Court of Appeal confirms limited power of county court in s.204 appeals
Housing, Public Law and Judicial Review
LB Ealing v P, 5 November 2013
Arden, Sullivan and Davis LJJ
In allowing the appeal brought by LB Ealing, the Court of Appeal emphasized that the role of the county court in appeals under s.204, Housing Act 1996 is limited to points of law, whereas the local authority is the fact-finder. A county court judge had been wrong to vary a flawed review decision on the basis of new evidence, which the local authority had not had the opportunity to investigate.
The appellant local authority appealed against a decision to vary a review decision which found that the respondent (P) was not homeless. P, who was disabled and confined to a wheelchair, had an assured shorthold tenancy of a specially-adapted property. After complaining to police that she had been sexually assaulted and later raped by a near-neighbour, she made a written statement to the police. As a result of her allegations, P’s relationship with her neighbours deteriorated and she claimed to have been harassed and threatened. She sought homelessness assistance from the local authority under Part 7 of the 1996 Act. The local authority was satisfied that the current likelihood of violence or threat of violence against P was low and consequently decided that she was not homeless because suitable accommodation was available to her. P applied for a s.202 review of that decision. The review officer found that on the basis of all the information, including that P’s allegations of sexual violence were unproven, it was reasonable for her to continue to occupy her current accommodation so that she was not homeless. P appealed against that decision under s.204 of the 1996 Act.
Unlike the review officer, the judge had before him P’s statement to the police. He found that the local authority had failed to look into the allegations of sexual violence properly. The judge quashed the review decision and, having concluded that there was no prospect of the local authority properly finding that it was reasonable for P to remain in her property, varied the decision so as to find that P was homeless.
On appeal to the Court of Appeal, the local authority accepted that the review decision had to be quashed, but contended that the judge had gone too far in varying the order and that the matter should have been remitted for reconsideration. It submitted that the judge had wrongly reached his own conclusion on the merits on the basis of material not before the local authority.
Appeal allowed. In the context of a s.204 appeal on a point of law, the question for the judge was whether taking into account the statement to the police, there was a real prospect of the local authority properly finding that P was not homeless, Tower Hamlets LBC v Deugi  EWCA Civ 159,  H.L.R. 28 followed.
The local authority was the decision-maker and fact-finder in respect of homelessness decisions. It had not had the opportunity to consider the statement to the police and the possibility that the failure to do so was its own fault was irrelevant. The statement had not, however, persuaded the CPS to institute criminal proceedings, and the matter was plainly one that could be subject to further investigation. The critical question on the appeal was whether the judge had been entitled to conclude that P’s statement was so compelling that there was no prospect of a local authority rationally deciding that the alleged rape had not occurred, so that it would be unreasonable for P to remain in her current property. The statement was untested and the local authority had not had the opportunity to consider, much less investigate, P’s allegations. It was, accordingly, impossible to conclude that there was no real prospect that the local authority, acting rationally, might find that the alleged rape had not taken place. The judge had erred in varying the review decision, and the matter was remitted.
Matt Hutchings represented LB Ealing