12/04/2011

Never apologise, never explain

Akhtar v Birmingham City Council [2011] EWCA Civ 383 [not on bailii yet, we’ve seen a transcript]

When a Local Authority accepts the applicant’s case on a review under s.202 review under Housing Act 1996, is there or should there be a duty to give reasons why the applicant was successful and on what objections they were not successful?

This was the combined permission and substantive hearing of a second appeal from a s.204 appeal to the County Court.

Ms Akhtar was a homeless person. Birmingham had accepted a full duty following her application. Birmingham had offered a permanent property at
41 Twickenham Road, in the Kingstanding area of the city. This was a 3 bed and 2 living room property. Ms Akhtar lives with her seven children aged between 12 and 21. She viewed the property then refused it as unsuitable. Birmingham confirmed the offer as suitable and Ms A sought a review of that decision, giving three reasons why the property was not suitable.

The first was that Twickenham Road was too small. The second was that it was too far from the facilities her family needed. It was said, in particular, that the Appellant had been living for some time in temporary accommodation in Moseley, and her children were settled in local schools; one of her daughters was in a GCSE year; and one of her sons had special needs; her children also attended the local Islamic school at the mosque in Balsall Heath. The third was that she would feel isolated and unsafe in the area: she saw no Pakistani people there.

Birmingham decided on review that the property was not suitable. The decision letter to Ms A said simply that and that she would be made a further final offer. No reasons why the property had been found to be not suitable were given.

On the same day, the review officer recorded in a file note:

Offered 3 bed parlour type. Household mum + 7 children. NB Eldest daughter is now 21, requires room of her own under new Allocations Policy. As such, family need a property with 5/6 bedrooms under this policy. Property offered is not large enough to discharge duty to this household in accordance with Allocations Policy…

Birmingham made a further offer of a property at 45 Hartley Road, also in Kingstanding. This was a 4 bed and 2 living room property. Ms A viewed the property and refused it. Birmingham determined that it was suitable. Ms A sought a review through her solicitors, giving as her reasons that:

the property was too small for the Appellant’s family; the property was too far from the Appellant’s “established areas of choice” since the Appellant and her family were currently living in the Moseley area of the city and her children were well settled in their local Islamic schools; the Appellant did not feel safe in the area, as she did not see any Pakistani people there, and she felt that her family would be isolated and unsafe in the area

The letter added “You will have on record that the Housing Department have previously offered our client property in the Kingstanding area of the city and deemed it unsuitable; in the circumstances we fail to see how the current offer could have lead [sic] you to discharge your duties in this matter.”

Birmingham wrote to say it was minded to uphold the decision and that the Twickenham Road property had only been considered unsuitable because if its size. An apology was made if the previous review letter had not made that clear. After a further exchange, in part on the issue of whether the previous review decision had been made solely on the issue of size, Birmingham upheld the decision.

Ms A appealed, on amongst other grounds

the Respondent failed to provide reasons as to suitability and reasonableness in the offer letter of 12 August 2009 and the letter of 17 August 2009; and the procedure was unfair because the Appellant did not know the Respondent’s reasoning at the time she refused the offer of Hartley Road and was under the impression the Respondent would accept the same objections as had been made in relation to the Kingstanding area on the previous offer of Twickenham Road.

The appeal was dismissed, in part on the basis that “it was the Appellant’s decision to take the risk whether the review of Hartley Road would succeed; there is no statutory duty to give reasons for a favourable decision; the need for reasons is related to the opportunity to appeal, and it is only if the applicant is dissatisfied with the decision upon review that he or she has an appeal under section 204(1)(a) of the Act”

Ms A appealed to the Court of Appeal. She argued

First, the Judge was wrong to conclude that there was no justification for implying a duty to give reasons in the Twickenham Road review decision letter of 5 May 2009 and the Hartley Road offer letter of 12 August 2009. Secondly, the Judge was wrong to state that neither letter contained a decision amenable to challenge by way of review and appeal under the Act.

She argued that “(1) there is no general duty to give reasons for administrative decisions; (2) in an appropriate case, a duty to give reasons will be implied at common law where necessary to ensure fairness; (3) the categories of case in which the common law will imply such a duty are not closed or fixed; (4) there is no general principle other than fairness to determine whether reasons should be given; (5) it is necessary to look at the features of each case to see whether there is a duty or not; (6) the features of the present case show there was a duty to give reasons in the letters of 5 May 2009 and 12 August 2009.”.

Propositions 1 to 5 were accepted by Birmingham, but not the 6th.

Ms A further argued that the first review letter of 5 May 2009 “was a decision within section 202(1)(b) of the Act and capable of being appealed to the County Court under section 204(1)(a)”, apparently on the basis that she was dissatisfied with the lack of reasons. Alternatively, if the review letter had said the Twickenham Road property was unsuitable by reason of size and otherwise suitable, that decision as to suitability would be appealable.

Next, she argued that:

unless there is an obligation to give reasons in a successful review decision letter and an offer letter, the housing authority could avoid with impunity, at the stage of those letters, its obligation to take into account all relevant matters. Indeed, Mr Nicol [for Ms A] observed, that is precisely what the Judge found had happened in the case of Hartley Road. [the initial decision on the second offer]

While Part VII did not set out a general duty to give reasons, it remained an issue for a potential common law duty. In this case there was an unfairness in the lack of reasons being given which had left Ms A uninformed about her position on the second offer, as she believed the offer had been, in effect made in error because of its location.

Further, the letter setting out the offer of either property, and significantly the second, did not set out the reasons why the offer was considered suitable. This should be done as a matter of principle.

Held:
The only issue to be determined was whether on the facts of the case, the omission of reasons in the first review decision and/or the second offer letter was so unfair as to be a breach of Birmingham’s common law duty.

It was unusual that Ms A claimed “a legal entitlement to be given reasons for the review decision in respect of Twickenham Road, not so that she could have challenged that review, but so that she could better deal with a separate and subsequent offer of a quite different property”.

No fault could be found with the decision of the Judge below. The facts of the case were not capable of giving rise to a common law duty.

1. There was no evidence that the first review officer had even considered the suitability of the location, having decided the size was unsuitable. The appellant had not argued that there was a duty to consider each and every objection to the suitability of the property, having decided for the applicant on one ground. There was no basis for such a duty.

2. There was no authority for the proposition that the issue of location could have been appealed, despite the review being decided in the applicant’s favour.

3. “It is trite that, in the case of appeals from one court to another, the appeal is against an adverse order of the court and not against the reasoning underlying a favourable order. I can see nothing in the Act to suggest that a different principle applies in relation to decisions of a housing authority appealable on a point of law under section 204.”

4. “section 203(4)(b) of the Act does not require reasons to be given in the hypothetical situation postulated by Mr Nicol. Confirmation of the “original decision on any issue” within section 203(4)(b) refers to the resolution of a review against the applicant. It does not refer to the confirmation of a decision which plays no part in the resolution of the review in favour of the applicant”.

5. There was no reason why a letter offering a property should set out the reasons why it was considered suitable. “It is obviously implicit in every such offer that the housing authority considers the property to be suitable in all material respects, including location, size and configuration”.

6. It was not reasonable for the appellant to assume that she had been successful on all grounds of her objections to the first offer. The appellant could easily have sought confirmation of that view, but did not.

7. “any potential unfairness to the Appellant was, in any event, avoided by the prominent warnings in both letters of the consequences of refusing a final offer, and notification of the ability to accept the offer and still to challenge it by way of review”.

Permission given but appeal dismissed.

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.

5 Comments

  1. Stephen O'Neill

    In Save Britain’s Heritage v Number 1 Poultry Ltd [1991], Lord Bridge of Harwich said “…the decision must be such that it enables the appellant to understand on what grounds the appeal has been decided and be in sufficient detail to enable him to know what conclusions the inspector has reached on the principal important controversial issues.” That was a planning inspectors decision but the same is surely true of review decisions.

    There are in truth two separate questions: (1) were the reasons adequate? (2) If not, were the interests of the applicant substantially prejudiced thereby? The single indivisible question, in my opinion, whenever a Part VII decision is challenged on the ground of a failure to give reasons, where the statute is silent on whether reasons should be given, is whether the interests of the applicant have been substantially prejudiced by the failure to give reasons. I should expect that normally such prejudice might arise from one of three causes. First, there would be substantial prejudice to an applicant where the reasons for the decision are so obscurely expressed as to raise a substantial doubt whether the decision was taken within the powers of the Act. If the decision to allocate a particular property was taken outside of the allocations scheme then what is to prevent the same happening again? Secondly, there may be substantial prejudice where the considerations on which the decision is based are not explained sufficiently clearly to enable him reasonably to assess the prospects of succeeding in an application for some alternative accommodation. If he won on a suitability argument but not reasonableness of acceptance, or vice versa, should he not be told so that he can address his mind to those considerations when deciding whether to accept a future offer of accommodation? Thirdly, an applicant or his advocate may be substantially prejudiced, particularly if the reasons relate to a policy, if the decision is not explained sufficiently clearly to indicate what, if any, impact they may have in relation to the decision of future applications.

    Reply
    • NL

      To play devil’s advocate, Save Britain’s heritage v 1 Poultry concerned a planning appeal which was a) to a third party – the Secretary of State and b) where there was a statutory duty to give reasons, and the only issue was the extent and detail of the reasons to be given. Otherwise, if your view held true, you’ve just invented a general duty to give reasons. Also c), this is not a situation where one side or the other may be looking to judicially review the decision making, as per the planning appeal.

      The substantial prejudice test was applied by the Court of Appeal is this case. They decided there wasn’t one.

      On your examples – first, where is the substantial prejudice to the applicant if the property is awarded outside the allocation scheme? Unlawful, perhaps, but the prejudice would be to others, not the applicant.

      On the second, given that the Authority is supposed to offer properties it thinks are suitable on each occasion, then there can logically be no benefit to the applicant in knowing reasons for past success on review for future applications. The same logic applies to the third example. In any event, all your examples would require the decision-maker to consider all the reasons advanced for the property being unsuitable. As set out in the judgment, there is no duty to do so if one reason is sufficient. So, in this case, it was accepted that only size was considered.

      Not that I necessarily disagree with you, just playing with the counter-argument.

      Reply
  2. Alex

    I think this decision has to be right. If the local authority had to give reasons for upholding an applicant’s review, to assist the applicant in deciding how to deal with future offers of accommodation, then when it made a second offer, it would be drawn into arguments not just over whether the second offer was suitable/reasonable for the applicant to accept, but also over whether it fell within the ‘ratio’ of the original decision. This can’t have been Parliament’s intention. Suppose a s.202 reviewer decides that a particular property is unsuitable by virtue of being in area X. A second property is then offered a mile-and-a-half away. There could then be an dispute as to whether the second property is in area X or not. This would be semantic and pointless – the issue is whether it is suitable. But if the applicant is entitled to rely on the reasons given in an earlier review decision, the local authority would presumably have to show that it would not be covered by the reasoning of the earlier review – ie that the property is not in area X.

    In any event, doesn’t the fact the applicant could accept the offer and still request a review undermine the argument the s/he needs to know whether a review would be successful or not so she knows whether to accept?

    Reply
  3. Stephen O'Neill

    A misconception about decision making is that decisions are made in isolation from each other: you gather information, and make a choice, without regard to anything that has gone before. The fact is, decisions are made in a context of other decisions. The typical metaphor used to explain this is that of a stream. There is a stream of decisions surrounding any possible decision, many decisions made earlier have led up to this decision and made it both possible and limited. Many other decisions will follow from it.

    Another way to describe this situation is to say that most decisions involve a choice from a group of preselected alternatives, made available by the previous decisions we have made. Previous decisions have made operable certain alternatives and made inoperable others.

    For example, when one seeks advice on whether or not to accept a property, or a solicitor seeks an opinion on merit, that advice or opinion has been enabled by many previous decisions, either case law or local knowledge of how favourably an authority is likely to react to a decision that accommodation is unsuitable or unreasonable to accept the offer. In that way our previous decisions have constrained our subsequent ones and highlighted others: you can’t decide to refuse to accept a property because there is no room for a pony. By knowing why previous cases have been won or lost, you have both enabled and disabled a whole series of other decisions. In that way the number of successful challenges to decision-making decreases, applicants (or customers as they are now known up my end) know where they stand and advocates can give fair and informed advice on the likely outcome of a particular decision. Every decision therefore (1) follows from previous decisions, (2) enables many future decisions, and (3) prevents other future decisions.

    A duty perhaps not, but it surely makes sense.

    Reply
    • NL

      All true, but not enough to found a duty, I suspect, or not even enough to found an argument on substantial prejudice.

      Reply

Leave a Reply (We can't offer advice on individual issues)

This site uses Akismet to reduce spam. Learn how your comment data is processed.