Case No: PTA A99/6030
Neutral Citation Number:[2000] EWCA Civ 50 
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM    H H Judge Anthony sitting at
Horsham County Court

Royal Courts of Justice
Strand, London, WC2A 2LL

Tuesday 22 February 2000
B e f o r e :

SIR RICHARD SCOTT VC
LORD JUSTICE CHADWICK
and 
LORD JUSTICE BUXTON
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	CRAWLEY BOROUGH COUNCIL		Appellant	
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	B	Respondent	

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040,  Fax No:  0171 831 8838
Official Shorthand Writers to the Court)

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Mr Andrew Arden QC and Mr William Okoya (instructed by  Crawley BC for the appellant)
Mr Anthony Mann QC and Mr Adrian Jack (instructed by  Anthony Morris Solicitors for the respondent)

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JudgmentCrown Copyright 
Lord Justice Buxton:
In order to protect the legitimate interests of the children indirectly involved in this appeal, any report should identify  the respondent, their mother, only by the initial of her surname, as does this judgment.

Background and nature of the appeal
Crawley Borough Council [Crawley] seeks permission to appeal against, and if leave is given to challenge, an order of His Honour Judge Anthony in the Horsham County Court on 20 April 1999, by which he declared that Crawley were under a duty to rehouse Ms B under section 193(2) of the Housing Act 1996 [the 1996 Act].  The matter was originally before the judge in the form of an appeal to him from a decision in the same sense by a District Judge, but the judge, in my view rightly, thought that the District Judge had not had jurisdiction to entertain the matter; and he therefore treated the case as an original application to him. 

Although it came before us as an application, we heard the case as if it were a full appeal.  The present judgment assumes that permission to appeal is given, and addresses the substance of that appeal.

The case raises issues under the provisions as to local authorities' obligations for the housing of the homeless under the 1996 Act.  I shall therefore refer in general terms to the relevant part of those provisions; and then to the facts of the case; before addressing the issues debated before us.

The structure and provisions of the 1996 Act
The provisions of the relevant part, Part VII, of the 1996 Act  impose a range of duties on local housing authorities in relation to persons who are homeless or threatened with homelessness.  The nature of those duties varies according to the factual category into which the homeless person falls.  The most important of such categories are whether the person is in priority need; and whether he has become homeless or threatened with homelessness intentionally.  It will also be convenient to mention here that  the performance of a duty imposed on a local authority otherwise to secure the provision of accommodation to a homeless person may be affected by whether there is other suitable accommodation available to that person (section 197); and whether a different housing authority is a more appropriate authority to deal with the case (section 198).

The highest level of duty arises under section 193, which is in the following terms:
193	Duty to persons with priority need who are not homeless intentionally
(1)	This section applies where the local housing authority are satisfied that an applicant is homeless...and has a priority need and are not satisfied that he became homeless intentionally.

This section has effect subject to section 197 (duty where other suitable accommodation available).

(2)	Unless the authority refer the application to another local housing authority (see Section 198), they shall secure that accommodation is available for occupation by the applicant.

The criteria for determining "priority need" are set out in section 189.  The category with which we are concerned in this case falls under section 189(1)(b):
A person with whom dependent children reside or might reasonably be expected to reside.

It will have been noted that here, as elsewhere in the 1996 Act, the duties of the housing authority are generated according to  the authority's "satisfaction" as to the statutory relevant facts.  

The effect on the authority's duty of its being satisfied that an applicant is homeless intentionally is set out in section 190:

190  Duties to persons becoming homeless intentionally

(1)  This section applies where the local housing authority are satisfied that an applicant is homeless...but are also satisfied that he became homeless intentionally

(2)  If the authority are satisfied that the applicant has a priority need they shall-
(a) secure that accommodation is available for his occupation for such period as they consider will give him a reasonable opportunity of securing accommodation for his occupation, and
(b) provide him with advice and such assistance as they consider appropriate in the circumstances in any attempts he may make to secure that accommodation becomes available for his occupation.

(3)	If they are not satisfied that he has a priority need, they shall provide him with advice and such assistance as they consider appropriate in the circumstances in any attempts he may make to secure that accommodation becomes available for his occupation.

That leaves the case of the homeless person who is neither homeless intentionally nor in priority need.  That case is addressed by section 192:
192	Duty to persons not in priority need who are not homeless intentionally

(1)	This section applies where the local housing authority-
(a)	are satisfied that an applicant is homeless and eligible for assistance, and
(b)	are not satisfied that he became homeless intentionally,
but are not satisfied that he has a priority need,

(2)	The authority shall provide the applicant with advice and such assistance as they consider appropriate in the circumstances in any attempts he may make to secure that accommodation becomes available for his occupation.

It will be necessary to return to these provisions in the context of the present case.  For the moment, it bears observing that where a person is not in priority need the duty towards him is identical whether he is intentionally homeless (section 190(3); or not intentionally homeless (section 192(2)).

The incidence of the local authority's duties is triggered in the first instance by the putatively homeless person making an application to the housing authority for accommodation or for assistance in securing accommodation.  That puts the authority under an obligation to  conduct an inquiry as provided by section 184:

184	Inquiry into cases of homelessness or threatened homelessness

(1)	If the local housing authority have reason to believe that an applicant may be homeless or threatened with homelessness, they shall make such inquiries as are necessary to satisfy themselves -
(a)	whether he is eligible for assistance, and
(b)	if so, whether any duty, and if so what duty, is owed to him under the following provisions of this Part.

(2)	They may also make inquiries whether he has a local connection with the district of another local housing authority in England, Wales or Scotland.

(3)	On completing their inquiries the authority shall notify the applicant of their decision and, so far as any issue is decided against his interests, inform him of the reasons for their decision.

(4)	If the authority have notified or intend to notify another local housing authority under section 198 (referred of cases, they shall at the same time notify the applicant of that decision and inform him of the reason for it.

(5)	A notice under subsection (3) or (4) shall also inform the applicant of his right to request a review of the decision and of the time within which such a request must be made (see section 202).

An innovation in the 1996 Act is the provision for formal review by the authority of a decision taken under section 184, and then for an appeal to the county court in relation to the decision or its review.  Those provisions are contained in sections 202 and 204, which in their parts relevant to this case are as follows:

202	Right to request review of decision

(1)	An applicant has the right to request a review of-
(a)	any decision of a local housing authority as to his eligibility for assistance,
(b)	any decision of a local housing authority as to what duty (if any) is owed to him under sections 190 to 193 and 195 to 197 (duties to persons found to be homeless or threatened with homelessness).
(c)	any decision of a local housing authority to notify another authority under section 198(1) (referral of cases),
(d)	any decision under section 198(5) whether the conditions are met for the referral of his case......

(3)	A request for review must be made before the end of the period of 21 days beginning with the day on which he is notified of the authority’s decision or such longer period as the authority may in writing allow.

204	Right of appeal to county court on point of law

(1)	If an applicant who has requested a review under section 202 -
(a)	is dissatisfied with the decision on the review, or
(b)	[omitted]
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.

(2)	An appeal must be brought within 21 days of his being notified of the decision or, as the case may be, of the date on which he should have been notified of a decision on review.

(3)	On appeal the court may make such order confirming, quashing or varying the decision as it thinks fit.

It is now well established, by the decision of this court in Begum v Tower Hamlets LBC (2000) 1 WLR 306, that  "point of law" in section 204 includes not only matters of legal interpretation but also the full range of issues that could otherwise be the subject of an application to the High Court for judicial review.

The facts
In January 1998 Ms B's three children were taken into care by the appropriate authority, West Sussex County Council, and placed with foster parents.  In July 1998 the court ordered that steps be taken to reunite the children with Ms B and her partner.  Ms B was at that time threatened with homelessness as she was about to be evicted from housing association accommodation in which she had previously been placed by Crawley.  She made an application to Crawley under section 183.  Crawley informed Ms B of its decision on that application in a letter of 17 August 1998 in the following terms:
As required under Section 184(3) of the Act, I am writing to inform you that enquiries as to your circumstances have been completed and it has been decided that:-

(1) you are homeless or threatened with homelessness in 28 days
(2) you are eligible for assistance
(3) you do not have priority need for accommodation as I am not satisfied that you are mentally or physically vulnerable.  I am not satisfied that you have dependant children currently residing with you.

In reaching this decision, careful consideration has been given to all aspects of your application and to the general housing circumstances in this Council’s district.

Due to the above, the Council has no duty to provide or secure accommodation for you other than to provide you with advice and assistance to help you to secure your own accommodation.

On the same day a Ms Morgan of Crawley, who was not the officer dealing with the homelessness application, replied to a request by West Sussex County Council for assistance under section 27 of the Children Act 1989 by saying, inter alia, that because of rent arrears in her present accommodation Ms B would be considered to be intentionally homeless.

Ms B requested a review of Crawley's decision under section 202.  That review confirmed the original decision, the review panel basing its conclusion that Ms B was not in priority need on the fact that her children were residing in foster care and would continue to do so for an indefinite period.  The review did not consider intentionality.  Nor, however, did it consider the effect of the court's order that the family should be reunited on the second limb of the test for priority need in section 189(1)(b), that Ms B's children might reasonably be expected to reside with her.

On 27 October 1988 Ms B issued an appeal in the county court against that review finding, on the grounds that the decision had been Wednesbury unreasonable, in that no reasonable authority properly considering the court order could have concluded that  Ms B was not a person with whom dependent children might reasonably be expected to reside.   While the interlocutory stages of that appeal were proceeding, Crawley instituted what it called a non-statutory review of the case, and on 14 January 1999 issued a further decision letter in the following terms:
I refer to your application made on 5 August 1998 to this Council for assistance under the above Act.

As required under Section 184 of the Act, I am writing to inform you that enquiries as to your circumstances have been completed and a decision has been reached concerning your application, following the further non-statutory review of your circumstances held on 12 January 1999.

It has been decided that:
(1)	you are homeless;
(2)	you are eligible for assistance;
(3)	you have a priority need for accommodation, as your children may reasonably be expected to reside with you;
(4)	this Council is satisfied that you became homeless intentionally on 2 September 1998 because of your wilful and persistent failure to maintain the rent account of your tenancy of 13A Broad Walk, Crawley, which resulted in your eviction.                                          

These conclusions led to the same decision as to Crawley's duty  to Ms B as had been reached in the 17 August letter: but, since it was now accepted that she was in priority need, the duty fell under section 190(3) rather than under section 190(2).  Ms B effectively ignored the 14 January 1999 letter, it would seem on the advice of her lawyers.  The appeal remained therefore against the decision of 17 August and the reasons then given for that decision.  In February 1999 there was pre-trial correspondence, in which Crawley indicated that the appeal must succeed.  I have already said that the matter first came before a District Judge.  Very shortly before the hearing before the judge in April 1999 which is the subject of this appeal (and which was at that time wrongly thought to be an appeal from the District Judge) Crawley produced an affidavit in which the 14 January 1999 letter was sought to be relied on, and an account was given of the practical reasons, in terms of economy of resources, why Crawley did not in the first instance investigate the issue of intentionality.  Ms B sought to exclude that affidavit, but the judge looked at it, and nothing now turns on the fact that he did so.  In terms of fact it dealt with nothing of which Ms B was not already very well aware.  However, by its reference to the January 1999 decision the affidavit brought into the case considerations of a much wider nature than had been apparent in the proceedings as originally constituted.

Ms B's case
The case put by Ms B was effectively in the following terms.  The 17 August decision, that the authority's only duty to Ms B was to provide advice and assistance, had been (as was indeed conceded before the judge) Wednesbury unreasonable, because it did not take into account the prospect of Ms B's children coming to live with her.  Once that decision had been taken, it was not open to the authority to seek to reinforce the decision on grounds not originally considered by it or notified to the applicant under section 184(3): in this case, Ms B's alleged intentional homelessness.  Both on the construction of the 1996 Act, and on considerations of policy and propriety (in that homeless applicants needed to know where they were and to be able to rely on local authority decisions), the authority must consider all potentially relevant issues at the time at which it took its decision.  Intentionality not having been considered for the purposes of the 17 August decision, it could not be raised either later in the administrative process, or in the review, or in an appeal to the court.  It therefore followed that, the judge being faced with a decision the only reason for which was invalid, he was right to treat the case as falling under section 193: since Ms B was in priority need, and Crawley had not, at the relevant time, satisfied itself that she became homeless intentionally.

These submissions appealed to the judge.  He cited the observations of Sir Louis Blom Cooper in R v Southwark LBC ex p Dagou 28 HLR 72 at p80, to the effect that once the local authority had completed its statutory enquiries and communicated its decision to the applicant under the predecessor section to section 184, that decision is final.  As Sir Louis put it:
Any circumstances uncovered subsequently, other than those relevant to deception or fraud, can be taken into account only for the purposes of the authority's duty to secure that suitable accommodation is made available to the applicant.

The judge then continued, at page 5F:

Following that line of authority, and deciding as I have that the duty under section 184 is indeed to look into all the circumstances, including intentional homelessness, because of the reference to "duty, if any, under this part of the Act", I come to the conclusion that the local authority, who do not here alleged fraud or deception on the part of the applicant, were simply not entitled to reopen that aspect of the case, since they had failed to inform her under section 184(3) that they had decided that issue adverse to her.

There were, therefore, two crucial elements in that holding.  First, once the authority has issued a decision on an application it could not revisit that decision unless the applicant were shown to be guilty of fraud or deception.  Second, the authority was bound by and limited to the reasons for its decision that it had communicated to the applicant under section 184(3).  Thus when conducting the review under section 202, or defending an appeal under section 204, the authority was unable to rely on reasons for its decision other than those set out in the section 184(3) notification.   

Ms B said that these conclusions followed not only from the policy of the 1996 Act, but also from its construction.  The new provisions for formal review and appeal required all elements in the decision to be determined, or abandoned, before the homeless person embarked on that process.  The "decision" that had to be notified was what Mr Mann QC described as a "composite" one, embracing and concluding the issues both of priority need and of  intentionality.   A contrast was to be drawn in that respect with the predecessor provisions, in section 64 of the Housing Act 1985.  There, separate provision was made for notification of a decision on priority need and of a decision on intentionality.  But the decision envisaged by section 184(3) was a decision as to the duty in respect of provision of accommodation or of advice accepted by the authority in the light of the total requirements of sections 190, 192 and 193.

Crawley's case
Central to Crawley's criticism of the judgment was the contention that the 1996 Act by its construction envisaged, and common-sense  impelled the recognition of, what Mr Arden QC described as "slicing".  I shall use that expression as a convenient form of shorthand, though for purposes of identification only.  Slicing meant a process whereby the authority considered sequentially, and not in one single decision, the issues of priority need and of intentionality.  If that course were open to the authority it did not follow from Crawley's initial failure either to consider or to notify the applicant about intentionality that Crawley must be deemed to have decided that issue by its silence.  It was, said Mr Arden, only sensible that a housing authority should not be so limited.  Investigations into intentional homelessness, possibly involving enquiries in foreign countries or the elucidation of disputes with private landlords, could be extensive and burdensome.  It could not be a proper charge on public resources for an authority to be obliged to undertake such enquiries even in a case where it was satisfied that the applicant had no priority need, simply in order to avoid the risk, indeed on Ms B's case the certainty, of being thereafter unable to rely on intentionality if its conclusion on priority need should be disturbed either on review or on appeal.

Mr Arden advanced two arguments of construction in support of his contention.  The first drew attention to the provisions for reference to another local authority under section 198.  If Ms B were right, that possibility also had to be considered in every case, as part of the original decision.  I doubt however whether those provisions affect the present argument.  The section 198 relief, if that is the correct way of describing it, only arises once an authority has accepted that it is under a section 193 duty; and specific provision is made in section 184 (4) and (5) for separate notification of a section 198 decision.  Therefore, whether or not "slicing" is available to the authority, it will still have to deal with the section 198 issue at the time and in the manner provided by the Act.

Mr Arden's second argument was that, in the terms of this case, the 17 August decision was only a decision about priority need.  It was not a decision about intentionality.  That issue therefore remained to be decided, and was not decided until Crawley's letter of 14 January 1999.  The applicant had, on advice, neither  sought a review of that decision nor appealed in respect of it, and she accordingly could not now complain of it.

The nature of a housing authority's "decision"
The two arguments just outlined adopted extreme positions.  I did not find either of them compelling.  The "slicing" claim, that the authority has complete freedom to determine elements affecting the applicant's position in a sequential manner, is difficult or impossible to reconcile with the terms of the Act, which makes a clear distinction between the decision as to the authority's duty, and the reasons for that decision.  As Mr Mann correctly submitted, the conclusions as to, respectively, priority need and homelessness are reasons for the decision as to the content of the authority's duty.  They are not the decision itself.  

But I find almost equally difficult Mr Mann's contention that, always absent the fraud that unravels all, the authority can in no circumstances revisit a decision once taken, and cannot rely in support of a decision on anything other than what was notified to the applicant under section 184(3).  The inconvenience of such a position seems obvious.  First, as the argument in this case demonstrates, it obliges an authority that is satisfied that an applicant does not have a priority need, but wishes to guard against the possibility that that decision may be falsified, to go on at the time of the original decision and investigate intentionality: even though a conclusion as to intentionality can make no difference to the authority's conclusion as to its duty, since as already pointed out section 190(3) and section 192(2) are in identical terms.  Second, it means that even if quite unforeseeable material as to intentionality comes to the local authority's attention after the original decision (whether or not that decision relied on intentionality), the authority cannot  take it into account: so the applicant may obtain accommodation, a valuable public resource, when in truth he is not entitled to it.  And, third, it is not convincing that as a matter of construction the decision is to be analysed in the terms suggested by Mr Mann, as necessarily addressing all potential elements in the case.  The decision is, as he rightly urged, one as to the authority's duty.  Having reached a conclusion adverse to the applicant on priority need, the authority can properly determine its duty without considering intentionality at all; so it would be very odd if the making of a decision had to be held necessarily to entail a conclusion on intentionality even if that factor had never been considered.

The key to the resolution of these dilemmas lies in the nature of the decision and of the decision-making process.  If the position contended for by Ms B appears to be unduly rigid, and restrictive of the wider obligations of the housing authority, that is because it ignores the public law nature of those  obligations.  The decision that the authority has to make is, indeed, as to the category into which its duty falls under the 1996 Act.  Although subject to the discipline of sections 202 and 204, that remains a decision based on the satisfaction of the authority as to the issues (which are issues of fact and judgement) of priority need and intentionality.   As is well established, a conclusion as to a public body's satisfaction can only be challenged on public law grounds: see for example Din v Wandsworth LBC [1983] 1 AC 657 at p664H, per Lord Wilberforce.  The application of the jurisprudence of public law to the process of decision-making in homelessness cases does not, therefore, necessarily lead to the conclusion that a decision, once taken, cannot be revisited.  To the extent that Sir Louis Blom Cooper may have held otherwise in Dagou I cannot agree with him.  The question for the court in an appeal under section 204 should rather be whether the whole circumstances of the case are such as to justify any, and if so what, relief in public law.   The nature and limits of that question can conveniently be demonstrated from the facts of the present case.

The appeal to the County Court
The only decision actually in issue before the judge was that of 17 August.  It was conceded that that decision had been irrational on public law grounds.  The decision had, however, been retaken before the hearing, and had reached the same conclusion as to the authority's duty, though on different grounds.  The new ground, satisfaction on the part of the authority that Ms B was intentionally homeless, was one that if it were relevant to the proceedings could only be ignored if it could be faulted on public law grounds.

Faced with these facts, the judge was in my view bound to consider whether the relief sought, an order to house Ms B under section 193(2), necessarily flowed from the quashing of the 17 August decision.  In addressing that question, he had to take into account the considerations that affect the grant of relief in public law: since section 204, by importing the whole range of public law issues, must equally imply that where, as here, the complaint is solely on public law grounds the relief likewise is limited to relief of a public law nature.  Such relief is not, or at least is not necessarily, granted when to grant relief would be obstructive of the principles of good administration; or be inconsistent with the factual situation obtaining at the date at which the relief is sought; or give the claimant an advantage to which in public law he was not properly entitled.

In the present case, the factual situation at the time at which the judge heard the appeal was that the authority had, by its letter of 14 January 1999, expressed itself as satisfied that Ms B was intentionally homeless.  That decision stood as a matter of fact unless and until set aside on public law grounds.  Those grounds would have to be either a simple application of  Wednesbury, or a complaint that the process leading up to the decision had, by the introduction of considerations of intentionality, been so unfair as to disable the authority from taking the decision at all.  Neither of those conclusions having been reached, the January decision and the authority's reason for it was a fact that the judge was bound to take into account unless either the authority was by that date functus, which I have held not to be the law; or failure to consider intentionality when the decision was originally taken in August had been irrational to the extent that the authority had put it out of its power thereafter to consider the point.  The judge necessarily made no finding on the latter issue because he was persuaded that the authority's ability to consider intentionality after 17 August was precluded simply by its failure to consider intentionality on that date, whether or not that failure was irrational.

The factual position facing the judge in the appeal was, therefore, that the authority was satisfied that Ms B became homeless intentionally.  Given that, for the reasons just stated, he had to take that fact into account, he could not in any event make an order under section 193, because the pre-conditions set out in section 193(1) for placing the section 193 duty on the authority were not all fulfilled.  However, quite apart from that consideration, the judge should also have looked critically at the relief sought against the criteria of public law.  The order appealed from gives Ms B access to a public resource that, on the factual findings of the authority, she is not entitled to.  It also proceeds on a factual basis that is untrue.  Mr Mann said that courts quite often found themselves granting relief on a basis that was not factually correct but which they had to adopt because the true facts were excluded by res judicata or on other legal grounds.  Such cases, however, arise in private law.  They are not relevant to the granting of remedies in public law, which are discretionary in nature, and have to be related to the reality of the case.  This is not so much a case of the witholding of an otherwise available remedy in the interests of good administration or because of the conduct of the applicant; but rather a more general conclusion that the remedy should not be available at all if it is inconsistent with a factual conclusion that has not been displaced.

The disposal of this appeal
The judge therefore did not consider the correct issues in determining what remedy should follow the quashing of the 17 August decision.  Since the relevant facts before him were uncontested (because the relevant fact in relation to Ms B's intentionality was not whether she had in fact become intentionally homeless but that Crawley had so satisfied itself)  it is appropriate for this court to consider those issues itself.

I do not think that it was irrational for Crawley not to have considered intentionality in August 1998.  It was well within the ambit of the authority's discretion to conserve resources by not embarking on an enquiry that, in the state of facts as Crawley then believed them to be, could have had no effect on the actual decision.  Further, although the possibility of Ms B having become homeless intentionally was known to Crawley in August, as shown by Ms Morgan's letter to the West Sussex County Council, I do not think that Crawley committed any sufficient fault of maladministration or unfairness to exclude their subsequent revisiting of the decision from consideration by the court.  It is therefore proper to proceed on the basis of Crawley's finding as to intentional homelessness of January 1999; so for the reasons already stated an order under section 193 was not an available, or an appropriate, form of relief.

More difficult is the question of what the relief should be.  Crawley, as we have seen, took the position that the decision of January 1999 was now binding, as it had not been challenged under section 202 within the period of 21 days limited by section 202(3).  That argument, however, was based on the contention that the "decision" against which Ms B must be taken to be appealing was the January decision.  That, as we have seen, is not so.  The January decision only comes into consideration as a factor affecting the appropriate relief once the decision actually appealed against, that of 17 August, had been quashed.  

I therefore consider that the proper order is as follows.  Crucial to the relief in this case is Crawley's finding that it is satisfied that Ms B is homeless intentionally.  Ms B has never sought a review of that decision, and thus never had an opportunity of challenging it.  On one view that disability was self-inflicted, since her lawyers seem to have advised her to ignore the January decision, but in the circumstances of this case I would not count that against her.  The difficulty can be rectified if she is now permitted to apply, if so advised, for a review of that decision.  I see no reason why Crawley should not extend the time limited under section 202(3), and although such extension is normally entirely a matter for the authority, in the particular circumstances of this case, and in the interests of fairness to Ms B, I would so order.  It would then be open to Ms B to appeal again to the county court under section 204(2) within 21 days of being informed of the decision on that review.  However, those advising Ms B in respect of any such appeal will no doubt keep firmly in mind the very limited grounds on which such a decision by a housing authority may properly be challenged.

Conclusion
I would allow the appeal to the extent of setting aside the judge's order and directing that if, within 21 days of the date of this judgment, Ms B seeks a review under section 202 of Crawley's decision notified to her on 14 January 1999, Crawley shall consider that application in accordance with the terms of section 202.

This case has again highlighted the obligations placed both on the judges of the county courts and on counsel who appear before them now that the full range of public law issues have to be considered in appeals under section 204 of the 1996 Act: issues that, as another constitution of this court pointed out in A v Wandsworth LBC (1999), The Times 25 January 2000, are regarded as sufficiently specialised for only 25 of the 99 puisne judges of the High Court to be authorised to hear public law cases.

Lord Justice CHADWICK: 

I agree that the appropriate order on this appeal is that proposed by Lord Justice Buxton. I agree, also, with the reasons which have led him to that conclusion. But for the fact that the effect of that order may be to deprive the respondent and her three children of a home in which they can be reunited - as the family court thought that they should be - I would think it unnecessary to add any observations of my own. I do so because I think it right, in the particular circumstances of this case, that the respondent and her advisers should have a statement of my reasons in my own words.

Part VII of the Housing Act 1996 contains provisions regulating the functions of local housing authorities in relation to persons who are homeless or threatened with homelessness. In order to carry out those functions it is necessary for an authority to reach decisions in relation to the matters on which they are required to be satisfied under those provisions. Section 202 of the Act requires the authority, on request made by an applicant within 21 days, to review any decision which falls within sub-section (1) of that section. Section 204 of the Act empowers the County Court to entertain an appeal on a point of law from the decision of an authority on a review under section 202. On an appeal under section 204 the County Court may make such order confirming, quashing or varying the decision taken by the authority on review as the court thinks fit.

In the present case the Council, at the request of the respondent, carried out a review under section 202 of the Act of its decision that, as local housing authority, it was under no duty to provide or secure accommodation for her. The decision on the review  - set out in the Council’s letter dated 8 October 1998 - was to confirm the earlier decision of 17 August 1998. The respondent did not have a priority need for accommodation; and accordingly the Council had no duty to secure accommodation for her.  The respondent appealed to the County Court against both limbs of that decision - as appears from her notice of appeal dated 3 February 1999.

The judge quashed the decision which was under appeal.  There is no dispute that he was entitled to do so.  But he went on to hold that the Council was under a duty to re-house the respondent under section 193(2) of the Act.  It is that part of his order which is the subject of the application for permission to appeal to this court.  

The duty on a local housing authority to secure accommodation for an applicant under section 193(2) of the Housing Act 1996 arises if, but only if, the authority are satisfied that the applicant is homeless, eligible for assistance and has a priority need; and are not satisfied that she became homeless intentionally.  The position before the judge on the hearing of the appeal on 20 April 1999 was that the Council was satisfied that the respondent was homeless, eligible for assistance and had a priority need.  On the third point (priority need) the Council’s position had changed since the review decision set out in the letter of 8 October 1998.  The result of that change was that the Council did not oppose the appeal, in so far as it sought to quash the decision in that letter.  But, by 20 April 1999, the Council had expressed itself satisfied that the respondent had become homeless intentionally.  That appears from the letter sent to her by the Council on 14 January 1999.  So, the position as it appeared from the material before the judge on 20 April 1999 was that the fourth condition precedent to the imposition of a duty under section 193(2) was not fulfilled.  Nevertheless the judge dealt with the matter before him as if that fourth requirement were in place.  The order which he made could only be appropriate if he were bound - or, at the least, entitled - to treat the Council, contrary to the facts as presented to him on 20 April 1999, as if it were not satisfied that the respondent became homeless intentionally.

An order which requires a local housing authority to devote scarce resources towards securing accommodation for an applicant who has become homeless intentionally is inconsistent with the objectives which Part VII of the Act of 1996 was enacted to achieve.  It is necessary, therefore, to examine carefully the reasoning which led the judge to that result. 

Sections 183 and 184, in Part VII of the Act, prescribe what is to happen when a person applies to a local housing authority for accommodation or for assistance in obtaining accommodation. In particular, section 184(1) requires the authority, in a case where they have reason to believe that an applicant may be homeless or threatened with homelessness, to make such enquiries as are necessary to satisfy themselves (a) whether he is eligible for assistance and (b) if so, whether any duty, and if so what duty, is owed to him under the following provisions of Part VII. Sections 185 to 187 are concerned with the question of eligibility for assistance.  No point arises in relation to that question in the present case. Section 188 imposes an interim duty to accommodate the applicant in a case where the authority have reason to believe that the applicant may be homeless, eligible for assistance and have a priority need.  Section 189 describes those who have a priority need for accommodation.

There then follow a group of sections under the cross-heading “Duties to persons found to be homeless or threatened with homelessness”.  The side-notes to sections 190, 192 and 193 are, respectively, “Duties to persons becoming homeless intentionally”, “Duty to persons not in priority need who are not homeless intentionally” and “Duty to persons with priority need who are not homeless intentionally”. Section 191 provides the test by which the local housing authority are to determine whether a person becomes homeless intentionally.  Each of sections 190, 192 and 193 begins the words “This section applies where the local housing authority are satisfied that an applicant is homeless and is eligible for assistance” - or with words to the same effect.  It is plain enough that those are the sections in which there will be found the duties which are owed to those who are homeless and eligible for assistance. But the combination of the introductory words, the side-notes and the sequential arrangement of the sections might appear to point to the further conclusion that in order to discover what those duties are it is necessary, in every case, for the authority to reach a view on each of two questions: first, whether the applicant became homeless intentionally; and, second, whether the applicant has a priority need. If the authority is satisfied that the applicant became homeless intentionally the relevant duty will be found in section 190. In a case within section 190, the duty to an applicant with priority need is set out in sub-section (2); and the duty to an applicant having no priority need is set out in sub-section (3). If the authority is not satisfied that the applicant became homeless intentionally the relevant duty will be found either in section 192 (if the applicant has no priority need) or in section 193 (if the applicant does have a priority need).

The judge was persuaded that that further conclusion was correct. He said this, at page 4D-E in the transcript of his judgment:
It follows, in my judgment, that [the authority’s] duty under section 184 when making the inquiry was not only to satisfy themselves whether or not this applicant was homeless, eligible for assistance and had a priority need, but also to determine whether or not they were satisfied that the applicant had become homeless intentionally.

The judge referred to the requirement in section 184(3) of the Act that, on completing their inquiries under section 184(1) and (2), the authority must inform the applicant of their decision and must “so far as any issue is decided against his interests, inform him of the reasons for their decision”. On the basis that the Council had to determine whether or not the respondent had become homeless intentionally, its failure to give, in its letter of 17 August 1998, as a reason for the decision that it had no duty to provide or secure accommodation for her that it was satisfied that she had become homeless intentionally led to the conclusion that it was not so satisfied. As the judge put it, at page 5A-C:
If any issue had been decided against the applicant’s interests (here that is if they had come to the conclusion that she had made herself intentionally homeless) she was entitled to be informed of the reason for that decision. As they did not do so, in my judgment it is too late for them at some later stage to reopen that decision and determine against the applicant an issue which, in effect, had been decided in her favour, at least in the absence of fraud or deception.

The omission of any reference in the letter of 17 August 1998 to “intentionality” – to adopt the word used in argument to describe the concept of becoming homeless intentionally – is explicable on either of two grounds: (i) that the Council had considered the question and decided that it was not satisfied that the respondent had become homeless intentionally; (ii) that the Council had not considered the question at all. In either case, there would be no need to refer to intentionality in the letter of 17 August 1998; because the Council would not have decided that issue against the respondent – see section 184(3). It is clear, however, that the judge thought that, in law, the omission had to be attributed to the first of those grounds – because he had held that there was a duty on the Council to consider the question – and that, if the Council had to be treated (contrary to fact) as if it had decided, in August 1998, that it was not satisfied that the respondent had become homeless intentionally, then it could not be allowed to assert, on the appeal in April 1999, that – as a result of further consideration in January - it was satisfied that she had become homeless intentionally. It is, I think, important to keep in mind that this was not a case in which it could be said that there had been any change, between August 1998 and January 1999, in the underlying circumstances affecting a decision as to intentionality.

In my view the judge was wrong to accept the premise that section 184(1) of the Act required a local housing authority, in every case, to reach a view on the question whether the applicant became homeless intentionally. A more careful examination of the provisions in sections 190, 192 and 193 leads to the conclusion that, if the local housing authority are satisfied that the applicant has no priority need, then it is not necessary for the authority to consider, also, the question whether the applicant became homeless intentionally. That is because, in those cases where there is no priority need, the duty owed to the applicant is the same whether or not the applicant became homeless intentionally. If the applicant has no priority need the only duty that can be owed to him is a duty to provide advice and such assistance as the authority shall consider appropriate in the circumstances in any attempts he may make to secure that accommodation becomes available for his occupation.  That is the duty imposed, by section 190(3), in cases where the authority is satisfied that the applicant became homeless intentionally but is not satisfied that he has a priority need. That is also the duty imposed, by section 192(2), in cases where the authority is not satisfied that the applicant became homeless intentionally and is not satisfied that he has a priority need. Sections 190(3) and 192(2) are in identical terms.

It follows that the obligation imposed on a local housing authority by section 184(1) of the Act - to make such inquiries as are necessary to satisfy themselves whether any duty, and if so what duty, is owed to an applicant under Part VII - does not require the authority, in every case, to make inquiries in order to satisfy themselves whether or not the applicant became homeless intentionally. The obligation is to make such inquiries as are necessary for the purpose described. If the authority, acting rationally, can satisfy themselves as to the duty owed to an applicant without making inquiries about intentionality, then such inquiries are not necessary to the decision which they have to make; and there is no obligation to make them. There is no obligation to make the inquiries because there is no need to decide whether or not the applicant became homeless intentionally; and it would be improper to decide that issue unless the inquiries had been made. So, in a case where the local housing authority can satisfy themselves as to the duty owed to the applicant without making inquiries as to intentionality, there is no basis for an assumption in law that the authority has reached any decision on that issue. 

It follows, also, that there is no reason why, by reason of the omission of any reference in the letter of 17 August 1998 to intentionality, the Council had to be treated as if, contrary to fact, it had considered the question and had decided that it was not satisfied that the respondent had become homeless intentionally. 

The true position, as it seems to me, is that the judge, on an appeal from the review decision set out in the letter of 8 October 1998, was bound to quash that decision once it had been accepted by the Council that the reason on which the original decision of 17 August 1998 was founded – the absence of priority need – could not be supported. It may be noted that section 204(1) of the Act permits an appeal on a point of law “from the decision [on review] or, as the case may be, the original decision”. The effect of an order quashing that decision – without more - would be that the Council would be obliged to reconsider the matter. It would do so in the context that an application for assistance made under Part VII had not been dealt with in accordance with the provisions of section 184; and so remained outstanding. There would have been no valid decision on the matters which, as local housing authority, the Council was required by section 184(1)(a) and (b) to address. In addressing those matters the Council would be obliged, as it seems to me, to make such further inquiries as were necessary; and to take account of the matters arising from those inquiries. I can see no reason in principle why, in discharging the public law duty imposed by section 184(1) of the Act, the Council should be required to assume that the relevant facts had remained unaltered since the date of its first, invalid, decision; or that the relevant facts were other than what the Council perceived them to be at the time when it reconsidered the matter. 

The question, therefore, is whether the judge was entitled, or required, on the material before him, to do more than simply quash the decision in the letter of 8 October 1998. I would accept that, if that material had shown that the only decision as to its duty to provide accommodation or assistance that the Council, acting rationally, could reach was that the duty was that imposed by section 193(2) of the Act, the judge could properly have pre-empted further consideration by making an order to that effect. But that is not this case. I would accept, also, that there could be circumstances in which a judge might properly take the view that an applicant ought not to be deprived, by events which had occurred between the date of the original decision and the date of the appeal, of some benefit or advantage to which he would have been entitled if the original decision had been taken in accordance with the law.  But, again, that is not this case. In my view, there was no proper basis, on 20 April 1999, to impose on the Council a duty under section 193(2) of the Act.

The feature of the present case which calls for some order other than an order simply quashing the review decision is that the Council reached a decision on 14 January 1999 that it was satisfied that the respondent had become homeless intentionally. That was expressed to be a decision on the application which had been made in August 1998; and there is no reason not to treat it as such. But that decision has never been the subject of a review under section 202 of the Act; because, understandably in the circumstances, the respondent has never requested a review of that decision. I agree with Lord Justice Buxton that it would be unjust if the respondent were denied the opportunity to present her case on intentionality to the Council on a review by reason of time limits which expired while her earlier appeal under section 204 was pending. That potential for injustice can be avoided by the order which he has proposed.

Sir Richard Scott  VC
I agree with the judgment given by Lord Justice Buxton, with the reasons he has given for allowing Crawley Borough Council’s appeal and with the order he proposes should now be made.  I want to add a word on the question of who should hear appeals to the county court under section 204 of  the Housing Act 1996.

Ms B’s appeal against the section 202 review decision that she did not have a priority need, made by the Council on 8 October 1998, came before District Judge Gamba sitting at Horsham County Court on 12 February 1999.  He allowed the appeal, declared that the Council was under a duty to rehouse Ms B. under section 193(2) and ordered the Council to pay Ms B’s costs.  The Council, who did not dispute that the appeal should be allowed and that they should pay Ms B’s costs, appealed to the circuit judge.

The hearing by District Judge Gamba of Ms B’s section 204 appeal was, in my judgment, irregular.

Order 21 rule 5(1) of the County Court Rules 1981 contained provisions empowering district judges to hear and determine various actions or matters.  Sub-paragraph (a) referred to “any action or matter in which the defendant ... admits the claim”.  Sub-paragraph (b) referred to “any action a matter the value of which does not exceed £5000”.  Sub-paragraph (d) referred to “by leave of the judge and with the consent of the parties, any other action or matter”.

None of these sub-paragraphs enabled a district judge to deal with Ms B’s section 204 appeal.  As to sub-paragraph (a), the Council had agreed that her appeal should be allowed but had certainly not agreed that she was owed the section 193 (2) duty.  As to sub-paragraph (b), a criterion of value, whether £5000 or any other sum was not appropriate to be applied to a section 204 homelessness appeal.  And as to sub-paragraph (d), the circuit judge had not given the requisite leave nor had the parties consented to a district judge hearing the appeal.

Accordingly, as I have said, the hearing before District Judge Gamba was irregular.  The same view was, as I understand it, formed by counsel and by Judge Anthony at the hearing before him.  That hearing was treated as Ms B’s section 204 appeal although it took the form of an appeal by the Council from the District Judge’s order.  By an order dated 20 April 1999 Judge Anthony dismissed the Council’s appeal.  It would be more accurate to say that he allowed Ms B’s section 204 appeal.

Both the hearing before the District Judge and the hearing before Judge Anthony took place at a time when Order 21, rule 5 was still in force.  On 26 April 1999 the Civil Procedure Rules 1998 (the CPR) came into force, and the Rules of the Supreme Court and the County Court Rules were revoked with some of them being re-enacted and set out in Schedules attached to the CPR.  The re-enacted Rules did not include Order 21 of the County Court Rules.

Under Rule 2.4 of the CPR, supported by paragraph 1.1 of the CPR Part 2 Practice Direction, district judges may exercise any function of the Court except where an enactment, rule, or practice direction provides otherwise.  Paragraphs 2, 3 and 9 of the Practice Direction set out various matters that a district judge may not deal with and orders that a district judge may not make.  None of these provisions excludes appeals under section 204 of the 1998 Act from the matters a district judge may deal with.

Accordingly, it seems to me that the present position is that, as the result of an oversight, district judges do have power to entertain section 204  appeals.  It is my intention, as soon as practicable, to bring into effect a Practice Direction excluding section 204 appeals from the matters that district judges can deal with.  These appeals have taken the place of the judicial review applications challenging local authorities’ homelessness decisions that, before the advent of the 1996 Act, would have been dealt with by High Court judges in the Crown Office list.  The intention of Parliament in creating a procedure whereby these challenges could be made by appeals to the county court was, I am sure, that the appeals would be heard by circuit judges.  It is my hope that, pending the preparation and bringing into effect of the requisite Practice Direction all section 204 appeals will be listed for hearing by circuit judges.

Order: Appeal allowed; order as in page 15 of Judgment: costs DJ (District Judge) Judge Anthony appellant has costs not to be enforced without leave of the court: appellant have costs of the appeal but an order under S18 against the Legal Aid Board.  Permission to appeal to House of Lords refused.  Order does not form part of the approved judgment.