Adesotu v Lewisham LBC

The Court of Appeal considered whether a County Court hearing under section 204 of the Housing Act 1996 has jurisdiction to determine discrimination claims under the Equality Act 2010 and whether the County Court may resolve disputed primary facts on a s 204 appeal. The court held that section 204 appeals are limited to points of law "arising from the decision" and that the Equality Act 2010 creates its own Part 9 enforcement procedure (including the requirement for assessors) which is the proper forum for claims of unlawful discrimination. The court also applied binding authorities (in particular Hamnett and Bubb) to confirm that a s 204 appeal is not a claim for judicial review in the strict sense and that the County Court does not have general jurisdiction to make fresh findings of disputed primary fact in such appeals. On those bases the Court of Appeal upheld the strike-out of Grounds 1, 2 and 3(c) of the appellant's s 204 appeal and dismissed the appeal.

The appellant, a homeless single parent, was offered accommodation by Lewisham London Borough Council under its discharge of the main homelessness duty. Following a disputed sequence of events about acceptance or refusal of the offer the council decided the duty had ended. The appellant sought an internal review and, dissatisfied with the reviewing officer's decision upholding suitability and discharge of duty, appealed to the County Court under s 204 of the Housing Act 1996.

The appellant's amended grounds to the County Court included allegations of unlawful discrimination under the Equality Act 2010 (grounds invoking s 19, s 15 and s 149 of the 2010 Act) and complaints about the council's practices in imposing short time limits for acceptance. The council applied to strike out the discrimination-related grounds on the basis that the County Court had no jurisdiction to determine Equality Act claims in a s 204 appeal and, alternatively, that a s 204 appeal did not permit the County Court to act as a primary finder of fact.

The County Court judge (His Honour Judge Luba QC) struck out Grounds 1, 2 and 3(c). Permission to appeal was granted and the matter was transferred to the Court of Appeal. The Equality and Human Rights Commission intervened by written submissions.

The Court of Appeal examined (i) whether proceedings under Part 9 of the Equality Act must be used for discrimination claims and whether a s 204 appeal falls within the Equality Act exception for "a claim for judicial review"; (ii) whether a County Court on a s 204 appeal can decide disputed primary facts; and (iii) whether the discrimination grounds "arose from" the reviewing officer's decision and had been raised at review.

• The court held that the phrase "claim for judicial review" in s 113(3)(a) of the Equality Act 2010 is a term of art referring to claims brought in the High Court; it declined the appellant's invitation to treat s 204 appeals as falling within that exception. It followed Hamnett as binding authority on that point.
• The court confirmed (following Bubb) that s 204 appeals are confined to points of law arising from the review decision and that the County Court does not have a general jurisdiction to remake findings of primary fact; the court may not become a primary fact-finder in ordinary cases.
• The court also held that, as a matter of causation of jurisdiction, the discrimination allegations did not clearly "arise from" the review decision and, on the further ground, the appellant had not sufficiently put the discrimination case to the reviewing officer so as to bring it within the proper scope of a s 204 appeal.

The court therefore dismissed the appeal, upholding the strike-out of the discrimination grounds and leaving open a related antecedent policy question for a future case where it is decisive.

Appeal dismissed. The Court of Appeal upheld the County Court judge's order striking out the discrimination-related grounds because (i) proceedings under Part 9 of the Equality Act 2010 are the appropriate route for discrimination claims and a s 204 homelessness appeal is not a "claim for judicial review" in the strict sense; (ii) s 204 appeals are confined to points of law "arising from" the review decision and the County Court does not have general jurisdiction to make fresh findings of disputed primary fact; and (iii) the discrimination points had not been properly raised at review. For these reasons Grounds 1, 2 and 3(c) were correctly struck out and the appeal was dismissed.

Appeal from the County Court at Central London (His Honour Judge Luba QC), whose reserved judgment striking out parts of the appellant's s 204 appeal is reported on Bailii at [2019] EW Misc 3 (CC). The judge granted permission to appeal and directed transfer to the Court of Appeal. The appeal to the Court of Appeal was heard and determined in this judgment, reported [2019] EWCA Civ 1405. An interim order of Asplin LJ on 12 March 2019 directed the appeal should remain in the Court of Appeal.