This is only for for those of you who have been reading this blog for some time, but I’m quite pleased to be able to say that Nearly Legal (the person) has finally been admitted to the roll as a solicitor. Everyone else involved in the blog is, of course, already stunningly qualified.

Now, do we change the name of the blog?

LB Wandsworth v Whibley [2008] EWCA Civ 1259.

If a postponed possession order is made and the landlord takes the view that the conditions of postponement have been broken, the application for a date for possession should be conducted on a summary basis and only on the basis of evidence submitted by the landlord… or so argued LB Wandsworth in this case. Unsurprisingly, they lost.

Mr Whibley is the secure tenant of LB Wandsworth. He was a man who cultivated and used cannabis and who had been convicted of the same. LB Wandsworth sought possesson of his property on the basis of his drug convictions and some minor rent arrears. In due course, after trial, a postponed possession order was made. For some reason (likely an administrative error on the part of the court) the PPO only referred to payment of rent and not to any conditions to do with the nuisance.

A few months after the possession order was made, Wandsworth received further complaints about the behaviour of Mr Whibley. The solicitor for Wandsworth wrote to him giving details of the complaints and asking for a response within 7 days, in particular, detailing whether or not he disputed the right of the council to seek to fix a date for possession.

Mr Whibley did not respond himself but, very sensibly, engaged Flack and Co, who informed Wandsworth that the allegations were disputed (in the interests of full disclosure, William Flack is a regular commentator on this blog and is a friend of NL).

Wandsworth then applied to the county court to fix a date for possession. They included a witness statement in support of their application but did not provide the court with a copy of the letter from Flack and Co. (Although nothing ultimately turned on that point, that strikes me as particularly sharp practice). They later added rent arrears as a second reason for seeking to fix a date.

Mr Whibley cross-applied, seeking to adjourn the hearing with directions or, alternatively, for any warrant to be suspended. It was made clear that he denied responsibility for any nuisance and that, on his case, the nuisance was caused by unwanted and uninvited ‘guests’ who had taken over his flat.

The DJ who heard the applications did not give possession as Wandsworth sought, but instead varied the original possession order so as to record the condition of postponement as regards nuisance and then gave directions. He did, however, give Wandsworth permission to appeal. Wandsworth accepted that invitation and appealed to the Circuit Judge. Their stated intention (both before the CJ and the CA) was to:

Secure a ruling that, save in quite exceptional cases… county courts should give summary judgment without hearing evidence on applications to set a date on a postponed possession order [10]

The Court of Appeal had no difficulty in disposing of this argument. Whilst it is possible to deal with rent arrears cases in this way, that is only because rent arrears are (usually) a matter of record. This was not (usually) the case in nuisance cases, where the conduct was often disputed. That being so:

It is not permissible for a tenant who has a possible answer to lose his or her home unheard [12]

The nature of any such hearing (the necessary directions etc) would vary from case to case, and courts would be alive to ensuring that nuisance tenants did not abuse this process, but the process still had to be fair to both sides. A summary procedure could not possibly be fair if there was any room for dispute about the factual allegations made by the landlord.

Wandsworth had relied on Southwark v St Brice [2001] EWCA Civ 1138 for the proposition that a landlord should not have to prove matters twice. However, as the Court of Appeal pointed out, that was not what would happen in a PPO. The landlord was alleging fresh breaches of the terms of the postponement. It should have to prove them in the usual way.

Of course, if a tenant did not dispute the allegations (whether to do with rent, nuisance or anything else) then a court could properly consider the matters on the papers and proceed in a summary fashion, but that was not the case here. Appeal dismissed.

Sometimes, you just feel like weeping. Social landlords do, in my view, have a very important role to play in progressing the law and in advancing the best arguments that they can. They can and should push the law where they see fit. But this argument was nothing of that sort. This just seems petty and vindictive.

Webb v Wandsworth LBC (Court of Appeal, November 12, 2008, extempore judgment and only noted in Arden Chambers Eflash 328)

Ms Webb was the secure tenant of LB Wandsworth. Between 2005 and 2006 her son was involved in a number of serious criminal and anti-social acts in the local area. In response, Wandsworth issued possession proceedings relying on Grounds 1 and 2, Sch. 2 Housing Act 1985. Shortly thereafter, an ASBO was made against the son. The son subsequently left the family home, although he would regularly return to visit his mother.

The possession trial came on in October 2007. There had been no ASB for a year and the son had been living elsewhere for 8 months. The Judge made a postponed possession order, apparently taking into account the fact that the son had been charged (but acquitted) of three breaches of the ASBO.

Ms Webb appealed to the Court of Appeal and contended that the three acquittals were irrelevant considerations. The Court unanimously upheld her appeal and quashed the possession proceedings. It was wrong in principle to take those matters into account.

Sedley LJ has, apparently, gone further and in his judgment, has stated that it is not permissible to use a possession order as a means of trying to force a tenant to exercise control over a third party.

It is, as you might imagine, the comments of Sedley LJ that appear to be the most interesting. I defend a fair few ASB cases and one of the things which most frustrates me is seeing my clients being demonised for the actions of their children/(drunken) partners. At a personal level, I hope the transcript of this judgment is as promising as the Eflash suggests it will be.

In what appears to be a good week for somewhat bizarre cases, may I present Carlos Allen v London Borough of Southwark (2008)  CA (Civ Div) 12/11/08 (unreported save as a case note on Lawtel). This was an appeal by Mr Allen to the Court of Appeal of the striking out of his claim for harassment against LB Southwark.

Mr Allen was a Southwark tenant. Since 1996, Southwark had issued five possession proceedings against him for rent arrears. Southwark had insisted that Mr Allen pay his rent at a Post Office rather than his local housing office, which apparently couldn’t deal with cash. Mr Allen defended the first claim on the basis that his tenancy agreement specified payment at a housing office and it had never effectively been varied to permit or authorise payment otherwise. The first possession claim was struck out as Southwark could not show the tenancy agreement had been varied. And so were the next four possession claims. Each time, Southwark failed to show the tenancy agreement had been varied to permit or include payment at a Post Office.

Mr Allen brought a claim for harassment contrary to the Protection from Harassment Act 1997 in respect of the last three possession claims. At County Court, his claim was struck out as having no reasonable prospect of success.

Mr Allen appealed, in person. The issue was whether separate proceedings founded on the same alleged cause of action could constitute harassment under the Act. Southwark argued that its behaviour might have been careless, negligent, perhaps even vexatious, but it wasn’t harassment.

The Court of Appeal found:

The Act did not define the meaning of “harassment”, but subsequent case law found it to comprise conduct that was oppressive, unreasonable or unacceptable, Thomas v News Group Newspapers Ltd (2001) EWCA Civ 1233, (2002) EMLR 4 and   Majrowski v Guy’s and St Thomas’s NHS Trust (2006) UKHL 34, (2007) 1 AC 224  applied.

The local authority only asserted that it was careless or negligent, giving nothing further, but a reasonable person might consider that  the authority’s conduct did indeed amount to harassment. The judge was wrong to find  that Mr Allen’s claim had no reasonable prospect of success. The case was to continue to trial in the County Court.

I wish a full judgment was available. I’d love to read the details. Of course, this is going to be somewhat limited application, but I think one has to take one’s hat off to Mr Allen.

While Zalewska v Department for Social Development (Northern Ireland) [2008] UKHL 67 is not a housing case as such, I hope that many of our readers will still find this useful and interesting.  It is the second time in a fortnight (after RJM) that the House of Lords has had to consider whether UK legislation preventing someone from accessing benefits is compatible with European emanations, but this time it is EC law that is under consideration.

The issue was whether a Polish applicant was entitled to income support having worked in the UK for 12 months without interruption.  She was required to register her periods of employment and had not done this for all of them.  Her claim was disallowed as her failure to register for some of the time meant that she had no right to reside.

By a 3-2 majority their Lordships (Lords Hope, Carswell and Brown) held that she was not habitually resident (Baroness Hale and Lord Neuberger dissenting).

Facts

Ms Zalewska, a Polish national, went to Northern Ireland to look for work on 1 July 2004.  Between 9 July 2004 and 7 January 2005 she worked picking mushrooms.  From 8 January 2005 for a period of about three weeks she worked for a well know vodka producer.  From the end of January 2005 she started working for a company called Linwoods.  At about this point her three year old daughter joined her in Northern Ireland.  In April her daughter’s father also moved to Northern Ireland.  Ms Zalewska and her daughter moved in with him in May 2005.  She continued to work for Linwoods until 10 July 2005, at which point she stopped.  On 22 July 2005 she applied for income support for her and her daughter.  Before Paul Dacre starts jumping up and down at this point, it should be pointed out that Ms Zalewska had left the family home due to domestic violence before she stopped working for Linwoods.  As Baroness Hale notes two points follow on from this factual history [51]:

first, that she was going through a very difficult time when she ceased work; and second, that there is nothing at all to suggest that she came here to work with a view to claiming benefits in due course. Indeed, the Tribunal which heard her case in November 2005 stated that she was continuing to seek work although not required by the benefit rules to do so.

However, her claim for income support was rejected as she had not been registered as working for an authorised employer for an uninterrupted period of 12 months, as required by the Accession (Immigration and Worker Registration) Regulations 2004 (SI 2004/1219).  Although she had correctly registered the employment picking mushrooms for Monaghan Mushrooms Ltd, she had not done so while working for either Smirnoff Vodka or Linwoods.  In the case of Smirnoff this was not a problem – she was with them for less than a month so this period was covered by reg 7(3).  By failing to register her employment with Linwoods, Ms Zalewska was no longer entitled to be treated as a “worker” for the purposed of the Regulations.  Consequently she had no right to reside and could not become habitually resident.

Arguments

On behalf of Ms Zalewska, Mr O’Hara QC argued that art 39EC and art 7(2) of Regulation 1612/68 entitled her to the same social and tax advantages as workers who are UK nationals.  Therefore her failure to comply with the registration requirements should just be disregarded.  As a secondary argument Mr O’Hara suggested that the right to reside test that is applied, including the registration requirements for employment, is unnecessary and disproportionate.  This second argument was supported by the interveners, the Child Poverty Action Group and the Public Law Project.

On behalf of the Department of Social Development Mr Lewis QC argued that the question of whether national rules were a disproportionate restriction of EC rights did not arise due to the derogation.

Held

The measures taken were compatible with the authority given by the Treaty of Accession, but they were still subject to the EC requirement of proportionality.  All of their Lordships agreed on these two points (see [25]-[30]).  Where the majority and the minority differed was in their treatment of proportionality, acknowledged by Lord Hope as “the most troublesome aspect of this case” [31].  Lord Hope’s view, adopted by the majority, was that when the whole context was examined the measures and their consequences were neither unreasonable nor disproportionate.

As Lord Hope stated at [31]:

The principle of proportionality requires that the means employed to achieve an aim recognised by Community law as legitimate correspond to the importance of that aim and are necessary for its achievement.

In this case, the legitimate aim was to enable the UK to monitor and review arrangements for access by A8 nationals to the labour market, in order that the UK could determine whether further steps needed to be taken to prevent disruption to the labour market during the accession period.  The argument against the measures is that they were not proportionate to achieving this aim, specifically that the requirement to re-register was unnecessary.

In Lord Hope’s view this argument focussed too much on “access” to the labour market simply meaning point of entry.  In his judgment, a complete picture of the impact of A8 workers on the UK labour market could only be obtained by gathering information about the sectors in which they were employed over the whole 12 months.  The requirement to have worked “legally” for 12 months before benefits could be claimed was a rational way of imposing pressure on A8 nationals to register their different periods of employment in order to build up this picture (see [41] endorsing Commissioner Rowland’s assessment of proportionality).

Baroness Hale, with whom Lord Neuberger agreed, applied proportionality differently.  Baroness Hale noted that various parts of the scheme “could have been better designed and implemented” for the purpose of the principal aim of monitoring ([55]).  She cited the one month rule (reg 7(3)), which could mean that some A8 workers were never counted; the long delay in issuing certificates of registration; and the fact that the £50 fee charged to applicants could be a deterrent to applying.

Above and beyond that though, Baroness Hale felt that it was difficult to see how the future denial of benefits to a person who has worked in the UK for at least 12 months was a suitable means of achieving the aim of monitoring [56].  Baroness Hale went on to say:

57.  It is even more difficult to see how denial of benefits can be a necessary means of achieving the monitoring aim. The consequences for the worker’s right to freedom of movement are severe. She was allowed to come and to work here for 12 months. But she has been denied what she would otherwise be entitled to, having worked for so long. And by that stage the benefits for the monitoring scheme scarcely exist, but could in any event be achieved by allowing retrospective registration. The worker would still, of course, have to prove that she had indeed qualified by having worked here for the required period. The consequences of the sanction are particularly severe in a case such as this, where the claimant has registered once. She has therefore been counted for the main purpose of the scheme, which is to count heads rather than jobs.

58.  Even if encouragement to join the formal economy were an aim, a more suitable and proportionate means of achieving it would be by criminal sanctions against employers. The scheme does provide for sanctions against employers and an extended time limit for prosecution applies. But we have no information about how vigorously this has been pursued, either in general or in this particular case. If the agency (or Smirnoff or Linwoods) had been clear that they would be prosecuted for every A8 worker they took on without a certificate, the appellant would not have been in the predicament in which she found herself on 22 July 2005. The perils for them would not be disproportionate whereas the perils for her undoubtedly were.

While this case will be of interest to those who deal with the decreasing numbers who might be caught up in a similar factual situation, it is also very interesting to compare the two different approaches to proportionality, see [31]-[44] & [63]-[65] on the one hand and [48]-[59] & [68]-[69] on the other.  As this concept continues to make inroads into UK public law the tensions between the two treatments will inevitably crop up again and again.  That is something that housing lawyers can’t afford to ignore.

Mich-Onyibe v Wandsworth LBC (04/11/08, CA, judgment currently unavailable otherwise than by way of e-flash from Arden Chambers) is a kind of a curious footnote to homelessness law.  Wandsworth accepted that they owed the full Part VII housing duty to Ms Mich-Onyibe.  they offered her a bedsit on the first floor.  She refused it.  She suffered from a variety of health problems including Type 1 diabetes (involving regular seizures), chronic renal failure and claustrophobia.  She said that she couldn’t use the lift to get to the property because of her claustrophobia and she couldn’t use the stairs because of her medical conditions.   Her daughter, who cared for her, could not stay overnight, and her son could not stay at weekends.  The property was also too far from her daughter’s home and the hospital where Ms Mich-Onyibe received treatment.  Wandsworth rejected her refusal and upheld its decision on the s 202 review.

Ms Mich-Onyibe then took a s 204 appeal to the county court and the hearing was heard over three days.  The parties subsequently made repeated requests to the judge for the outcome of the hearing.  Over three months later, the judge dismissed the appeal stating that he would give his reasons later.  He didn’t and it subsequently transpired that the judge had retired.

The Court of Appeal refused to rehear the matter as a second appeal because of the amount of medical evidence and documentation.  They allowed Ms Mich-Onyibe’s appeal, though, on the basis of the failure of the judge to give a reasoned judgment and remitted the matter to the County Court for a further re-hearing.

It’s fair to say that NL has dealt with its fair share of bizarre cases and this one fits within that pantheon.  It’s also fair to say that some judges look as if they’re a fish out of water on s 204 appeals and this can show up in their judgments.  Whether or not that was the case here is difficult to say - it would, however, be interesting to know generically what level and type of training judges have before they sit on homelessness appeals.

And then there is poor Ms Mich-Onyibe who is still waiting for a proper judicial determination of her claim…

Housing Minister Margaret Beckett dropped a bit of a bombshell yesterday.

The Government has (according to leaks in the Times) responded warmly to a CIH proposal to end secure and assured tenancies as we know them and replacing them with fixed term contracts which are reviewed every 3 or so years. The idea would be that, if, at the end of the review period you’re financially able to survive in the private sector (whether as a renter or a owner-occupier) you should be required to do so. In effect, social housing becomes a temporary stop-gap for people, save for those who are too vulnerable to survive in the private sector. The concern underlying this announcement is to try and get more people who are owed the full Part 7, Housing Act 1996 duty into accommodation.

Another Green Paper is promised in due course, where this proposal will be (one suspects) fleshed out. I wonder if another option might be to allow local housing authorities to build more houses?

More information from the BBC here and Inside Housing here.

As many readers will know, Debbie Crew has been conducting a campaign about retaliatory evictions - typically in private tenancies where a tenant has complained about conditions in the property and got Environmental Health in, and the landlord promptly issues accelerated possession proceedings, to which there is no defence. I first mentioned it back here. Here is Debbie’s blog of the campaign.

Debbie has a lot of support for the campaign, including from ATRO, the tenancy relation officers organisation. She has cross-party parliamentary support, expressed in an Early Day Motion. But the final leap to getting proposals into the forthcoming green paper on private lettings needs a further hefty push, and particularly concrete evidence of the scale of the problem. (The York paper having helpfully dismissed CAB etc. concerns by saying, in effect, ‘well they would say that, wouldn’t they’ - the Mandy Rice Davis approach to policy formulation).

Debbie says that people with experience of retaliatory eviction, particularly tenants, are welcome to make contact and pass on their experience via the Campaign’s Facebook page.

My own (limited and anecdotal) experience is that this is an issue, particularly with the worst private landlords and, all too often, for the worst off and optionless tenants. To me, that in itself suggests action would be merited, regardless of how widespread the problem may be across the entire private sector.

What more could you wish for on a Friday afternoon that a bit of homelessness law in the Court of Appeal?  Don’t answer that.  Anyway, on to Ali & Ibrahim v Birmingham City Council [2008] EWCA 1228.

Two joined appeals, one on behalf of Ms Ali and one on behalf of Ms Ibrahim, came before the Court of Appeal on whether findings of fact made by a review officer under s. 202 of the Housing Act 1996 and the subsequent right of appeal to the County Court under s. 204 were compatible with Article 6 of the ECHR and particularly the ECtHR decision in Tsfayo v UK [2006] ECHR 981.  Central to the case was whether the House of Lords decision in Runa Begum v Tower Hamlets LBC [2003] UKHL 5 covered the issue and whether Runa Begum should be viewed differently in the light of Tsfayo.

Facts - Ali

Ms Ali, a single parent with two young children, made a homelessness application to Birmingham in October 2006.  A full s. 193 duty was duly accepted.  An offer was made in November 2006 of a flat in Sutton Coldfield, which Ms Ali refused.  Birmingham then wrote to her saying that their duty had been discharged and notifying her of her right to a s. 202 review.  Ms Ali requested a review.  This review was carried out in February 2007 and recommended that a further offer be made due to an administrative error in the original offer letter.

In March 2007 Birmingham made an oral offer of a maisonette in Erdington.  They then wrote to her on 14th March 2007.  The letter was headed “Final Offer of Accommodation” and dealt with the consequences of a refusal (s. 193).  Ms Ali denied that she ever received this letter.  She viewed the property on 19th March and refused it.  Birmingham subsequently sent another ‘duty discharged’ letter.  Ms Ali again sought a review.

While this review was going on Ms Ali was made another offer of accommodation, this time in Teviot Tower.  This offer was not made in connection with her homelessness, but because of her position on the waiting list.  Ms Ali also refused this offer.

The reviewing officer sent a decision letter on 2nd May 2007, stating that it was not accepted that Ms Ali had not received the letter of 14th March.  In part this decision relied upon the fact that the reviewing officer had spoken to Ms Ali, who had confirmed that she had received the offer letter. (Ms Ali claimed that in her telephone conversation with the reviewing officer she was referring to the offer letter for Teviot Tower).  The reviewing officer went on to conclude that the property was suitable and the duty was therefore discharged.

Ms Ali pursued a s. 204 review to the County Court where HHJ McDuff QC held that he did not have to determine as an issue of fact whether the letter of 14th March had been received by Ms Ali.

Facts – Ibrahim

Ms Ibrahim has six children.  She is of Somali origin and has a poor understanding of English.  In May 2005 Birmingham accepted a full duty towards her and made her an offer in October 2005.  Unfortunately, they seem to have made a bit of a hash of it.  Birmingham claim that the authority sent Ms Ibrahim two letters at the same time.  One appears to have been an ordinary housing waiting list letter, which clearly did not comply with s. 193.  It was Birmingham’s case that this letter was included by mistake.  The second letter, according to Birmingham, did comply with s. 193(5).

Ms Ibrahim contended that she only ever received the ‘waiting list’ letter, not the ‘s. 193’ letter.  She refused the property, without viewing.  Two subsequent reviews held that the duty had been discharged, so an appeal to the County Court was launched.  Before HHJ McKenna it was argued that Ms Ibrahim had not received the second letter and that the accommodation was not suitable.  HHJ McKenna found that the property was suitable and that the issue as to the receipt of the letter had been determined by the reviewing officer.  Permission to the Court of Appeal was only allowed on the issue of the letter.

A third case was originally to be heard at the appeal.  This related to a finding that an applicant was intentionally homeless, but as Birmingham had since accepted that they owed a full duty to her they argued that her appeal did not need to be heard.  The CA agreed that that her appeal was academic and the point of principle as to the scope of the right to appeal in Part VII of the 1996 Act could be determined by reference to the appeals of Ms Ali and Ms Ibrahim.  In the meantime the Secretary of State for the Communities and Local Government was joined as an interested party.

In a nutshell, the issue on appeal was therefore whether a decision on an issue of primary fact (in these cases whether a letter had been received by an applicant) could be made by a local housing authority’s review officer.

Arguments

On behalf of Ms Ali and Ms Ibrahim it was argued that:

The decision taken by an authority in cases under Part VII of the 1996 Act was a determination of their civil rights and obligations, thereby engaging Art 6(1);
The review by the authority was not by an “independent and impartial tribunal” – in order to comply with Art 6(1) an appeal to the County Court under s. 204 must extend to issues of fact where the decision on the facts did not involve consideration of issues of policy;
Runa Begum could be distinguished as only covering those decisions where issues of specialist knowledge and policy were required.  It did not extend to cases, such as the instant case, where simple issues of fact were involved;
The ECtHR had distinguished Runa Begum on this basis when giving its decision in Tsfayo;
Consequently Ms Ali and Ms Ibrahim were entitled to a full merits appeal and should be able to challenge findings of fact through a full re-hearing, including the hearing of witnesses;
Therefore the County Court should have carried out a full merits appeal to prevent a breach of Article 6.1; in the alternative, the appellants sought a declaration of incompatibility in respect of s.204(1).

The arguments of Birmingham and the Secretary of State are expressed by Thomas LJ in just two sentences at [19]:
The decision in Runa Begum covered the issue; the decision in Tsfayo did not cast any doubt upon the principle. Even if it did, then this court was nonetheless bound to follow the decision in Runa Begum; it was for the House of Lords to decide that issue.

Consequently, four questions arose:

1. Were the decisions on appeal a determination of the civil rights of the appellants?
2. Had the issue on appeal been determined by the decision in Runa Begum?
3. Should this court in any event leave the determination of the issue to the House of Lords?
4. Does the decision of the Strasbourg Court in Tsfayo alter the conclusion that the issue is determined by Runa Begum?

Thomas LJ gave the only reasoned judgment, which Rimer and Hughes LJJ agreed with.  I will quote fairly large parts of it, but I think that it is a clear and well structured judgment, which does not really need much summarising.

Determination of civil rights

The Secretary of State’s main submission was that Part VII was consistent with Art 6(1), an alternative additional submission was put forward that the decision as to whether a duty is owed under Part VII is not a determination of civil rights within Article 6.  Thomas LJ was able to decide the case in the Secretary of State’s (and Birmingham’s) favour without needing to decide whether that alternative submission was correct and therefore assumed that Art 6(1) was engaged, much as had been done in Runa Begum.

Did Runa Begum cover this issue?

Thomas LJ then turned to consider whether Runa Begum covered the issue on appeal.  At [25] he sets out the considerations to which he has had regard.  He felt that in practice it was “far from easy to draw the distinction advanced” between the finding of suitability in Runa Begum and the findings of primary fact in the instant cases, as a “finding of suitability is itself a finding based on conclusions of primary fact” (point i of [25]).  It followed that ([25.ii]):

There would be considerable complexity in administering a scheme with these distinctions. A scheme which enabled certain factual issues to be subject to a full right of appeal and others which would not be so subject would be too uncertain and too complex.

Furthermore ([25.iii]):

That complexity would be compounded in cases where there are multiple issues before the reviewing officer (as in the case of Ibrahim in the instant appeal). There would then be the danger, as Lord Bingham pointed out at paragraph 10 of Runa Begum, that “there would be a temptation to avoid making such explicit factual findings as [the reviewing officer] very properly did”. Moreover, if the extent of the review by the court was determined by the answer to the question whether a finding of fact was a primary finding, or whether that finding required expertise or whether that finding was determinative, the room for argument and uncertainty would be considerable. The importance of drawing these distinctions would be the more significant if the suggested right of appeal involved the court hearing witnesses in the one type of appeal but not in the other.

The issue before this court does not ultimately depend on drawing such distinctions between types of finding of fact… the issue is determined by an examination of the scheme as a whole. ([25.iv])

In Thomas LJ’s view it was also relevant that ([25.v]):

The additional review which would be provided by the suggested full right of appeal on fact would not in practice be very wide. On an appeal applying conventional judicial review principles, the court cannot substitute its own findings of fact for those of the decision-making authority if there was evidence to support them; questions as to the weight to be given to a particular piece of evidence and the credibility of witnesses are for the decision-maker and not for the court… The context in which an appellate court in accordance with these principles reviews a finding of fact by a lower court is that the finding was that of the judicial branch of the state and therefore an independent and impartial tribunal.

The full right of appeal sought from a review officer on fact might have to be significantly different from an appeal from a court. The housing review officer is part of the executive branch of the state and not the judicial branch. The question must arise as to whether the conventional scope of a full appeal would be sufficient, if the decision made is not made by an independent and impartial tribunal? … In many cases where there is a simple issue of credibility, it is difficult to see how there could be a full right of appeal unless the judge was asked to come to a fresh decision by hearing the evidence; the procedure adopted by the reviewing officer in reaching findings of fact is informal and there are no transcripts of evidence. ([25.vi])

There would then be the danger, as Lord Bingham pointed out at paragraph 10 of Runa Begum, that “there would be a temptation to avoid making such explicit factual findings as [the reviewing officer] very properly did”. Moreover, if the extent of the review by the court was determined by the answer to the question whether a finding of fact was a primary finding, or whether that finding required expertise or whether that finding was determinative, the room for argument and uncertainty would be considerable. The importance of drawing these distinctions would be the more significant if the suggested right of appeal involved the court hearing witnesses in the one type of appeal but not in the other. ([25.vii])

It is quite obvious from what Thomas LJ has said above that ([25.viii]):

There would therefore clearly be significant implications for not only the statutory scheme but for the court and tribunal system, if this court were to hold that a full right of appeal was required on findings of primary fact or on issues of primary fact where the finding was determinative, particularly if the appeal encompassed the re-hearing of evidence.

In any event, the “present scope of the appeal provides a real measure of protection for homeless appellants” ([25.ix]).

Given all of this it is not surprising that Thomas LJ concluded that the issue in this appeal was covered by Runa Begum.

Should the CA leave the matter up to the HL?

Short answer: yes.  Slightly longer answer:

[28] In my view, even if the decision in Runa Begum did not cover the precise point in issue, it would not be right for this court to draw a distinction between different types of fact finding in a scheme so recently considered by the House of Lords. If distinctions are to be drawn, particularly where it is argued that it is akin to counting angels on the tip of pin, then it should be drawn by the House of Lords in a reconsideration of the approach to be taken to the scheme as a whole.  This is an even more powerful consideration given the observations of Lord Hope in Doherty v Birmingham City Council [2008] UKHL 57 [2008] 3 WLR 636 at paragraphs 19-21. Furthermore for this Court to draw those distinctions would make administration of the statutory scheme dealing with homelessness very difficult in the period which elapsed while the inevitable appeal was made to the House of Lords. That would do no service to anyone.

[29] In any event therefore, I would have concluded that in my view this court should not seek to distinguish Runa Begum, but leave the question to be considered by the House of Lords on any application for leave to appeal. But that is not the primary reason for my view that the appeal should be dismissed. It is that the issues on this appeal are within the scope of that decision and that there are independent considerations that support that conclusion.

Tsfayo and Runa Begum

Thomas LJ then turned to question of whether the decision in Tsfayo altered the conclusion that the issue is determined by Runa Begum.  Tsfayo related to a system for backdating housing benefit that had not been claimed at the appropriate time.  In his view the ECtHR had not decided the issue in the instant case in a manner that would require a different answer than simply applying Runa Begum.  At [34] he cited four key reasons:

1. The ECtHR relied on Runa Begum and said nothing to cast doubt on its correctness;
2. Both decisions turned on a very careful examination of the particular statutory scheme that applied;
3. Due to the different rates that local authorities could recoup housing benefit and backdated housing benefit from central government there was a powerful contention that the Housing Benefits Review Board was not independent of the parties;
4. Looking at the schemes as a whole it was readily apparent that a conclusion could be reached that the housing benefits scheme was not compliant with Art 6(1).  This was not the case with Part VII of the 1996 Act.

The appeals were therefore dismissed and the Court refused to grant leave to appeal.

From the Garden Court bulletin:

The ECtHR has invited the observations of the UK government on the application made by Mr Kay to the ECtHR, following his defeat in the House of Lords in Kay v LB Lambeth [2006] UKHL 10. The Court has asked for observations on the question of whether or not Mr Kay had “the opportunity to have the proportionality of [his] eviction… determined by an independent tribunal in light of the relevant principles under Article 8.”

We’ll all need to keep an eye on this one!