Feld v London Borough of Barnet

The apparent-bias inquiry requires the court to identify all relevant circumstances and ask whether a fair-minded and informed observer would see a real possibility of bias. In a statutory homelessness scheme, the fact that the same senior officer conducted an earlier review does not, without more, establish apparent bias when the later review concerns a fresh decision. The informed observer recognises the officer’s training, the statutory design, practical administrative constraints and the capacity of a conscientious decision-maker to change their mind. Regulation 2 of the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 applies to the officer who made the operative original decision under review, not to a senior officer involved in an earlier allocation assessment.

These joined appeals concerned reviews of final accommodation offers under the homelessness provisions of the Housing Act 1996.

Mr Feld challenged Barnet’s decision that a one-bedroom flat was suitable. Miss Winborn, who had participated in an earlier review concerning his accommodation needs, conducted the later review. Her Honour Judge Mayer dismissed his County Court appeal.

Miss Abbas Ali Pour challenged Westminster’s fresh review of a studio-flat offer. The fresh review, ordered by consent after her first County Court appeal, was conducted by the same reviewing officer as before. His Honour Judge Crawford Lindsay QC allowed her appeal for apparent bias and quashed the review decision.

The common issue was whether the officers’ previous involvement would lead a fair-minded and informed observer to conclude that there was a real possibility of bias.

Decision

1. Ward LJ, with Mance LJ and Jackson J agreeing, dismissed Mr Feld’s appeal and allowed Westminster’s appeal in Miss Abbas Ali Pour’s case. The County Court order in the latter case was set aside.

2. The governing inquiry was that in Porter v Magill, [2001] UKHL 67: the court identifies all circumstances bearing on the allegation and asks whether a fair-minded and informed observer would perceive a real possibility of bias. Where actual bias is not alleged, the relevant circumstances are those known when the decision is about to be made. The eventual decision itself is not examined for indications of bias.

3. A later homelessness review is a review of a fresh decision, not a second review of the earlier review. Similarity between the issues in the two reviews does not itself establish apparent bias. The informed observer would recognise that a trained and conscientious housing officer may change their view on new information or further reflection. The observer would also respect Parliament’s administrative scheme under Part VII of the Housing Act 1996, including its practical staffing and resource constraints.

4. On the particular additional facts in Mr Feld’s case, the Ombudsman’s involvement, Mr Hamilton’s adverse comment and Miss Winborn’s discussion with him did not create a real possibility that her judgment was influenced by bias. She was entitled to make necessary enquiries of him.

5. Regulation 2 did not invalidate Miss Winborn’s review. The reviewable original decision was the final offer made by the Voids and Lettings Manager, who was junior to her. Mr Hamilton’s earlier allocation decision was not itself subject to a section 202 review.

• Court of Appeal (Civil Division): In the joined appeals, dismissed Feld’s appeal and allowed Westminster’s appeal, setting aside the County Court order in Pour’s case: [2004] EWCA Civ 1307.
• Central London County Court: On 12 February 2004, Judge Crawford Lindsay QC allowed Miss Abbas Ali Pour’s appeal and quashed Westminster’s fresh review decision for apparent bias.
• Barnet County Court: On 5 December 2003, Her Honour Judge Mayer dismissed Mr Feld’s challenge to the reviewing officer’s impartiality.