Lindsay v Birmingham City Council

On a renewed application for permission to bring a second appeal, permission should be granted where the proposed grounds raise a point of sufficient importance of principle or practice. The possible application of regulation 6(2) of the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 to a further review after an earlier decision has been quashed was such a point. So too was the question whether a procedural defect could properly be treated as immaterial. Challenges confined to inconsistency, irrationality, adequacy of reasoning or evidential weight did not meet that threshold.

The appellant was a homeless applicant owed a duty under section 193 of the Housing Act 1996. After she refused an offered sixth-floor tenancy, the local authority decided that it was discharged from its duty under section 193(5) or section 193(7). The first review decision was quashed on appeal because its reasons concerning her alleged fear of heights were inadequate.

The authority then conducted a further review, obtained additional information and again upheld its decision. The county court dismissed the appellant’s second appeal. It held that regulation 6(2) did not apply to the further review and, alternatively, that any procedural infringement was immaterial. The appellant sought permission for a second appeal on four grounds concerning inconsistency, procedural fairness, materiality and irrationality.

1. Disposition. Lord Justice May, with whom Lord Justice Pill agreed, granted the renewed application in part. Permission to appeal was granted on grounds two and three and refused on grounds one and four.
2. Ground one alleged inconsistency between the county court judge’s first and second decisions. The first decision had criticised the adequacy of the reasons, rather than the evidence. There was therefore no intrinsic inconsistency, and the issue was not suitable for a second appeal.
3. Ground four challenged the rationality of the further review decision and the weight given to the applicant’s failure to mention her fear of heights on occasions when it might have been expected. The decision letter and supporting material disclosed a rational and adequately reasoned decision. It was inappropriate to use a second appeal to seek general guidance on the weight to be given to evidence of that kind.
4. Ground two raised whether regulation 6(2) of the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 applied when a court had quashed an earlier review decision and the authority conducted a further review. The issue was of sufficient importance of principle or practice to justify permission, notwithstanding the hesitation expressed below.
5. Ground three concerned whether any procedural failure was material. Counsel relied on Ali v Newham LBC [2002] HLR 20 for the submission that a flawed decision should be upheld only where the result would inevitably have been the same, and that a possibility of a different outcome required an opportunity to make representations. Permission was granted on this consequential and independently important issue. The merits of the second appeal were not determined.

• Court of Appeal (Civil Division): On 12 December 2007, granted permission for a second appeal on grounds two and three and refused permission on grounds one and four. Permission had previously been refused on the papers by Mummery LJ.
• Birmingham County Court: HHJ McKenna dismissed the appellant’s second appeal against the authority’s further review decision. He held that regulation 6(2) did not apply to the further review and, alternatively, that any procedural infringement was immaterial.
• Birmingham County Court: On the first appeal, HHJ McKenna quashed the authority’s earlier review decision because its reasons concerning the alleged fear of heights were inadequate.