Ealing Council v Purewal

On a statutory appeal concerning homelessness, the court must review the legality of the local authority’s decision, not decide the merits afresh. A failure to investigate or consider a material matter is distinct from irrationality. The usual remedy is to quash the decision and remit it for lawful reconsideration. The court may substitute the only legally permissible conclusion where the material omitted from consideration is so compelling that no rational decision-maker, acting with the benefit of further enquiry, could reach another conclusion. Untested evidence that the authority has not investigated will rarely justify substitution, particularly where the underlying allegation was not prosecuted and further enquiries could affect the factual assessment.

The respondent, a disabled woman living with her son, appealed under section 204 of the Housing Act 1996 against the council’s section 202 review decision. The council had upheld its earlier section 184 decision that accommodation occupied by the respondent remained available and that she was not homeless. Her case was that it was unreasonable to continue living there because she had been sexually assaulted and raped by a near neighbour and was subject to harassment and threats.

The county court allowed the appeal and varied the review decision to state that she was homeless. The council accepted that the review decision was unlawful because relevant matters had not been adequately investigated, but argued that the judge should have quashed the decision and remitted it rather than deciding the merits. The central issue was whether the material before the county court compelled only one lawful conclusion.

1. Appeal allowed. The county court was entitled to allow the section 204 appeal because the review decision failed properly to engage with the critical question whether it was reasonable for the respondent to continue occupying accommodation near the alleged rapist. The council’s reliance on the absence of a prosecution as showing that the allegation was unproven was an impermissible basis for deciding the issue, and its enquiries were insufficient because it had not obtained or considered the respondent’s section 9 statement or the cumulative circumstances of her case.
2. A section 204 appeal is an appeal on a point of law, not an appeal on the merits. The legality of the review decision must be assessed on the information available to the decision-maker. If relevant information was not obtained or considered, that may establish a failure to take relevant factors into account, but it does not, without more, make the decision irrational. The court must not use material that was unavailable to the authority to decide the merits of the homelessness question.
3. The ordinary consequence of an unlawful decision based on failure to consider relevant factors is that it is quashed and remitted for reconsideration. Substitution is permissible only where the material omitted from consideration is so compelling that there is no real prospect that the authority, acting rationally and with the benefit of further enquiry, might reach a different conclusion. That was the approach stated in Deugi v Tower Hamlets London Borough Council [2006] EWCA (Civ) 159, [2006] HLR 28, and applied here.
4. The untested section 9 statement was not sufficiently compelling to justify substitution. The council had not investigated it, had no opportunity to assess its detail, and the CPS had not brought a prosecution. The authority therefore had to make the first lawful decision. The review decision was to be quashed and the matter remitted for reconsideration. Lord Justice Davis and Lady Justice Arden agreed with Lord Justice Sullivan’s reasons. Lady Justice Arden added that the allegations required investigation with sensitivity and care because of their serious subject matter and the respondent’s vulnerability.

• Court of Appeal (Civil Division) allowed the council’s appeal, holding that the county court should not have substituted its own finding that the respondent was homeless. The review decision was to be quashed and the matter remitted for lawful reconsideration.
• Northampton County Court (His Honour Judge Bray, 14 November 2012) allowed the respondent’s section 204 appeal and varied the council’s review decision to find that she was homeless.