P v Ealing Borough Council (2013) CA Civ Div 05/11/2013 [Not on Bailii yet. Note on Lawtel]

This was Ealing’s appeal from a s.204 appeal brought by Ms P. At the s.204 appeal, the Circuit Judge had varied Ealing’s review decision that Ms P was intentionally homeless and substituted a decision that she was unintentionally homeless.

Ealing’s appeal was on the basis that the CJ should instead have remitted the matter to the Council for a fresh review decision.

Ms P, who is disabled and uses a wheelchair, had an assured short hold tenancy of an adapted property.  She alleged that a near neighbour had sexually assaulted and then raped her. She made a statement to the police as per s.9 Criminal Justice Act 1967. The police investigated the allegations, but no prosecution was brought. Following this Ms P’s relations with neighbours deteriorated and she claimed to have been harassed and threatened.

Ms P appealed as homeless to Ealing, on the basis that she had relatives in the area. Ealing decided that the current risk of violence or the threat of violence directed at Ms P was low and that Ms P was no homeless. On review, Ealing’s officer decided that on the basis of all the information, Ms P’s allegations of sexual assault were unproven, and that she had accommodation reasonably available to her and was intentionally homeless from it.

Ms P then appealed under s,204 Housing Act 1996. The Judge had regard to the s.9 statement and decided that the Council had failed to take that statement into account as a relevant matter. The review officer’s view that Ms P’s situation was safe was not a permissible view for the officer to take. The review decisions as quashed and the CJ held that there was no prospect of the Council properly deciding that Ms P was anything other than not intentionally homeless, so varied the decision accordingly.

Ealing’s appeal to the Court of Appeal was on the grounds that while it accepted the quashing of the review decision, the CJ had gone too far in reaching his own conclusion, based on materials that were not before the Council.

The Court of Appeal held that the question for the Judge below was whether, if the local authority taken account of the s.9 statement as a relevant consideration, there was a real prospect of it properly finding that Ms P was unintentionally homeless. (Tower Hamlets LBC v Deugi [2006] EWCA Civ 159).

The Council was the fact finder and decision maker. It had not had the opportunity to consider the s.9 statement. That this failure might be its own fault was irrelevant.

The s.9 statement had not persuaded the CPS to bring proceedings and there was clearly potential further investigation to be conducted into the matter.

The Judge below had not been correct to conclude that Ms P’s statement was so compelling there was no chance of a rational Council decking that the allegations were not substantiated in fact and so it was reasonable for Ms P to remain in that property. The s.9 statement was untested and the Council had not had the opportunity to consider or investigate the allegations. The CJ had been wrong to vary the decision.

Matter remitted to the Council for a fresh decision.

Comment

While the principle of the Council as decision maker is clearly correct, this judgment does cause a bit of eyebrow raising in the finding that it was irrelevant that a failure to consider a relevant document or information was, or may be, the Council’s own fault.

The prospect then is that a s.204 appeal, based upon the Council’s failure to address certain relevant information that was before it, could never result in the Judge varying the review decision, simply because the Council had actually failed to consider the relevant information, even though put before it. Quashing and remitting is the best that could be achieved.