How wide is the County Court’s jurisdiction on a homelessness appeal?

April 14, 2020

How wide is the County Court’s jurisdiction on a homelessness appeal?

Adrian Davis examines the recent decision in James v Hertsmere Borough Council [2020] EWCA Civ 489, in which the Court of Appeal ruled upon the scope of the county court’s jurisdiction when hearing a statutory homelessness appeal under section 204 of the Housing Act 1996.

Legal background

Section 204(1) HA 1996 permits a dissatisfied housing applicant to appeal to a county court on “any point of law arising from” a review decision (or, if not notified of a review decision, an original decision).

Prior to the decision in James, the key question was: do the words “any point of law arising from” a review decision mean that the county court’s jurisdiction in a homelessness appeal is limited to considering only points of housing law (“the narrow construction”) or can the court consider broader appeal points, such as whether a review decision has been lawfully made in accordance with a local authority’s contracting out agreement with a third party (“the wide construction”)?

In 2009, the Court of Appeal held that it was lawful for local authorities to contract out homelessness reviews to third parties under section 70 of the Deregulation and Contracting Out Act 1994: De-Winter Held v Brent LBC [2010] HLR 8.  However, in that case, the parties did not argue the issue of whether the county court had jurisdiction to consider the lawfulness of the authority’s contracting out process as part of the homelessness appeal.

In favour of the wide construction of the key words in section 204(1) are a number of cases which decided that the county court’s powers were similar to those of the High Court on judicial review: Nipa Begum v Tower Hamlets LBC [2000] 1 WLR 306, CA and Runa Begum v Tower Hamlets LBC [2003] 2 AC 430, HL.  Moreover, in the High Court decision of Tachie v Welwyn Hatfield BC [2013] EWHC 3972, Mr Justice Jay held that the wide construction was correct.

However, in obiter comments made in Panayiotou v Waltham Forest LBC [2018] QB 1232 CA, a case which also concerned the authority’s contracting out of its Housing Act functions, Lord Justice Lewison expressed his disquiet that such wide-ranging challenges were being permitted in homelessness appeals.  He pointed out that homelessness appeals were heard in the county courts because they had expertise in housing law, not in administrative law generally.

Accordingly, the state of the law on the issue of the scope of the county court’s jurisdiction was unsatisfactory and ripe for a decision to clarify the position…

The facts

Hertsmere BC contracted out its homelessness reviews to a private sector property management organisation called Residential Management Group Limited (‘RMG’).  Mr James made a homelessness application to it and was found, on review, not to be in priority need for accommodation.  He issued a homelessness appeal on three grounds: (i) the review decision was of no effect because Hertsmere had not lawfully contracted out its homelessness review function, and subsequent attempts to ratify it were void; (ii) failure to properly consider the Public Sector Equality Duty; and (iii) inadequate consideration of the issue of vulnerability.  The County Court Recorder dismissed all three grounds of appeal and upheld the review decision.

In his appeal to the Court of Appeal, Mr James abandoned his arguments on (ii) and (iii) and concentrated solely on his point about the lawfulness of contracting out. Essentially, his argument boiled down to three points, namely:

  • under section 204(1), the county court has jurisdiction in relation to any point of law. Such wording is wide enough to include a challenge by an applicant that the decision-maker had no power to make the review decision.  Moreover, the wide construction of section 204(1) was supported by the cases of Nipa Begum, Runa Begum and
  • practically, there are good reasons why the wide construction is to be preferred. If the county could only deal with housing law points, broader appeal arguments would have to be dealt with by the Administrative Court and splitting jurisdictions duplicates court time and costs.
  • on the facts of this case, the review decision had not been made in accordance with the terms of the agreement between Hertsmere and RMG, and this failure had not been remedied by subsequent actions.

In response, Hertsmere argued that:

  • the plain meaning of the words of section 204(1) made it clear that the narrow constructions was correct. The section focusses on the period of time between receipt of the review request and the notification of the review decision.  The reasoning given in Panayiotou was to be preferred.
  • furthermore, if the wide construction was correct, then challenges could be made to authorities’ constitutions and delegation powers, which may be divorced in substance and in time from the actual decision under appeal. Such a scenario militates against the presumption of regularity.
  • on the facts of this case, the review decision had been made in accordance with the terms of the agreement, and its subsequent extensions.

Held: (dismissing Mr James’ appeal)

First, the Court of Appeal decided that this was an appropriate case in which to rule on the scope of section 204.  The Court considered the state of the law to be unsatisfactory and the issue to be in need of a definitive ruling.

Second, the Court held that the wide construction of section 204(1) was correct.  It was influenced by the earlier cases which ruled that in homelessness appeals the county court has a jurisdiction akin to that of the High Court on judicial review. It was also persuaded by the practical downsides of splitting the jurisdictions between the county court and the High Court.  Furthermore, the Court pointed out that if a county court considered that an issue raised was one of general public importance, it could always transfer the appeal to the High Court under section 42 CCA 1984 in accordance with the criterion at CPR 30.3(2)(e); although it warned the county court to be “slow to identify an issue as one that it cannot determine for itself”.

Third, on the facts of this case, the review decision had been lawfully made in accordance with the terms of the contract between Hertsmere and RMG.

Accordingly, the Court of Appeal dismissed Mr James’ appeal.

Comment  

Mr James may have lost his appeal on the facts, but his case represents a significant victory for homeless applicants wishing to challenge their review decisions on grounds which lie outside of what may be called pure housing law points.

The Court of Appeal’s decision gives the green light to homeless applicants wishing to challenge a review decision on the basis that it has not been made in accordance with the terms of a contracting-out agreement between a local housing authority and a third party provider.  Authorities who contract out their homelessness review decision functions may wish to re-appraise the terms of those agreements and ensure that review decisions are made in accordance with them.