Adesotu v Lewisham London Borough Council (2019) EWCA Civ 1405
We first saw this case as a county court appeal (our note here) where the central issue was whether Equality Act 2010 issues could be raised and decided within a section 204 Housing Act 1996 homelessness appeal. HHJ Luba QC held that they could not, and the matter went to the Court of Appeal.
Ms A’s s.204 appeal had included grounds that
The Respondent breached section 19 of the Equality Act 2010 by applying provisions, criteria or practices that are discriminatory in relation to the Appellant’s disability, and which cannot be justified.
The Respondent breached section 15 of the Equality Act 2010 by treating the Appellant unfavourably (deciding that the section 193 duty was discharged) because of something arising in consequence of her disability (her delayed and equivocal decision as to whether to accept the accommodation)
The Respondent breached section 149 of the Equality Act 2010 (by failing to accommodate the Appellant’s disability by allowing her time to reach a decision as to whether to accept the offer and/or by allowing her time to take legal advice (in breach of sub-sections 149(3)(a)-(b), 149(4) and 149(6)).)
Two issues arose at first instance. 1) Whether the county court had jurisdiction under a s.204 appeal to consider section 15 and 19 Equality Act claims for unlawful discrimination, and 2) the ‘failure to accommodate disability’ ground was not a point ‘arising from’ the decision of the review officer (and in addition, the county court in a s.204 appeal has no juridiction to make findings of fact.)
The Court of Appeal dealt with the Equality Act claims issue in fairly short order.
Part 9 of the Equality Act limits proceedings for a contravention of Part 3 (services and public functions) to claims in the county court. There are certain exceptions, including at s.113(3)(a), which states that subsection (1) does not prevent “a claim for judicial review”.
Ms A argued that this extended to s.204 appeals, citing Runa Begum v Tower Hamlets LBC (2003) 2 AC 430 on the kinship of s.204 appeals and judicial review. However, while there was a lot of similarity between s.204 jurisdiction and judicial review, that did not mean they were the same. On the relation of a statutory review and judicial review, the Court of Appeal found:
The contrary has been decided by this court in Hamnett v Essex CC (2017) EWCA Civ 6; (2017) 1 WLR 1155. Gross LJ, with whom Tomlinson and King LJJ agreed, upheld the decision of Singh J (as he then was), reported at (2014) 1 WLR 2562, that the phrase “claim for judicial review” in s 113(3)(a) of the Equality Act 2010 is a term of art and refers only to a claim for judicial review in the strict sense, that is one brought in the High Court under Part 54 of the Civil Procedure Rules. Gross LJ said at paragraph 24 (vi) that he could not accept that “the statutory review here in issue could be characterised as an application for judicial review and therefore within the s 113(3) exception”.
Further, the appeal ground raised issues of disputed fact, including whether Ms A was disabled within the meaning of the Equality Act, which called for fact finding.
So, the first instance decision on striking out the appeal grounds relying on s.15 and 19 Equality Act was correct.
On the Housing Act point and the issue of fact finding, Bubb v Wandsworth LBC (2011) EWCA Civ 1285 remained binding authority that the county court cannot decide disputed facts in a s.204 appeal. The EHRC, intervening, had argued that Bubb could not longer stand in view of R (CN) v Lewisham LBC (2014) UK SC 62; (2015) AC 1259, and the judgment of Lord Hodge at (71)
“71. Sixthly, the decisions of this court in 2011, in Manchester City Council v Pinnock and Hounslow London Borough Council v Powell, extended the powers of the County Court when hearing applications by a local authority to recover possession of a property in order to comply with article 8 of ECHR. It appears to me that it is necessary for the same reason to interpret section 204 of the 1996 Act as empowering that court to assess the issue of proportionality of a proposed eviction following an adverse section 184 or 202 decision (if the issue is raised) and resolve any relevant dispute of fact in a section 204 appeal. As there is no other domestic provision involving the court in the repossession of the accommodation after an adverse decision, the section 204 appeal, which reviews the authority’s decision on eligibility for assistance, is the obvious place for the occupier of the temporary accommodation to raise the issue of the proportionality of the withdrawal of the accommodation. Alternatively, as Moses LJ stated in this case ((2013) EWCA Civ 804) at para 89, the occupier of the temporary accommodation may raise the issue of proportionality of such an eviction by way of judicial review in the Administrative Court, which similarly could resolve relevant factual disputes. An occupier might have to resort to judicial review if an authority were not willing to continue the provision of interim accommodation pending a review.”
The Court of Appeal was not persuaded.
I do not accept that these observations have overruled the decision in Bubb. Bubb is not referred to in the judgments of the Supreme Court or of this court and was not even cited in argument by either side. It is inconceivable that the very experienced counsel in CN, or Lord Neuberger PSC who presided in that case as he had in Bubb, would not have referred to it if it had been thought relevant. The observations at paragraph 71 of Lord Hodge’s judgment are in my view to be read in the light of the cases before the Supreme Court being challenges to the proportionality of an occupant or occupants being evicted from local authority accommodation. As I have already noted, it has long been established on high authority (Manchester CC v Pinnock) that human rights considerations or other policy considerations can be raised by way of defence to a claim for possession. CN decided that, in the more unusual case where a possession action is not required, an Article 8 issue as to the proportionality of evicting the occupants may be raised in a judicial review or a s 204 homelessness appeal. But there is a distinction between a challenge to the proportionality of eviction and a challenge to a decision that an applicant’s refusal to accept an offer of accommodation which the local authority regard as suitable entitles them to treat their homelessness duty as discharged. There is also a significant distinction between a proportionality issue under the Human Rights Act and the ECHR on the one hand and a claim of discrimination contrary to the Equality Act 2010 on the other.
On ‘issues arising from the decision’, the ‘decision’ for a s.204 appeal was the s.202 review decision, where there was one. The appellant had had adequate time on review to raise any points, so the question of whether or not she was given adequate time to accept or reject the offer of accommodation had become academic, and was not an issue rising from the decision.
On the ‘Antecedent Policy’ point – whether a s 204 appellant can argue that an antecedent policy decision of the housing authority is unlawful in public law terms and that such unlawfulness infects the decision in the specific case – the Court of Appeal noted the tension between Lord Lewison’s obiter remarks in Panayiotou v Waltham Forest LBC (2017) EWCA Civ 1624; (2018) QB 1232 and dicta of Lady Hale in Nzolameso v City of Westminster (2015) UK SC 22; (2015) 2 All ER 942. But the Court of Appeal declined to make a finding on the issue, as it was not necessary for the disposl of the appeal and should await a case in which it was determinative. In this case, the only ‘antecedent policy’, requiring a decision on an offer of a property within 3-4 days, the Appellant had had a further opportunity to accept or reject, and then the opportunity to make submissions on review.
I rather suspect that the Supreme Court awaits, not least on the position on fact finding and the continued authority of Bubb.