Adesotu v Lewisham LBC Case No E40CL183, a decision of HHJ Luba on preliminary issues handed down on 8th February 2019, is so going to the Court of Appeal that the judge (having been satisfied that Ms Adesotu and her household would continue to be accommodated by Lewisham) invited Counsel to agree the route to enable it to get there.
There are two points in this decision about the ambit of s. 204 appeals against homelessness review decisions. Ms Adesotu, a single parent of three children who suffers from depression, had been taken by Lewisham to have refused an offer of accommodation leading to Lewisham discharging their s. 193 duty because she had delayed her decision, had seemed to accept it but raised objections to the offer, and was then taken to have refused the offer because “she refused to confirm that she would move it”.
The main appeal was filed with six grounds. The first two grounds alleged breach of ss 19 and 15 of the Equality Act 2010 respectively, and a sub-ground embraced a similar point which was unrelated to anything done by the reviewing officer or the review decision, but related to the conduct of other officers of the council. The essential point of these grounds related to the way in which Lewisham had assumed that Ms Adesotu had refused the offer (she had delayed her decision and it was not entirely clear whether she had accepted or rejected the offer), and raised issues as to the way in which Lewisham had treated Ms Adesotu’s protected characteristic, ie her disability, during the process.
Lewisham’s position was that, first, the s.204 jurisdiction “while appellate in form, is supervisory in nature” so that the county court cannot reach its own decisions on facts; it is inherent in the jurisdiction under ss 15 and 19, Equality Act 2010 that there are fact-finding issues, eg whether the applicant has a disability, the causal connection between the disability and the treatment, and proportionality issues. They also argued that these grounds of appeal did not “arise from” the decision.
On the first point, HHJ Luba agreed with Lewisham, despite the existence of s.114, Equality Act 2010 which vests the county court with jurisdiction to determine such a claim. The learned judge said, at (70):
If a statutory appeal constituted “a claim” it would escape those strictures of the 2010 Act. As Mr Underwood submitted, the ‘defendant’ would by that means be deprived of such protections as offered not only by the 2010 Act but also by access to the provisions of the Civil Procedure Rules which relate only to claims. There would be no particulars of claim, no defence, no disclosure, no witness statements, no witnesses, and no access to facilities such as the ability to apply for summary judgment in favour of a defendant. (footnote ref to CPR 24) Those points were unanswerable.
The other point made by the judge was that the Court’s powers on a s.204 appeal (ie vary/quash/confirm) are inappropriate where the real issue was about whether the council’s powers and procedures (and, presumably, practices) had been discriminatory. Further, although s.113 brings within the ambit of the Act a claim for judicial review, a statutory appeal was not a judicial review and the judge had no jurisdiction to make findings of fact.
The ambit of the phrase “arising from” was not strictly necessary for the decision, but that did not deter HHJ Luba from entering into this foray on which there have been conflicting decisions to my knowledge, after Lewison LJ’s obiter postscript in Panayiotou (our note), at (90), where he doubted the jurisdiction in s.204 appeals in relation to contracting out matters. In this matter, the issue had been hoped to have been resolved by the Court of Appeal in Alibkhiet, but, as it turned out, there was no point taken there about the lawfulness of the policies. HHJ Luba found the arguments to be finely balanced and was “anxious that the present tension of the authorities on these issues should be resolved” (96). He held, at (97), that
In the event, and much influenced by the dictum in Panayiotou, I am satisfied that a reviewing officer is entitled (particularly in the absence of any contrary point having been expressly raised) to treat any policy or practice of the council applied to the applicant prior to his/her own decision as lawful. As in all public law cases, there must be a presumption that a public authority behaves and has behaved lawfully (the ‘presumption of regularity’).
While waiting for further guidance from the CA, the judge suggested the following as the litmus test: can “… the ground of appeal in question – often formulated, as here, as “The Respondent…” failed/erred/breached/misdirected/etc – can properly be re-written as: “The reviewing officer…”; “The reviewing officer’s decision…”; or, perhaps, “The procedure on review…”. If not, the point taken cannot be said to be a point arising from or out of the reviewing officer’s decision” (99).
This second ground has caused quite a bit of consternation that I’ve seen on twitter so far, and (for myself) I think HHJ Luba is wrong, but, as he says, it is finely balanced. I’m with Wade and Forsyth’s version of truth, that these statutory provisions should be given a wide reading. One can only fear what Lewison LJ is going to make of it when, almost inevitably, it comes before him again, and potentially on its way to the SC.