Goodger v London Borough Of Ealing

On an application for permission to appeal, a proposed ground must provide a reasonable basis for appeal with some real prospect of success. A technically second appeal may be assessed in light of the fact that the challenged decision was itself an appeal from a tribunal, rather than a decision of a court or specialist tribunal. Arguments concerning late disclosure of a housing file and the scope of orders under section 204(iii) of the Housing Act 1996 were sufficiently arguable. The application was allowed, with costs in the appeal.

The Council decided on 23 May 2001 that Andrew Goodger was intentionally homeless because possession proceedings had been brought for breach of tenancy terms involving the sale of cannabis. On appeal under section 204 of the Housing Act 1996, His Honour Judge Oppenheimer found a breach of natural justice because the housing file was not supplied to Goodger’s solicitors until six working days before the review hearing. The Council applied to the Court of Appeal for permission to appeal, challenging that conclusion and the judge’s view that section 204(iii) prevented an order such as no order. The central questions were whether those grounds had a real prospect of success and whether the scope of the available orders required clarification.

1. Permission granted. The Court of Appeal allowed the application. The arguments disclosed reasonable grounds for appeal with some real prospect of success. Although the application concerned a technically second appeal, it was, in substance, the only appeal against a reasoned decision. The decision had been made on appeal from a tribunal and was not to be treated in the same way as a decision of a court or specialist tribunal.
2. Natural justice. The lower judge had held that Goodger’s solicitors lacked a sufficient opportunity to consider the housing file and make submissions because it was supplied only six working days before the review hearing. The Council argued that there was no evidence that six working days was insufficient, that the file required lengthy consideration, or that it contained material capable of benefiting Goodger’s case. The Court considered those arguments substantial enough to justify an appeal. It did not finally determine whether natural justice had been breached.
3. Available orders. The Court also considered it arguable that the lower judge had erred in treating the provisions of section 204(iii) of the Housing Act 1996 as preventing an order such as no order. It indicated that clarification of the scope of orders available on appeals of this kind would be helpful.
4. Order. The application was allowed. Costs were to be in the appeal.

• Court of Appeal (Civil Division). On 17 January 2002, in [2002] EWCA Civ 36, the court allowed the Council’s application for permission to appeal. Costs were to be in the appeal.
• High Court appeal, Brentford County Court. On 19 September 2001, His Honour Judge Oppenheimer allowed the matter to proceed on the basis that the Council’s procedure had breached natural justice by late disclosure of the housing file.
• Original housing decision. On 23 May 2001, the Council decided that Goodger was intentionally homeless following enforcement of a possession order based on breach of tenancy terms.