Tachie & Ors v Welwyn Hatfield Borough Council

A statutory appeal under section 204 of the Housing Act 1996 may raise antecedent ultra vires issues arising from the original homelessness decision. Part VII homelessness decision-making is evaluative but is not, merely for that reason, strategic or policy-based discretionary decision-making which a local authority has reserved to itself. Contracting out to an arms-length management organisation may fall within the Teckal exemption where the authority exercises the necessary control and the functions test is satisfied. A decision taken by the wrong local-government body is initially invalid, but the defect may be retrospectively ratified where it is formal rather than substantive and the statutory context permits ratification. On the individual appeals, the review decisions disclosed no appealable error of law.

Three appellants appealed under section 204 of the Housing Act 1996 against homelessness review decisions of Welwyn Hatfield Borough Council. The appeals were transferred from the county courts because they raised common questions concerning the Council’s contracting out of Part VII homelessness functions to the Welwyn Hatfield Community Housing Trust, an arms-length management organisation.

The common issues included the scope of section 204, the meaning of discretionary decision-making, whether the contracting-out decision was made by the correct local-government body, the duration of the authorisation, procurement and the Teckal exemption, and subsequent ratification. The individual appeals concerned intentional homelessness and priority need.

1. Scope of appeal. Section 204 permits an appeal on any point of law arising from the review or original decision. Consistently with Nipa Begum v Tower Hamlets LBC [2000] 1 WLR 306 and Runa Begum v Tower Hamlets LBC [2003] 2 AC 430, the jurisdiction is sufficiently broad to encompass antecedent ultra vires and other public-law errors.
2. Discretionary decision-making. The Council’s constitutional restriction concerned relatively high-level policy or strategic decisions. Part VII imposed a tightly controlled statutory scheme under which the authority had to apply statutory conditions to the facts of individual cases. Such decisions were evaluative, but did not thereby constitute reserved discretionary decision-making. Most Part VII functions could therefore be contracted out under the Local Authorities (Contracting Out of Allocation of Housing and Homelessness Functions) Order 1996.
3. Executive function and invalidity. Part VII homelessness functions were executive functions. The Cabinet’s earlier resolution seeking approval to delegate housing functions was necessary but insufficient. A later decision expressly authorising contracting out had to be made by the Cabinet. The Council’s resolution of 31 March 2010 was therefore ultra vires and legally invalid, notwithstanding that Cabinet members were present and the resolution was unanimous.
4. Procurement. The Teckal exemption applied. The functions test was satisfied, and the contractual and constitutional arrangements gave the Council complete control over the Trust, including power to determine what it could do. The relevant question was the nature of the arrangements as constituted, rather than the degree of control actually exercised. The Council’s internal contract rules were impliedly subject to the Public Contracts Regulations 2006 and therefore incorporated the same exemption.
5. Ratification. The January 2013 ratification was ineffective because it was made by the Council rather than the Cabinet. The Deputy Leader’s decision of 25 November 2013 was lawful. Ratification depended on the statutory context and the distinction between substance and formality. This was a formal defect: the Trust was always intended to perform the functions, the relevant personnel had transferred, and the Council and Cabinet had acted unanimously. The special urgency procedure was not shown to have been unlawfully applied. The Council’s contracting out was therefore validly ratified.
6. Individual appeals. The intentional-homelessness decisions in the Tachie and Terera appeals were lawful. In applying the Bayani test, the Council was entitled to consider whether the former accommodation remained available and whether it was reasonable to continue to occupy it. Mr Il’s appeal also failed. Regulation 8(2) was concerned with procedural deficiencies or irregularities, not a medical adviser’s change of opinion. The review decision was nevertheless seriously open to question because it appeared to equate ordinary depressive symptoms in street homelessness with the likely deterioration of an existing severe depressive condition. The court recommended a fresh review based on up-to-date medical evidence.
7. All three appeals were dismissed. The appellants were ordered to pay the respondent’s costs, subject to assessment of their ability to pay under section 26 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

• County Courts: The three section 204 appeals were initially issued in the Luton or Watford County Courts.
• High Court (Queen’s Bench Division): By order dated 27 September 2012 the appeals were transferred to the High Court and heard together. The appeals were dismissed.