment

    These cases are, as you have noted, of considerable significance not just to s 202 and 184 but also Part 6 (eg s 167(4A)(d)) where the issues may be different, certainly in relation to Art 6.

    My question is this: isn’t the central domestic law issue about the scope of sections 70-72, Deregulation and Contracting Out Act 1994, including the meaning of “functions”, under which the SI was made? If the review is a function which is capable of being contracted out (and is not expressly excluded by the SI), then the only domestic issue against Minos Perdios is the bias point which (@Geoff) is one that would be unlikely to be of relevance against an RSL/ALMO. Actually, bearing in mind section 72, which makes the LA’s liaiblity continue, is it such a deal that the decision letter was on the LAs notepaper? @S – Having read Runa Begum carefully a few times, I can’t really see the basis for the comments by Lords Bingham and Millett – even section 71(1) doesn’t seem to provide the necessary exclusion – and note that Hazell on the meaning of functions as well as section 101, LGA 1972 etc were not cited in Runa Begum. Check out the Parliamentary debates on those sections – your concerns as to unaccountable private sector organisations carrying out these functions were not shared by the tories (surprise, surprise).

  7. JS
    Posted 06/06/2009 at 12:00 am | link to comment

    I agree with S . Regardless of the questions of apparent bias and Lord Hoffmann’s doubts re Art 6 compliance I find Lord Bingham and Lord Millett’s objections to the use of external reviewers compelling.

    In the only case in which I have come across a decision by Mr Perdios we launched j.r proceedings on the basis that this was a point of public importance . The response of the local authority involved was to accept that the decision of Mr Perdios was flawed for other reasons , pay our costs and send the review to an in -house reviewer !

    The question also evidently arises where local authorities have transferred their stock via an LSVT and purport to delegate the homelessness ” functions “

  8. J
    Posted 27/07/2009 at 9:32 am | link to comment

    The point has now been argued in the CA and, apparently, went badly for the appellant. During argument, Sedley LJ appeared to be suggesting that there was no problem at all with contracting out. Ward LJ has just refused permisison on another one, on the basis that there is no problem with contracting out. As ever, as soon as there is a judgment, we’ll bring it to you.

  9. Krystal
    Posted 07/05/2012 at 12:37 pm | link to comment

    This post interested me – her circumstances and my own are very similar and I am currently in the process of a s.204 review involving Mr Perdios and HRL without any legal representation – however your article inspired me to dig a little deeper into HRL services to several councils.

    Thank you.

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