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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Godfrey, R (on the application of) v Conwy County Borough Council [2001] EWHC Admin 640 (6 July 2001) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2001/640.html Cite as: [2001] EWHC Admin 640

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Liverpool Combined Court Centre Derby Square Liverpool
		Friday, 6th July 2001

1. MR JUSTICE SCOTT BAKER: The claimant lives alone on a smallholding in Abergele in North Wales. The house is of wooden construction supported by piles raised above ground level. The house was, and indeed still is, in poor condition. He says that it was and is unfit for habitation within the meaning of the Housing Act, and I do not think that there is any dispute about that.
2. In 1995 the claimant became aware that renovation grants were available to people in his situation. At that time the grants were mandatory under the Local Government Housing Act 1989, but the law changed, and on 17th December 1996 the Housing Grants, Construction and Regeneration Act 1996 came into force. Grants ceased to be mandatory and became discretionary.
3. The requirement on local authorities to make mandatory grants had become a cripplingly expensive exercise. Parliament decided that henceforth there was only to be a limited pot from which each local authority could provide for grants on a discretionary basis. There were transitional provisions to bridge the change from the old law to the new. These are not relevant for present purposes.
4. In 1995 the claimant's property was without a WC and in a serious state of disrepair. There is no doubt but that it was eligible for a mandatory grant subject to contribution under section 112 of the 1989 Act. Unfortunately, the claimant never applied for a mandatory grant. What he did was to send in a grant enquiry form, which was the first step in the process, such document being submitted to everybody who made enquiries about a mandatory grant who was in a similar position to the claimant.
5. We find the form in bundle E at page 4 and following. At page 4 is the document headed "Grant Enquiry Information and Advice Notes" and underneath there are a number of paragraphs. Number 1 says:

"Would you please note that by filling out this form you are making an ENQUIRY not an APPLICATION - this is to enable us to find the best possible way of helping you. You will be advised in easy steps of what is required to make an application."

6. Number 2 reads:

"By returning this completed form to us you will be registered as an enquirer from the date of receipt, and you will be advised by a Grants Officer in the near future who will assess your needs."

7. Then the form begins at page 5 and it is headed "Enquiry Form For Grant Aid" and immediately under that there is the wording:

"Notes to enquirers:

This is an enquiry form and should not be confused with a formal application."

8. So it seems to me abundantly clear that no-one could have been in any doubt that what was being submitted was an enquiry form rather than an application form.
9. The enquiry form was submitted by the claimant and a response came from the defendant on 10th July 1995 which says:

"RE: Grant Enquiry

Thank you for your letter dated 28th June.

In it you ask for more information of the proposed works. I feel the only answer is for someone to visit the property in order to decide what is needed to bring it up to standard.

Regarding accounts, I have none."

10. I should have indicated that this letter of 10th July was a follow-up from the claimant to the local authority who had responded to his initial enquiry.
11. The significance of the letter is that it makes it clear, if there were any doubt about it, that what the claimant has made is an enquiry rather than a grant application.
12. Indeed, the defendant at that juncture had no power to pay a grant. This is clear from section 102 of the 1989 Act, which is to be found at bundle D at divider 7. Section 102(1) provides:

"No grant shall be paid unless an application for it is made to the local housing authority concerned in accordance with the provisions of this Part and is approved by them."

13. Subsection (4) reads:

"The Secretary of State may by regulations prescribe a form of application for a grant and an application for a grant to which any such regulations apply shall not be validly made unless it is in the prescribed form."

14. So it is perfectly clear that for there to be a grant application the application has to be made on the prescribed form.
15. There is, I think, little doubt but that the claimant qualified under section 112 for a grant because his premises were unfit for habitation, had he made an application. Section 112 provides:

"(1) Subject to the preceding provisions of this Part, on receipt of an application for a renovation grant (other than an application in respect of works required for the provision of one of more dwellings by the conversion of a house or other building), the local housing authority shall determine, in respect of the dwelling, whether the dwelling is fit for human habitation.

(2) In any case where the local housing authority -

(a) determine under subsection (1) above that a dwelling is not fit for human habitation, and

(b) consider that completion of the relevant works will cause the dwelling to be fit for human habitation, and

(c) are satisfied that completion of the relevant works is the most satisfactory course of action,

then, subject to subsections (4) and (5) below, they shall approve the application so far as it relates to that dwelling."

16. It will be observed that section 112(2)(c) which I have read refers to the local authority being satisfied that completion of the relevant works is the most satisfactory course of action, i.e. as against closure or demolition.
17. The defendant's Mr Campbell visited the property on a date in November 1995 and this led to a schedule of works being drawn up. We see the circumstances relating to this meeting, which took place on 21st November 1995, at pages 12 and 13 of bundle E.
18. However, the question of the best course of action under section 112(2)(c), although, as Mr Hale submits, there may have been no practical doubt about it, was not in fact resolved until March 1998, which we see from page 74 of the same bundle in a letter, the terms of which are of critical importance in this case. I shall read the whole letter:

"Thank you for your letter dated 2 March 1998, concerning your current Renovation Grant application, for the above property.

I must apologise for the delay in response to the submitted documentation, however, it is the Council's duty under the Housing Act legislation, to consider the best course of action when dealing with each individual case. Following receipt of the estimates for the work, and taking into account the unusual construction of the property, I am sure you will appreciate that this process has been more complex and detailed than usual.

I can confirm that renovation has been found to be the most satisfactory course of action and your contractor's estimate is currently being assessed against the Council's eligible costs, to determine the level of grant that can be offered to you.

On completion of this process a grant approval letter will be sent to you. I hope this brings you up to date with the situation concerning your application."

19. In August 1995 the defendant had sent out a circular to all who had made grant application enquiries or applications warning of the impending change of legislation. The claimant has no recollection of receipt of that circular. The factual issue whether he did or did not receive it is, in my judgment, immaterial because it is not disputed that he never in fact made an application for a mandatory grant. What he did eventually do is to be found at B/409. He made a formal application but this was for a discretionary grant, which was the only kind of grant that was by that time available. He had already incurred considerable cost. We see, for example, the letter of 3rd March 1997, which was some 16 days before he made his formal application for a grant, that he had already incurred surveyor's fees of £995.
20. Under the discretionary grant system the Council developed a new policy. This policy is to be found set out in detail in bundle E, in particular at divider 6 and 7. It is unnecessary to refer to the whole of its contents, but it provides at paragraph 5.8:

"In the initial months following the introduction of the Housing Grants, Construction and Regeneration Act, the authority's activities will be limited by the need to process existing applications and enquiries. The following priority order is adopted for the processing of applications currently lodged with the authority.

First Priority

Full applications received prior to 17 June 1996 i.e. applications for Mandatory Grant.

Second Priority

Full applications received between 17 June 1996 and 17 December 1996.

Third Priority

Enquiries received prior to 17 December 1996.

Fourth Priority

Full applications and enquiries received after 17 December 1996...",

which of course included the claimant because his full application was not made until March 1997. The policy goes on:

"In relation to priorities three and four, it is proposed to assess individual applications/enquiries using a weighted points system so that greater priority may be given to properties in the most serious and dangerous state of repair, and those client groups who would be most vulnerable to risks to their health and safety."

21. Then other details are provided with regard to general policy matters, such as delegated authority, and also the priority points system.
22. In adopting a points system the local authority was following the advice of Welsh Office Circular 59/96. This system was an important guide to the decision whether or not to make a discretionary grant, but it was not the be all and the end all. This is to be seen from paragraph 5.5 of the policy, which is important:

"In deciding whether to offer grant assistance, the authority's renewal strategy should not override the general duties and therefore the authority may not refuse to consider or refuse an application which does not meet its criteria without some mechanism for determining applications which fall outside the policy. Any criteria adopted should always include provision to ensure that where a strong case based on need has been established, the individual application is considered on its merits, even where it does not fall within the Council's strategic objectives."

23. The Council clearly had well in mind the general law that where a discretion is given to a decision making body, the decision making body is perfectly entitled to adopt a particular policy in dealing with applications to exercise that discretion, but the policy cannot be operated rigidly and the individual circumstances in relation to each case have to be considered as against the background of the policy.
24. The purpose of the points system was to categorise applicants in some kind of priority order. There is absolutely no doubt that the defendant was guilty of inordinate delay in processing both the claimant's application and his enquiries and those of many others. Some explanation is given in the affidavit of Mr Gareth Wyn Griffiths. I read from paragraph 17 at page 40 of bundle C:

"During the whole of 1997 and the early part of 1998, the Respondent was still processing applications for mandatory grants which had been received prior to the change in legislation. This order of processing was in accordance with Paragraph 5.8 of the policy. Regrettably, this meant that the Applicant (who submitted his application in March 1997) and many others had to wait until the earlier applications had been determined.

18. It was decided that, in order to assess outstanding applications and enquiries relative to one another, they would all be assessed at the same time. This assessment was commenced in April 1998 and was carried out by Nuras Limited ('Nuras') as contractors.

19. We briefed the surveyors employed by Nuras, in particular so as to ensure uniformity of application of the criteria. Standard forms were provided which included a brief report on the property as well as the points assessment. Surveyors were asked to report back on any additional matters which might be relevant.

20. In total, 647 properties were assessed as potentially qualifying for grant aid. Others were surveyed and found to be fit. The Nuras survey was completed by about August 1998. The results were as follows:

Properties in 4th quartile (270 plus points) 6.

Properties in 3rd quartile (181 to 270 points) 34.

Properties in 2nd quartile (91 to 180 points) 145.

Properties in 1st quartile (0 to 90 points) 462."

25. The claimant's Nuras assessment realised a figure of just 75 points, which put him in the lowest quartile. This was later revised to 90 points, but that still put him in the bottom quartile, albeit at the very top end of it. Mr Griffiths continued in his affidavit:

"Every report received from Nuras was considered by one of the Respondent's grants officers before a decision was taken on the application. The number of points allocated under the assessment was extremely important, but it was not the sole determining factor. Officers were instructed to consider whether there were any special circumstances which might lead to the approval of a grant, notwithstanding the fact that a comparatively low number of points were allocated. In a limited number of cases, it was found that they merited special consideration and were referred to the Sub-Committee itself for determination. This was in accordance with Paragraph 53 of the adopted policy and on the 28th October 1998 I recall a case being taken to the subcommittee concerning a contaminated water supply. At a subsequent meeting a grant was approved for the property including the provision of a bore hole water supply. The case was identified from the pointing system used and the Officer decided to take it before the subcommittee."

26. So it seems to me abundantly clear from the evidence that there was not a rigid application of a policy instead of appropriately exercising a discretion.
27. I have been told, although I do not think it appears in the evidence anywhere, albeit it is not in dispute, that those with a points count up to and including 180 generally did not receive a discretionary grant. So the claimant, with a figure of 90, was some way below the cut-off level.
28. The defendant's decision eventually emerged in February 1999, at page 73 of the bundle. This was reconsidered but the application maintained in May 1999.
29. There is, in my judgment, no doubt but that the claimant thought that the letter from the Council dated 12th March 1998 was the green light. He thinks that the terms of that letter told him that he was getting a grant. I can understand how he reached that conclusion. Mr Thomas, for the defendant, says that the letter does contain some ambiguity, but, he points out, the letter does not say positively, you will be awarded a grant, nor does it say that a positive decision had been taken that he would receive a grant, and indeed no such positive decision had been taken.
30. I have no doubt whatever, as I have indicated, that the letter did mislead the claimant and, in my judgment, understandably so. It should not have been written in those terms. A letter written in such terms, in my judgment, falls below the standard of professionalism expected of a council in the defendant's position.
31. That said, however, this letter is the highwater mark of the claimant's case that he was assured that he would be awarded a grant. Was it a clear, precise and unambiguous representation? That is how the question needs to be posed with regard to the law on legitimate expectation.
32. I was referred to R v Jockey Club, ex parte RAM Racecourses Ltd [1993] 2 All ER, and in particular to the passage that we find at page 91 of the bundle. It is not a very satisfactorily transcribed report, but the relevant passage reads as follows from the judgment of Stuart-Smith LJ:

"For reasons which will appear I propose to consider the substantive issue before that of jurisdiction. The law in relation to legitimate expectation created by a public body was concisely stated by Bingham LJ in the recent case of R v Board of Inland Revenue, ex parte MFK Underwriting Agencies Ltd [1990] 1 All ER 91 at 110... Bingham LJ said:

'In so stating these requirements I do not, I hope, diminish or emasculate the valuable developing doctrine of legitimate expectation. If a public authority so conducts itself as to create a legitimate expectation that a certain course will be followed it would often be unfair if the authority were permitted to follow a different course to the detriment of one who entertained the expectation, particularly if he acted on it. If in private law a body would be in breach of contract in so acting or estopped from so acting a public authority should generally be in no better position. The doctrine of legitimate expectation is rooted in fairness. But fairness is not a one-way street. It imports the notion of equitableness, of fair and open dealing, to which the authority is as much entitled as the citizen.'

[Stuart-Smith LJ continued] The doctrine has many similarities with the principle of estoppel in private law. In my judgment the matters that the applicant has to prove in this case are these. (1) A clear and unambiguous representation (see Bingham LJ...) (2) That since the applicant was not a person to whom any representation was directly made it was within the class of persons who are entitled to rely upon it; or at any rate that it was reasonable for the applicant to rely upon it without more (see A-G of Hong Kong v Ng Yuen Shiu [1983] 2 All ER 346 at 351... (3) That it did so rely upon it. (4) That it did so to its detriment. While in some cases it is not altogether clear that this is a necessary ingredient, since a public body is entitled to change its policy if it is acting in good faith, it is a necessary ingredient where, as here, an applicant is saying, 'You cannot alter your policy now in my case; it is too late'. (5) That there is no overriding interest arising from their duties and responsibilities for the proper conduct or due encouragement of horse-racing as required in their charter which entitled the Jockey Club to change their policy to the detriment of the applicant.

The burden of proving the first four points is, in my judgment, upon the applicant. It is the submission on behalf of the Jockey Club that it has failed to satisfy this burden in each respect. As to the fifth requirement, it seems to me that that is a matter for the Jockey Club to establish."

33. I was also referred to the judgment of Carnworth J in R v Shropshire County Council ex parte Jones, Administrative Law Reports 1996 at page 625. The passage relied on is at page 633 at G, where the judge said:

"However, even if he was told it was 99 per cent certain, that would not give rise to a binding assurance. Certainly I find it impossible to hold that he was given any such clear and unambiguous assurance as would give rise to a binding commitment under the well-established principles which have been summarised, for example, in R v The Jockey Club..."

34. In my judgment, although the letter of 12th March gets quite close to amounting to a clear, precise and unambiguous representation, when one does examine the letter closely in the context of the background legislation and the circumstances, I am unable to find that it meets the strict test as set out in the Jockey Club case.
35. However, and perhaps more significantly, I am unpersuaded that there is any evidence that the claimant in fact acted to his detriment following that letter. It seems to me that the evidence of expenditure is that it was incurred earlier than the date of the letter, and I have not had my attention drawn to any expenditure which could be said to point unequivocally to having been spent in consequence of that particular representation. It is certainly true that the claimant did quite a lot and incurred a good deal of expenditure in getting himself in the position to apply for a grant, as we see from the bill for £995 to which I have already referred, but that, unfortunately for the claimant's position, is not sufficient for the purposes of this case.
36. I note from the headnote in particular in Norfolk County Council v Secretary of State for the Environment that it was held in that case that before the local planning authority was estopped from denying the validity of the notice, the applicants had to show that they were induced by the representation in it to act to their detriment, and since the applicants had admittedly not acted to their detriment, the local planning authority was not bound by the notice.
37. I have therefore reached the conclusion that, from the viewpoint of the law of legitimate expectation, no legitimate expectation was raised in the circumstances of this case.
38. I should add that it is clear, in my judgment, that the misapprehension that the claimant was clearly under was quite soon corrected. At bundle C, page 44, Mr Griffiths says:

"The Applicant was very soon disabused of this misapprehension. Nuras wrote to all outstanding applicants informing them of the intention to carry out the points assessment. A standard letter was sent out dated dependent on the anticipated date of the intended inspection. The property was then visited by Nuras on the 19th of May 1998, as well as by grants officers on the 6th of May 1998 and the 26th of May 1998. The Applicant therefore discovered within a matter of weeks that there was still the issue of prioritisation to be determined."

39. There is a factual dispute because the claimant says he never received any material documentation, but it seems to me that, looking at the circumstances of the exercise that Nuras was undertaking, it must very soon have been abundantly clear to the claimant that he was not, as night follows day, going to get the grant as he had anticipated immediately after receipt of the 12th of March letter. In any event, the position is made a little clearer in bundle B at page 333 because on 12th November 1998 the claimant wrote to the defendant saying:

"Some months ago Mr A Richards informed me by phone that I would not be getting a grant and that I would receive a letter to that effect in about two weeks."

40. It is unclear how long ago is a few months before November 1998, but it may very well have been some time in the late spring or early summer, and all this, in my judgment, goes to indicate that there really only was a short period of time when the claimant could have been under a general misapprehension as to the grant position.
41. The next question is whether the decision to disallow a grant in the claimant's case was, in the circumstances, unfair. One of the matters referred to in the Jockey Club case relates to the fact in the present case that there were other competing applicants, and the point taken by the defendant is that the award of a grant to the claimant, who was, on any view, a very long way down the line of priority, would have been unfair to others who were higher in the list. This is a point which, in my judgment, only takes matters so far because if the position of the claimant was such that there was a general legitimate expectation within the meaning of the law, then it seems to me that something would have had to be done about it, regardless of the position of other applicants.
42. I was also referred to the case of R v North and East Devon Health Authority ex parte Coughlan [2000] 2 WLR 622. I was referred, in particular, to passages at page 37 and following, 40 and following and 43 of the bundle. The particular passage that I propose to cite begins at paragraph 56 of the judgment:

"What is still the subject of some controversy is the court's role when a member of the public, as a result of a promise or other conduct, has a legitimate expectation that he will be treated in one way and the public body wishes to treat him or her in a different way. Here the starting point has to be to ask what in the circumstances the member of the public could legitimately expect. In the words of Lord Scarman in In re Findlay [1985] AC 318, 338, 'But what was their legitimate expectation?'. Where there is a dispute as to this, the dispute has to be determined by the court, as happened in In re Findlay. This can involve a detailed examination of the precise terms of the promise or representation made, the circumstances in which the promise was made and the nature of the statutory or other discretion.

57. There are at least three possible outcomes. (a) The court may decide that the public authority is only required to bear in mind its previous policy or other representation, giving it the weight it thinks right, but no more, before deciding whether to change course. Here the court is confined to reviewing the decision on Wednesbury grounds... This has been held to be the effect of changes of policy in cases involving the early release of prisoners: see In re Findlay...; Reg v Secretary of State for the Home Department, Ex parte Hargreaves... (b) On the other hand the court may decide that the promise or practice induces a legitimate expectation of, for example, being consulted before a particular decision is taken. Here it is uncontentious that the court itself will require the opportunity for consultation to be given unless there is an overriding reason to resile from it (see Attorney-General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629) in which case the court itself will judge the adequacy of the reason advanced for the change of policy, taking into account what fairness requires. (c) Where the court considers that a lawful promise or practice has induced a legitimate expectation of a benefit which is substantive, not simply procedural, authority now establishes that here too the court will in a proper case decide whether to frustrate the expectation is so unfair that to take a new and different course will amount to an abuse of power. Here, once legitimacy of the expectation is established, the court will have the task of weighing the requirements of fairness against the overriding interest relied upon for the change of policy."

43. In my judgment, there was not, within the meaning of the law, a legitimate expectation in the present case, but even were I wrong in my construction of the letter of 12th March, it seems to me that the conduct of the Council is not so unfair that to permit the Council to proceed in the way it has is to amount to an abuse of power. I particularly bear in mind the short period of time during which the claimant was under a misapprehension.
44. I turn therefore to look at other aspects of the discretionary grant. In the first place, the decision was not reached within the statutory period of six months as it should have been, but a decision has now been reached, and this is not a matter which, in my judgment, gives rise to any remedy.
45. I am also satisfied, as I think is apparent from my judgment thus far, that, in operating the points system in the way that the defendant did, did not amount to any fetter on their discretion. The defendant followed the guidance of the Welsh Office Circular. The points system was an important guide but the decision whether or not to award a grant remained a broader question. There was also some flexibility in the points assessment and Nuras were instructed to provide further comments on the properties that they assessed in addition to the points assessments itself. The decision not to award a grant was not limited to the points exercise. The grants officer handling the application was familiar with the property and with previous events. The file was reviewed, the results considered and discussed with the claimant. It is also plain from paragraph 5.5 of the policy that the officer had a discretion to place a case which did not qualify on points before the Subcommittee for special consideration, and this did happen from time to time.
46. The next question is whether the points system itself was clearly defective. In my judgment, it was not. It was suggested in the skeleton argument, although not seriously pursued before me, that the points system was manifestly unfair because it was designed for brick built properties. It is perfectly clear that only 10 out of some 640 points related to brick built properties alone, and I am quite unpersuaded by that point.
47. The next question is whether the points system as applied in the case of the claimant is amenable to judicial review. Mr Thomas' answer to this point is on the following lines, and I accept it:

"The status of the Nuras report is that of a factual or expert's report to the decision making authority."

48. He submits that to allow judicial review of the assessment is not only going behind the decision, but also going behind the evidence on which it was based. He submits that decisions of fact are not broadly amenable to judicial review and that the court should not reopen such questions, particularly in the light of circumstances such as here where:

(1) the assessments involved technical evaluations;

(2) special training was given to the surveyors who carried out the assessments in order to ensure consistency;

(3) the whole purpose of the points assessment was to enable the defendant to judge the comparative merits of numerous applications - the court is in this case being asked to consider in isolation one of 647 different properties which were subjected to the same study;

(4) a review of the decision in this case would distort the result compared with other applicants, for example, submits Mr Thomas, it would be wrong to award 40 points for a deemed statutory notice when precisely the same argument would apply to nearly every other property;

(5) the court is being asked to interpret the application of the defendant's own rules; and

(6) the defendant has considered the claimant's representations and the decision has been confirmed, indeed with an increased number of points.

49. It is said that the defendant did not award sufficient points to the claimant under its own scheme. I accept the submission of the defendant that the Nuras assessment was entirely consistent with the findings on the original survey. It has never been the defendant's case that the structure was unfit. The scheme for repair only included structural work because the best course of action required a 15 year future life, as appears from Mr Griffiths' affidavit.
50. In these circumstances, although I have very considerable sympathy with the claimant, who, in my judgment, has been shabbily treated by the defendant Council, I am unable to conclude that he makes out any case for judicial review of the decision to refuse him a grant. Accordingly, this application is refused.

MR THOMAS: Your Lordship's comments regarding the treatment of the applicant are fully accepted and are noted.

MR JUSTICE SCOTT BAKER: Yes.

MR THOMAS: My Lord, I do apply for costs against the applicant not to be enforced without permission. He is legally aided.

MR JUSTICE SCOTT BAKER: He is legally aided, is he?

MR THOMAS: He is.

MR HALE: My Lord, given your comments as to the way in which the Council conducted themselves in respect of Mr Godfrey, of course costs are entirely in your discretion.

MR JUSTICE SCOTT BAKER: And of course the point has just been accepted, has it not?

MR HALE: Absolutely. My Lord, in my submission, this may even be a case where my Lord should consider that it was an appropriately brought application, even though my Lord has ruled against it, and my Lord could exercise his discretion in favour of costs against the Council.

MR JUSTICE SCOTT BAKER: I think no order as to costs is the answer.

Thank you. I am grateful to you both for your assistance.

MR HALE: I am legally aided and I am told I need detailed assessment.

MR JUSTICE SCOTT BAKER: You can have a detailed assessment provided, of course, the certificate is on the file, which I imagine it is.

MR HALE: I have a copy which I can file now.