Tower Hamlets v Deugi

On an appeal under section 204 of the Housing Act 1996, the county court conducts a public law review. It may quash or vary an erroneous homelessness decision, but may substitute a finding that the full section 193(2) duty was owed only where a rational authority could have reached no other conclusion.

An authority cannot, after an appeal has begun, unilaterally withdraw its decision so as to prevent the appeal continuing where a variation could confer an enduring benefit. However, an erroneous decision on eligibility does not deem the authority to have decided that the applicant was not intentionally homeless. Where further rational enquiries might affect that issue, the court must not substitute the full housing duty.

The respondent sought homelessness assistance from the appellant local housing authority. The authority wrongly decided in January 2004 that she was ineligible because she was subject to immigration control. At that time she had a derived right of residence as the primary carer of a child in full-time education.

After the respondent appealed, the authority conceded that its January decision was wrong and purported to withdraw it. It later decided that she had ceased to be eligible. The Bow County Court varied the January decision into a finding that the authority owed the full duty under section 193(2) of the Housing Act 1996.

The authority appealed. The central issues were whether it could terminate the pending appeal by withdrawing its earlier decision, and whether the county court could find that the respondent was not intentionally homeless despite further enquiries not having been completed.

1. Appeal allowed in part. Lord Justice May, with whom Rix and Gage LJJ agreed, held that the county court had jurisdiction under section 204(3) of the Housing Act 1996 to do more than quash the erroneous January 2004 decision. An appeal under section 204 is a public law challenge, but the court may vary a decision where the authority, acting rationally, could only have reached the substituted conclusion.

2. The authority’s purported withdrawal did not end the appeal. It had not completed the statutory review before the respondent appealed. It could concede that its decision was wrong, but could not unilaterally prevent the appeal continuing if a favourable variation could give the respondent an enduring benefit. A later conclusion that eligibility had ceased had its own statutory consequence under section 193(6)(a), and did not require withdrawal of the earlier decision.

3. The judge was entitled to vary the decision to record that, in January 2004, the respondent was eligible for assistance and in priority need. Her derived residence right under Baumbast v SSHD [2003] INLR 1 established eligibility, and her position as the carer of the child logically established priority need.

4. However, the judge could not vary the decision into a finding that the full section 193(2) duty was owed. The authority had not decided whether the respondent was intentionally homeless. Following the public law approach in Crawley B.C. v B (2000) 32 HLR 636, such a finding was permissible only if there was no real prospect that rational further enquiries could lead to a different conclusion. The available material raised unresolved questions about the alleged domestic violence, the respondent’s departure from Morecambe and her accommodation thereafter.

5. The order was therefore varied to state only that, as at 20 January 2004, the respondent was eligible for assistance and in priority need. Any question of intentional homelessness would have required reconsideration by the authority, had subsequent events not overtaken it.

• Court of Appeal (Civil Division) allowed the authority’s appeal in part and substituted a variation limited to eligibility and priority need: [2006] EWCA Civ 159.

• Bow County Court (HH Judge Roberts) allowed the respondent’s appeal and varied the authority’s January 2004 decision into a finding that the full section 193(2) duty under the Housing Act 1996 was owed.

• Bow County Court (HH Judge Hornby) had earlier quashed the authority’s February 2004 review decision because its reasoning was flawed.