Housing law

By Andrew Dymond, barrister, Arden Chambers, London

Homelessness decisions

The Court of Appeal has now held that the scheme for reviewing homelessness decisions under part VII of the Housing Act 1996 is compatible with article 6 of the European Convention: Begum v Tower Hamlets LBC [2002] EWCA Civ 239.

In so doing, it declined to follow the obiter dicta in Adan v Brent LBC [2001] EWCA Civ 1916.

Under part VII, an applicant may request a review of the authority's decision - section 202 of the 1996 Act.

Generally, such reviews are undertaken by the authorities themselves.

The applicant then has a right of appeal to the county court (under section 204) on 'a point of law', which includes not only matters of legal interpretation but also the full range of issues that can be raised on judicial review, for example challenges on the basis of procedural error, irrationality, and inadequacy of reasons - Nipa Begum v Tower Hamlets LBC [2000] 1 WLR 306, CA.

The court accepted that a section 202 review decision amounted to a determination of an applicant's 'civil rights' so that article 6 was engaged.

(This point was conceded in Adan.) It also held that - while there was no suggestion of actual bias on the part of the reviewing officer in this case - there were insufficient objective guarantees of independence and impartiality for the review itself to comply with article 6.

Therefore, the key issue was whether the limited right of appeal to the county court guarantees compliance with article 6.

In Adan, the majority of the Court of Appeal (Lord Justice Brooke and Mr Justice David Steel) held that this depended on the nature of the case.

Where the reviewing officer was required to resolve the primary facts, the appeal did not guarantee compliance.

By contrast, where the question was whether the officer had correctly interpreted the legal position in the light of undisputed facts, compliance was guaranteed.

Lord Justice Hale, dissenting, held that this problem could be overcome by allowing the county court to fulfil a fact-finding role if necessary.

In Begum, the court (Lords Justice Laws and Dyson and Lord Chief Justice Lord Woolf) rejected both approaches.

Whether or not a statutory scheme is compliant cannot vary from case to case.

Any statutory scheme must be judged as a whole, so that the review process and the appeal must be looked at together.

Significantly, the reviewing officer is not merely deciding facts.

His decision involves the exercise of discretion, judgement and policy.

Section 203 provides a number of procedural safeguards to ensure the integrity of the review itself.

Furthermore, the county court judge is entitled 'to subject the earlier decision to a close and rigorous scrutiny'.

(Compare similar comments in McLellan v Bracknell Forest DC [2001] EWCA Civ 1510 on the administrative court's scrutiny of decisions to terminate introductory tenancies.)

Begum will come as a great relief to local authorities for whom the decision in Adan caused considerable consternation.

Many had already begun to follow the Court of Appeal's recommendation in Adan to ensure compliance by contracting out the review procedure under the Local Authorities (contracting out of allocation of housing and homelessness functions) Order 1996.

This is no longer necessary but Lord Justice Laws's emphasis on the level of scrutiny which may be given to decision letters is a warning to reviewing officers to ensure that their decisions are thorough and properly reasoned.