Adan v Newham London Borough Council

A statutory appeal limited to a point of law does not become an appeal on fact merely because Article 6 requires the decision-making process as a whole to be fair. Where a homelessness review involves no material dispute about primary facts, the county court’s supervisory jurisdiction will usually suffice. Where material primary facts must be resolved by a non-independent reviewing officer, judicial review will generally lack the full jurisdiction required by Article 6. The majority held that section 3 of the Human Rights Act 1998 could not enlarge section 204 of the Housing Act 1996 by treating a point of fact as a point of law. An independent tribunal could instead be appointed through contracting out.

Fardous Adan, a Dutch citizen of Somali origin, sought housing assistance under Part VII of the Housing Act 1996. Newham rejected her application on the basis that she was not habitually resident in the United Kingdom. A reviewing officer upheld that decision.

On appeal under section 204, Bow County Court quashed the review decision. The judge also directed that the further review be conducted by a different officer satisfying Article 6 independence and impartiality requirements. Newham appealed against that direction. The parties asked the Court of Appeal to address whether the statutory homelessness-review scheme, combined with the county court’s appeal jurisdiction, complied with Article 6(1), particularly where material primary facts were disputed.

1. Appeal allowed. The county court had power to quash the reviewing officer’s decision, but no power to direct Newham to conduct the further review in a specified manner. Such a direction was in substance an order of mandamus, which was unavailable under section 38(3)(a) of the County Courts Act 1984. The direction requiring a different Article 6-compliant reviewing officer was deleted. There was no order as to costs.
2. Section 204 of the Housing Act 1996 confines the county court to an appeal on a point of law. Its power under section 204(3) to confirm, quash or vary a decision does not create an ordinary appeal on fact. The provisions of CPR Part 52 must be read subject to that statutory limitation and cannot enlarge the jurisdiction Parliament conferred.
3. The court considered the Article 6 issue at the parties’ request, although it was not necessary to dispose of the appeal. The majority held that the process will usually be sufficient where the primary facts are undisputed or the authority need not resolve a factual dispute. If a non-independent reviewing officer must determine material disputed primary facts, and the county court’s jurisdiction remains supervisory, the process will generally lack the full jurisdiction required by Article 6. A supervisory court cannot ordinarily substitute its own view of primary facts for a reasonable view adopted by the body entrusted with fact-finding.
4. Brooke LJ and David Steel J held that section 3(1) of the Human Rights Act 1998 could not justify interpreting an appeal on a point of law as including an appeal on a point of fact. The constitutional allocation of fact-finding responsibility was for Parliament to change. Hale LJ disagreed on this hypothetical issue. She considered that the court could determine whether the process as a whole complied with Article 6 and, if necessary, decide disputed facts itself.
5. All members of the court agreed that article 3 of the Local Authorities (Contracting Out of Allocation of Housing and Homelessness Functions) Order 1996 could be used to transfer the reviewing function to an independent and impartial tribunal. Nothing in the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 or paragraph 17.8 of the Code of Guidance prevented that course.

• Court of Appeal: Appeal from the Bow County Court allowed. The direction requiring a further review by a different Article 6-compliant reviewing officer was deleted. [2001] EWCA Civ 1916
• Bow County Court: HH Judge Laurie allowed Mrs Adan’s appeal from the reviewing officer, quashed the decision and directed a further review by a different officer.