Ermakov, R (on the application of) v City of Westminster

Where a statute requires reasons to accompany an administrative decision, the reasons must be proper, adequate and intelligible. They must enable the affected person to understand the result and assess whether it may be challenged.

Under section 64 of the Housing Act 1985, the decision and its reasoned notification are practically inseparable. A court may cautiously admit evidence which elucidates or exceptionally corrects the stated reasons. Later evidence cannot validate the decision by substituting wholly different and contradictory reasons. Where the notified reasons are absent or fundamentally defective, the decision is prima facie unlawful without proof of prejudice. Relief should be withheld because later evidence suggests that reconsideration would produce the same result only in very exceptional circumstances.

Ermakov, R (on the application of) v City of Westminster concerned a homelessness applicant whose family had left accommodation in Greece after alleged harassment. Westminster City Council decided that the family had become intentionally homeless. Its notification letter rejected the harassment account, but an affidavit filed after judicial review began said that the decision-maker had accepted the account and considered that the accommodation nevertheless remained reasonable to occupy.

Sir Louis Blom-Cooper QC, sitting as a deputy High Court judge, admitted the affidavits, relied on the later reasons and dismissed the application for judicial review. The applicant appealed. The central issue was whether the Council could rely on reasons fundamentally different from those supplied with its decision under section 64 of the Housing Act 1985.

1. Appeal allowed unanimously. Hutchison LJ delivered the leading judgment. Thorpe LJ agreed, and Nourse LJ agreed completely with Hutchison LJ's general principles. The Council's decision was quashed and the matter remitted for proper reconsideration.
2. Section 64 of the Housing Act 1985 requires reasons when the decision is communicated. In this context it is unrealistic to separate the decision from its reasoned notification or to regard the duty as merely procedural. Reasons must be proper, adequate and intelligible. They must explain why the applicant has lost and enable an assessment of whether the decision is legally challengeable.
3. A court may receive evidence which elucidates the reasons or which exceptionally corrects or adds to them. It must proceed cautiously. Such evidence should ordinarily clarify rather than fundamentally alter the reasons, and confirm rather than contradict them. The approach in R v London Borough of Croydon, ex parte Graham was understood as permitting explanation in appropriate cases while discouraging the later filling of material gaps.
4. The Council's affidavit did not clarify the notification letter. The letter disbelieved the applicant's account, whereas the affidavit accepted it but found that the accommodation remained reasonable to occupy. The contrast was fundamental. The later reasons could not validate the decision, and the applicant did not need to prove prejudice. Nourse LJ added that the credibility-based reason in the letter was inherently more likely to discourage a challenge than the true reason, which raised a mixed question of fact and law.
5. Although judicial review is discretionary, relief should be refused on the strength of materially different reasons produced after proceedings began only in very exceptional circumstances. Quashing and remittal require genuine reconsideration, including an opportunity for further representations; they are not formal steps for reissuing the earlier result. The court did not determine the separate grounds concerning the adequacy of the Council's inquiries or the substantive finding of intentional homelessness. Certiorari was granted, costs were awarded to the appellant here and below, and leave to appeal to the House of Lords was refused.

1. Court of Appeal (Civil Division): In Ermakov, R (on the application of) v City of Westminster [1995] EWCA Civ 42, the court unanimously allowed the appeal, set aside the High Court's order, quashed the Council's decision and remitted the matter for reconsideration.
2. High Court, Queen's Bench Division: Sir Louis Blom-Cooper QC, sitting as a deputy judge, admitted the Council's affidavit evidence concerning its asserted true reasons and dismissed the application for judicial review on 7 September 1994.
3. Westminster City Council: On 18 January 1994 the Council notified the applicant that his family was intentionally homeless. The notification gave reasons which the Council later accepted were not its true reasons.