Bubb v London Borough of Wandsworth

An appeal to the county court under section 204 of the Housing Act 1996 is confined to points of law and is substantively equivalent to judicial review. The section 202 reviewing officer remains the primary fact-finder. The court may quash a factual finding where it lacks evidence, is plainly untenable, or rests on a misunderstanding or ignorance of an established and relevant fact.

Oral evidence may be admitted in judicial review proceedings, but only in the most exceptional cases. The intensity of review may vary with the nature and gravity of what is at stake. A judge may adopt the detailed reasons of the primary decision-maker without repeating them, provided the parties and an appellate court can understand why the conclusion was reached.

The local authority accepted that the appellant was homeless, eligible, in priority need and not intentionally homeless. It provided temporary accommodation and later contended that it had made a final offer of more permanent accommodation. The appellant denied receiving the letter which contained the information required by section 193(7) of the Housing Act 1996.

A reviewing officer found that the letter had been delivered, that the offered accommodation was suitable and that the authority's housing duty had ended. His Honour Judge Ellis dismissed the appellant's section 204 appeal in the Croydon County Court.

The Court of Appeal considered whether the county court should determine the disputed fact itself, whether oral evidence should have been heard, and whether the reviewing officer's finding could withstand judicial review scrutiny.

1. Appeal dismissed. The Court of Appeal unanimously held that the reviewing officer's finding that the appellant received the final-offer letter could not be impugned.

2. Part 7 of the Housing Act 1996 assigns a dispute about the cessation of the housing duty to the section 202 review process. Section 204(1) confines a county court appeal to a point of law. The county court therefore has no jurisdiction to constitute itself the finder of the relevant primary facts. Its function is substantively the same as judicial review, consistently with Runa Begum v Tower Hamlets London Borough Council [2003] UKHL 5.

3. The reviewing officer is the primary fact-finder. A court may nevertheless quash or reverse a factual finding where there is no supporting evidence, the finding is plainly untenable, or the decision-maker misunderstood or was ignorant of an established and relevant fact. Review operates on a sliding scale. A court may scrutinise a finding more carefully where a hotly disputed fact has grave consequences for an applicant, while remaining within its reviewing function.

4. A court conducting judicial review may permit oral evidence. That course should be confined to the most exceptional cases because the court reviews the decision rather than making a fresh one. Regular admission of witnesses and cross-examination would also increase time and costs. Nothing in that principle prevents the flexible and practical conduct of section 204 appeals. There was no conceivable basis for oral evidence in this case because the review addressed the evidence and arguments fully and no relevant new evidence had emerged.

5. A judge must give sufficient reasons to disclose why the decision was reached. Where a primary fact-finder has given detailed reasons and the judge accepts that conclusion for those reasons, the judge need not repeat all the evidence and arguments. Excessively defensive judgment writing should be avoided. A complete absence of independent reasoning may nevertheless increase the prospect of permission to appeal where real doubt is cast on the original decision.

6. Applying the appropriate scrutiny, the reviewing officer had made detailed enquiries and identified evidence supporting delivery. His conclusion was neither unsupported nor plainly untenable, and he had not misunderstood or ignored any established and relevant fact. The county court's dismissal of the statutory appeal therefore stood.

1. Court of Appeal (Civil Division): The appeal was dismissed unanimously. The court upheld the reviewing officer's factual conclusion and the county court's refusal to quash it: [2011] EWCA Civ 1285.

2. Croydon County Court: His Honour Judge Ellis dismissed the appellant's section 204 appeal on 23 July 2010. No neutral citation is stated.

3. Section 202 review: Following the quashing of an initial review, the reviewing officer issued a further decision on 15 March 2010. He found that the appellant had received the final-offer letter, that the accommodation was suitable, and that the authority's duty had ceased.