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13/11/2011

No facts please, we’re reviewing

Bubb v London Borough of Wandsworth [2011] EWCA Civ 1285

In an appeal under s.204 Housing Act 1996, should the County Court determine disputed factual issues?  In this second appeal, the Court of Appeal effectively holds not.

Ms Bubb was in temporary accommodation after Wandsworth accepted the full s.193 housing duty. She was accommodated at a property called Trayfoot Lodge but after a year, in March 2009, she was moved to a property called Clarkson House. In August 2009 Wandsworth decided to offer permanent accommodation in a property called Alfreda Court. Wandsworth’s case was that a letter was sent, by hand, to Ms B at Clarkson House on 11 August, setting out the ‘final’ offer and setting out that this “is a final offer for the purposes of section 193(7) …”. It further informed Ms Bubb that, if she thought that Alfreda Court was unsuitable, or wished to refuse it, she had the right to seek a review within 21 days of the offer.”

Ms B denied having received that letter of 11 August. She relied on the fact that an identical letter dated 5 August was sent to Trayfoot Lodge, which it was accepted she had not received. There were subsequent telephone conversations between Wandsworth officers and Ms B, and she inspected Alfreda Court on 25 August. She refused the offer in a meeting with a Wandsworth officer on 2 September. Wandsworth then discharged duty under s.193(7). All Wandsworth’s letters after 11 August were sent to Trayfoot Lodge, not Clarkson House, including the letter discharging duty.

Ms B requested a s.202 review. An initial review was quashed, then a Mr Adelaja carried out a new review. The review decision in March 2010 addressed both the suitability of the property for Ms B and the issue under appeal, whether she had received the letter of 11 August 2009 including the statutory warning of the consequences of refusing. The review found that the property was suitable and that Ms B had received the letter of 11 August. Ms B appealed to the County Court.

There were a number of grounds of appeal, all dismissed, but most were given full reasons in the Judgment. On the present issue, the County Court Judge simply stated that the Review officer was entitled to find that Ms B had received the letter and had set out his reasons for so finding.

Ms B appealed to the Court of Appeal, having been given permission at oral hearing to appeal “against the Judge’s refusal to quash the finding in the Review that Ms Bubb had received the 11 August letter – and hence to appeal against his refusal to quash Mr Adelaja’s conclusion that Wandsworth could rely on section 193(7).”

Ms B argued that i) the County Court Judge should have determined for himself the relevant facts relating to the issue of whether or not she had received the 11 August letter and in any event the Judge should have received oral evidence; and ii) that “even if the Judge should have approached the issue on a classic judicial review basis, he was wrong to conclude as he did.”

On i) Ms B argued that the assessment of whether or not she had received the letter was not an assessment involving a value judgement for Wandsworth, but a matter of hard fact to be determined by the Court.

The argument was based on R(A) v Croydon London Borough Council [2009] UKSC 8, in which the Supreme Court determined that age assessment was a question of fact for the Court in s.20 Children Act Judicial Review proceedings.

However, the Court of Appeal were not impressed, pointing out that the decision in that case was based on the wording of the statute.

While under Part VII Housing Act 1996, a number of what could be described as value judgements were assigned to the Local Authority, such as whether someone was homeless or in priority need, it was at first sight the case that a ‘true of false’ decision on something like whether the applicant had received notification under s.193(7) was not expressly assigned to the Authority. However the division between value judgements and true/false factual issues was not so clear cut. Assessment of homelessness involved factual questions and assessment of whether a notification was received might well involve value judgements on the honesty or reliability of the applicant.

But the issue was decided by s.204(1) – any appeal to the County Court from a s.202 review is limited to a point of law. There was no jurisdiction for the Court “to set itself up as a finder of the relevant primary facts for itself.”

The County Court jurisdiction was “in substance the same as that of the High Court in judicial review”, Runa Begum v Tower Hamlets London Borough Council [2003] UKHL 5. Lord Bingham in that case had held that a review decision may be quashed:

“not only … if it is held to be vitiated by legal misdirection or procedural impropriety or unfairness or bias or irrationality or bad faith, but also if there is no evidence to support factual findings made or they are plainly untenable or … if the decision-maker is shown to have misunderstood or been ignorant of an established and relevant fact.”

The County Court Judge did not and should not have set himself to establish whether Ms B had received the letter. The County Court judge’s role was rather simply asking himself whether the Review’s finding that she had received it should be quashed on one or more of the grounds identified by Lord Bingham, above. Ms B’s first argument failed.

On whether the Judge should have heard oral evidence, Ms B submitted that even if the appeal hearing was effectively a judicial review, this should not have prevented the Judge hearing oral evidence and in the circumstances this would have been the appropriate course.

While it is, as a matter of principle, open to a Judge in a judicial review to permit parties to adduce oral evidence, following O’Reilly v Mackman [1983] 2 AC 237, this should only be in exceptional cases. The function of Judicial Review is review, rather than a fresh decision. Even when it is an issue of evidence as to factual findings made or not made in a decision, there should only rarely be a need for live witnesses. Even documentrary evidence not before the original decision maker is questionable. “However, particularly given the nature of hearings under section 204, the wide terms of section 204(3), and the good sense and experience of the County Court Judges, nothing in these observations is intended to cut down the flexible and practical approach to section 204 appeals adopted by the County Court.”

In the present case, there was no conceivable ground for suggesting that live evidence should have been heard by the Judge. The review was detailed and there was no suggestion of subsequent evidence having come to light.

On ii), was the Judge wrong to reach the conclusions he did?

Ms B argued that the Judge should have quashed the decision that she had received the 11 August letter on the basis of the evidence that was before the review officer. She also argued that the Judge’s very brief discussion of the issue should lead to this appeal being successful.

Held, on the brevity of the judgment:

I do not consider that that would be a good reason for allowing this appeal. If this court overturns a full and careful judgment in a judicial review case, because, on one of many points he had to resolve, the Judge merely said that the primary fact-finder was entitled to find a disputed fact in the way that he did, it would send out a most unfortunate message. There is currently much concern about the increasing length of judgments. This is a problem caused by a number of factors, but a significant factor is a worry on the part of the judgment-giver that he may be criticised on appeal for not dealing, often in some detail, with every point that has been raised.

While a party should know why the Judge reached the conclusions he or she did as a fundamental principle, there was no need for the judgment to do into more detail that this principle required. Here the Judge had decided that a clear conclusion by a primary fact-finder, set out in detail, was a conclusion that they were entitled to reach on the reasons given. There was no need to repeat the facts and arguments in the judgment.

Having said that, I accept that, if, as in this case, the judge sets out no independent reasoning of his own, there is a greater likelihood of an appellate court giving permission to appeal, especially if the applicant is able to cast real doubt on the reasoning or conclusion of the original fact-finder. Having read the full judgment giving permission to appeal, I strongly suspect that the complete absence of any independent reasoning on the part of the Judge on the point at issue was a significant and understandable factor in Sedley LJ’s thinking. I intend no criticism of the Judge in this connection, but, with hindsight, it would have been better if he given a little more reasoning on this point in his judgment.

In a second appeal in a Part VII matter, the Court of Appeal’s function is normally to review the s.202 decision, rather the s.204 appeal decision, Royal Borough of Kensington & Chelsea v Danesh [2006] EWCA Civ 1404. So the appropriate course in what remained of this appeal was to decide whether the review officer’s decision that Ms B had received the 11 August 2009 letter could stand.

In exercising the reviewing function the Court would ask itself the questions set out by Lord Bingham, above, specifically “there [was] no evidence to support factual findings made or they [were] plainly untenable or [whether] the decision-maker is shown to have misunderstood or been ignorant of an established and relevant fact.” The Judge below had said “that Mr Adelaja, who conducted the section 202 review, was “the arbiter of fact”, and the “weight to be given to the evidence … is for him alone””. This might be hyperbolic in the latter part as the Court in a s.294 appeal can review and if necessary reverse finding of fact.

In addition, and following Laws LJ’s suggestion of a sliding scale of review, depending on the nature and gravtiy of what was at stake, R v Secretary of State for Education and Employment ex p Begbie [2000] 1 WLR 1115, a reviewing Court should look with some care at the basis for the factual findings, given the importance for Ms B and her son and the ‘one off’ nature of the case for Wandsworth.

The Court of Appeal judgment then details Ms B’s arguments on the facts and addresses itself to the review decision. The finding is that:

in the light of his careful investigation and the reasons which he gave (as summarised in paras 38-42 above), I have reached the conclusion that [the review officer] Mr Adelaja’s decision that Ms Bubb received the 11 August letter cannot be impugned. To revert to Lord Bingham’s test, it cannot be suggested that “there [was] no evidence to support” Mr Adelaja’s conclusion, or that the conclusion was “plainly untenable”, or that he “misunderstood or [was] ignorant of an established and relevant fact”.

Appeal dismissed.

I understand that Ms Bubb has applied for permission to appeal to the Supreme Court. More information on that when we get it.

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.

1 Comment

  1. chief

    By way of some tidying up, the Supreme Court refused PTA as far back as 31/05/12 – Lords Walker, Reed & Carnwath.

    Reply

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