London Borough of Richmond Upon Thames v Kubicek

On an appeal under section 204 of the Housing Act 1996, the county court generally determines points of law by reviewing the housing authority’s decision on the material before the reviewing officer. Fresh evidence may be admitted to establish how the decision was reached, including procedural impropriety, or to demonstrate a material mistake of fact causing unfairness. The latter ground requires an established and objectively verifiable fact, absence of responsibility by the appellant for the mistake, and material influence on the decision. A court cannot resolve disputed primary facts entrusted to the authority or depart from these principles merely because the issue is fundamental. Relevant fresh evidence must also satisfy the Ladd v Marshall criteria, subject to exceptional circumstances.

The Council decided that it owed no homelessness duty because it was reasonable for Mrs Kubicek to continue occupying the matrimonial home. Its review decision relied, among other matters, on alleged telephone calls answered by her husband. On appeal under section 204 of the Housing Act 1996, the county court admitted a late witness statement denying that the calls had occurred and directed a preliminary trial of that factual issue.

The Council appealed to the High Court, contending that the evidence was irrelevant and that the county court had no jurisdiction to determine primary facts entrusted to the local housing authority. The central questions were whether the new evidence was relevant and admissible, and whether a factual trial could properly be ordered.

1. Appeal allowed. The county court’s order admitting Mrs Kubicek’s witness statement and directing a preliminary issue trial was set aside.
2. An appeal under section 204 of the Housing Act 1996 on any point of law is in substance equivalent to judicial review. Questions of fact under Part VII are generally for the local housing authority. The usual appeal is therefore determined by considering the rationality and propriety of the review decision in light of the material before the reviewing officer.
3. Fresh evidence may nevertheless be relevant to show how the decision was reached. This includes evidence concerning the material before the reviewing officer or an alleged procedural impropriety, such as misconduct or a failure of natural justice. No such procedural issue was raised on the present appeal.
4. Fresh evidence may also be relevant to establish a material mistake of fact giving rise to unfairness. The requirements identified in E and R v Home Secretary are an existing factual mistake, an established and objectively verifiable fact, no responsibility on the appellant’s part for the mistake, and material influence on the decision. The alleged non-occurrence of the telephone calls was highly contentious, contradicted the evidence before the reviewing officer, and could have been raised earlier. The requirements were therefore not met.
5. Even if relevant, the evidence should not have been admitted. Under E and R v Home Secretary, the Ladd v Marshall principles apply, subject to exceptional circumstances. The evidence could have been obtained earlier, its credibility was doubtful, and it was unlikely to have materially affected the review decision.
6. The court had no discretion to step outside established administrative law principles because the factual issue was fundamental. Part VII vested responsibility for finding the relevant primary facts in the local housing authority. The county court had no jurisdiction to constitute itself as the fact-finder.

• Kingston upon Thames County Court: On 16 May 2012, Her Honour Judge Jakens admitted Mrs Kubicek’s witness statement and ordered a preliminary trial concerning whether the alleged telephone calls had occurred.
• High Court (Queen’s Bench Division): The Council’s appeal was allowed. The order dated 16 May 2012 was set aside.