17/02/2014

Discharge of duty by helping eviction.

This sounds like a rather odd case, noted on the Garden Court bulletin. It is a refusal to grant permission for Judicial Review of a Council’s refusal to carry out a review of the method it had decided upon to discharge its full housing duty.

Still with me? Right.

R (Miah) v Tower Hamlets LBC [2013] EWHC 4434 (Admin) [note on the Garden Court bulletin]

Ms M applied as homeless to Tower Hamlets. She had the beneficial interest in a property (not the legal title) and the property was tenanted. TH’s initial decision, that she was not homeless because she had the house, was eventually quashed in a s.204 appeal. The County Court decided that the house was not ‘available’ to Ms M because it was tenanted.

Tower Hamlets then accepted a full housing duty but decided it would fulfil that duty by giving advice and assistance to Ms M to secure her own accommodation by obtaining possession against the tenant of the property.

Ms M asked for a review of this decision, but Tower Hamlets declined to carry out a review. Ms M issued a judicial review claim of this refusal to review.

According to the Garden Court bulletin, the High Court refused permission on the basis that:

The claimant could pursue the county court appeal or put new information to the council indicating why she could not proceed with an eviction as it had proposed.

 

[Update]
I’ve now seen a transcript. It appears that it is was accepted by both parties after discussion in the hearing:

“that the decision letter under challenge of 28 May this year is a decision in respect of which the claimant has a right of appeal to the County Court on a point of law. Though, as the Defendant declined to review the original decision, it cannot be a case where the claimant can say that she is dissatisfied with the decision on the review because there was no review, it can however be characterised as a case where no review had been carried out and notified within the prescribed period.”

That answers my initial puzzlement about this decision, given that s.204 provides:

(1)If an applicant who has requested a review under section 202—
(a)is dissatisfied with the decision on the review, or
(b)is not notified of the decision on the review within the time prescribed under section 203,he may appeal to the county court on any point of law arising from the decision or, as the case may be, the original decision.

I could see no provision for a s.204 appeal of a refusal to conduct a review, just of the decision on review, or a review decision not being made in time. But it appears to have been accepted here that a refusal to conduct a review amounted to ‘not notifying’ the applicant of the review decision in the prescribed time.

On that basis, the High Court decided that there was another, more appropriate route for a remedy. Despite Ms M arguing that the best she could get from a s.204 appeal was a determination that the decision refusing to carry out a review was an error of law, but that would not get her the review requested, the High Court accepted that there was little else that it could order too.

So, apparently a refusal to carry out a s.202 review counts as not notifying the applicant of the review decision within the time prescribed and the appropriate route is s.204. ]

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.

9 Comments

  1. muller

    what happened to….202 (4)On a request being duly made to them, the authority or authorities concerned *shall* review their decision

    Reply
    • Giles Peaker

      Is a decision on how to discharge duty even subject to s.202 review, though? Where the issue is not suitability of accommodation? (The applicant was in temporary accommodation).

    • muller

      yup. see what you mean.

  2. Stephen O'Neill

    I think it might.

    There is a right to request a review of any decision of a local housing authority as to what duty (if any) is owed to him. This includes a right to request a review of a decision that a duty had been discharged.

    In Warsame v Hounslow LBC (2000) the court of appeal said that the language of s.202(1)(b) was apt to apply not only to a decision that the local authority no longer owed a duty – because the occurrence of some event had caused the duty to cease – but also to a decision as to whether such a material event had indeed occurred. Accordingly, both were decisions as to what duty, if any, was owed within that section.

    In other words, a review of a decision that a duty once owed, is no longer owed.

    It seems to me that a decision to the effect that the duty, once owed, is no longer owed because appropriate advice and assistance has been provided, is a decision that can be reviewed.

    Reply
    • Giles Peaker

      But here, it was the manner in which the duty was to be discharged. The duty, it was agreed, was ongoing. (I may not have been clear about that in the post). Specifically, the decision was ‘we shall put you in temporary accommodation and give you assistance in evicting the tenants from the property in which we consider you have a beneficial interest. Once that property is available to you, our duty will end’.

    • muller

      yes it was the manner in which the duty was being discharged. the app wasn’t going to ask for a review as to the actual decision that full duty owed. in passing isn’t it advice and assistance with any action *s/he may take*? ie, eviction. what if s/he didnt want to take possn proceedings v tenants….and therefore didn’t need the assistance.

  3. Stephen O'Neill

    Do you know what the beneficial interest was?

    Reply
    • Giles Peaker

      Not a clue. And apparently somewhat contested.

  4. banjomoomintoog

    This was/is all a bit of a muddle. There was indeed a dispute about whether Ms M had a beneficial interest in the house. LBTH asserted that she did, and that unless she accepted their offer of advice and assistance they would regard their s.193(2) as having ceased. She wrote challenging their decision, but there was a dispute about whether her letter amounted to a request for review of the cessation-of-duty decision. Thus the refusal to review, dated 28 May. Contrary to the deputy judge’s suggestion, it was not accepted that there was a right of appeal against the refusal to review – only a direct right of appeal against the original cessation-of-duty decision (s204(1)(b)). And so there is an application for permission to appeal underway. Hidden away behind all this confusion the case does raise one important point. Can you JR an authority’s refusal/failure to conduct a review rather than pursuing the right to appeal directly against the first-time decision? Ms M contends you can – especially if you want to put in new evidence, but even if you just want to get a senior officer to reconsider things.

    Reply

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