With thanks to Robert Latham, we have the transcript of an interesting section 204 homelessness appeal brought by Ms Shacklady against Flintshire CC in the Mold County Court before HHJ Gareth Jones (07.05.2010).  The substance of the appeal concerned Ms Shacklady’s appeal against Flintshire’s decision to exercise its discretion to use the local connection provisions of the 1996 Act to refer her back to Conwy CBC and other matters; but HHJ Jones never got to the substance because there was an important procedural point taken by Ms Shacklady concerning the fact that Flintshire had contracted out the review of their decision to a Mrs Ros Tyrrell, described in correspondence as “Reviewing Officer on behalf of Flintshire County Council”.  Mrs Tyrrell issued a minded to letter on the basis of additional information and then a s 202 review decision.  The case acts as a reminder to applicant’s advisors always to check the basis for the contracting out authorisation – congratulations to Shelter Cymru and Robert Latham for pursuing this point, when it perhaps did not appear obvious initially.

HHJ Jones dealt with two of the appeal grounds in his judgment as a preliminary issue.  These were (a) the review decision was a nullity, and (b) the reviewing officer, Mrs Tyrrell, had no lawful authority to conduct any review and Flintshire had made no lawful authorisation of its review function to her.  Let me indulge in some ground clearing – we know that s 70, Deregulation and Contracting Out Act 1994 enables a minister by order to allow a function to be contracted out “… as may be authorised in that behalf by the local authority”; such an authorisation must be for a period not exceeding 10 years (s 69(5), 1994 Act); the Local Authorities (Contracting Out of Allocation of Housing and Homelessness Functions) Order 1996, SI 1996/3205, as interpreted in de Winter Heald (links to our note), entitles local authorities to contract out their reviews function in principle.

The issue for Flintshire was whether they had followed the correct procedure for contracting out their review function to Mrs Tyrrell.  Flintshire were only able to produce a letter from the “interim head of customer and housing services” confirming an interim arrangement enabling Mrs Tyrrell to carry out a backlog of outstanding reviews for a remuneration of £250 pd.  As HHJ Jones noted, “No limitation of time appears in the document and this appointment is not for a specified period”.  Ms Shacklady argued that there had been no proper contracting out as a matter of procedure and time limit.

The first issue here is whether the interim head had sufficient authority to contract out or whether it was required to be done by the council and/or by formal resolution of the council.  This is entirely free from authority (although there is an interesting article in the Journal of Housing Law that I’ve come across on this point – see (2010) 13(2) JHL 24-5, mercifully short) but in this case was probably dealt with by Flintshire’s constitution and another document (amazingly only produced on the first day of the appeal hearing) which effectively appeared to give the officer the proper authority, although nothing turned on that point.

The second issue was effectively conceded by Flintshire in accepting that they were unable to locate any written documentation in relation to Mrs Tyrrell’s appointment because “… it is possible that there was no such document in the first place” (I would put an exclamation mark after that, but I suspect that this may well have occurred in a lot of cases).  The argued for an implied authority, but that didn’t wash with HHJ Jones, who said that they could not “remotely comply with” s 69(5) without such a written record and there was no time limit attached to any authorisation anyway.

Flintshire argued, drawing on the judgment of Lord Hailsham in London & Clydeside States Ltd v Aberdeen DC [1980] WLR 182, that this was at the lower end of the spectrum of procedural defects so as to enable the court to find that Mrs Tyrrell’s review was not a nullity.  HHJ Jones disagreed because: the absence of a written record or contract is serious; English ODPM guidance indicated its importance at least as a matter of good practice in Wales – as HHJ Jones remarked: “How, if at all, does this local authroity monitor good performance by Ms Tyrrell if there is no written framework document of authorisation?” (bang-on point, I’d say); without such a document the 10 year time limit could not be met; the integrity of the regime set by Parliament should be protected and it did “expect, in my judgment a Local Authority to obey the law to the minutest detail, … by giving a limited authority”.

Ms Shacklady went for a variation of the s 202 decision but, as there was no sufficient evidence about where she had been living for the past months and she may not have lived exclusively in Flintshire, there was a question still to be addressed.

Note to self: check that authorisation …

Oh, and one last thing, praise to HHJ Jones for his sensitivity in giving judgment, with Ms Shacklady and her two kids in attendance (he began by telling her that she had won).