Cocks v Thanet District Council

A statutory housing duty enforceable in private law arises only after the housing authority has made the public law decision which constitutes its condition precedent. An applicant seeking to overturn an adverse decision of the authority must therefore proceed by judicial review. An ordinary action used to evade the safeguards of judicial review is, as a general rule, an abuse of process.

The court may quash the authority’s decision and require it to decide the matter afresh, but may not substitute its own decision. Once the statutory housing duty has been established, its breach may be restrained by injunction and may support an action for damages. A public law decision may also be questioned collaterally where its validity properly arises within an ordinary action.

The respondent, who asserted that he and his family were homeless and in priority need, brought county court proceedings against the appellant housing authority. He claimed declarations, mandatory injunctions and damages for alleged breaches of the temporary and full housing duties under the Housing (Homeless Persons) Act 1977.

The proceedings were transferred by consent to the Queen’s Bench Division for determination of a preliminary issue: whether the respondent could proceed by ordinary action or was required to apply for judicial review. Milmo J decided in the respondent’s favour because he was bound by De Falco v Crawley Borough Council [1980] 1 QB 460. He certified the issue for a direct appeal under section 12 of the Administration of Justice Act 1969.

The House had to determine the proper procedure for challenging a housing authority’s adverse statutory decision where that decision prevented the applicant from establishing a private law housing duty.

1. Appeal allowed unanimously. Lord Bridge of Harwich delivered the leading speech. Lord Diplock, Lord Fraser of Tullybelton, Lord Keith of Kinkel and Lord Brightman agreed with his reasons and proposed order.

2. Per Lord Bridge, the functions imposed upon a housing authority by the Housing (Homeless Persons) Act 1977 fall into two distinct categories. Determining whether there is reason to believe that an applicant may be homeless or in priority need, making the required inquiries, and deciding whether the statutory conditions are satisfied are public law decision-making functions committed exclusively to the authority. Such decisions are challengeable only on established public law grounds, including procedural unfairness, an impermissible factual conclusion, or an unreasonable exercise of discretion.

3. Once the authority has made the decision which gives rise to a temporary, limited or full housing duty, private law rights and obligations arise immediately. An established duty may be enforced by injunction, and its breach may give rise to damages. The required public law decision is nevertheless a condition precedent to that private law liability.

4. The reasoning in De Falco v Crawley Borough Council [1980] 1 QB 460, that an applicant could challenge an intentional-homelessness decision either by action or judicial review, was false. An ordinary action cannot enable the court both to review the authority’s decision and to substitute the contrary decision needed to establish private law liability. Thornton v Kirklees Metropolitan Borough Council [1979] 1 QB 626 established only that damages are available once the existence and breach of the statutory duty have been established.

5. Adopting Lord Diplock’s reasoning in O’Reilly v Mackman, Lord Bridge held that the general abuse-of-process rule applies where the challenged public decision prevents the establishment of a statutory private law right. The leave requirement, sworn evidence, controlled discovery and cross-examination, procedural speed and protection against undue delay justified requiring judicial review under Order 53.

6. The court cannot substitute its decision for that of the housing authority. Ordinarily, the appropriate remedies are certiorari to quash the adverse decision and, where necessary, mandamus requiring lawful redetermination. The rule derives from the English court’s inherent power to prevent abuse of its process, rather than any limitation upon county court jurisdiction. A public law decision may still be challenged collaterally where its validity properly arises in an ordinary action.

7. The High Court’s order was set aside, apart from its legal-aid costs provision. It was declared that the respondent could not continue the proceedings otherwise than by an application for judicial review, and the cause was remitted to the Queen’s Bench Division.

1. House of Lords: Allowed the housing authority’s appeal unanimously. The House set aside the Queen’s Bench Division’s order, apart from its legal-aid costs provision, declared that the respondent could proceed only by judicial review, and remitted the cause.

2. Queen’s Bench Division: Milmo J determined the preliminary procedural issue in the respondent’s favour, being bound by De Falco v Crawley Borough Council [1980] 1 QB 460. He granted a certificate under section 12 of the Administration of Justice Act 1969 for a direct appeal to the House of Lords.

3. Thanet County Court: The respondent began an ordinary action seeking declarations, mandatory injunctions and damages. By consent, the proceedings were transferred to the Queen’s Bench Division for trial of the preliminary procedural issue.