B2/2006/1972
Neutral Citation Number: [2006] EWCA Civ 1755
IN THE SUPREME COURT OF JUDICATURE 
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM DUDLEY COUNTY COURT
(HIS HONOUR JUDGE PEARCE-HIGGINS QC)
 
Royal Courts of Justice 
Strand 
London, WC2 

Thursday, 23rd November 2006
 
B E F O R E:
LADY JUSTICE ARDEN
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ROWLEY
CLAIMANT/APPELLANT
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RUGBY BOROUGH COUNCIL
DEFENDANT/RESPONDENT
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MR S COTTLE (instructed by Messrs Eric Bowes & Co) appeared on behalf of the Appellant.

THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
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J U D G M E N T
1.	LADY JUSTICE ARDEN:  This is an application for permission to appeal.  It is a renewed application and it is for permission to appeal against the order of HHJ Pearce-Higgins QC dated 15 July 2006 dismissing an appeal.  

2.	The circumstances were as follows.  Miss Rowley had a tenancy of premises.  She had gone into possession in April 2005.  She moved out on 21 February 2006.  She then claimed to be homeless.  She stated in one of her statements to the local authority, at page 139 of the bundle, that 

“The landlord told [her and her partner, Mr Taylor] at Christmas that he wanted to sell the property and that [she and her partner] told him that [they] were thinking of moving out.  [The landlord] then said that he was wanting us out by the end of February but did not give any written notice.”  

Miss Rowley goes on to say that they then decided that they would move to Rugby to be near her partner’s brother who was indisposed.  

3.	They contended to the local authorities that they were homeless on or about the date they left the premises.  The local authority came to a decision that they were intentionally homeless.  This is a decision pursuant to section 184 of the Act and this is at page 159 of the bundle.  The reason given is:

“That you gave up your tenancy of 264 Phoenix Place, Dartford, Kent, which was reasonable for you to reside in as a secure tenant.  That you did not secure reasonable accommodation before moving to Rugby, this resulted in you making yourself intentionally homeless.”

4.	Miss Rowley then asked for the decision to be reviewed.  The authority wrote to her on 13 April 2006 stating that the review would take place in 14 days, that she need not attend but she was asked to forward further information.  A review decision was made under section 202 of The Housing Act 1996 on 27 April 2006 which stated again that she had had a tenancy of 264 Phoenix Place, and that the tenancy required the landlord to give two months written notice to terminate the agreement.  The notice had not been given.  Then it said that Miss Rowley had given the landlord one months’ notice to quit the property having decided to come to Rugby to be near her relatives, and that she had not made arrangements for accommodation in Rugby but had applied to the council as homeless.  The review decision went on to say that Miss Rowley had not offered any information to suggest there was any other explanation for her actions and it concluded that she was intentionally homeless.

5.	Mr Cottle appears for Miss Rowley on this application and it is a complex one which I will try to summarise in the following way.  It is complex because there are several steps in the chronology.  I have not set them all out.  I shall keep this judgment to the essential points.  First, he says in relation to the section 184 decision that Mr Cottle adequately set out the reasons of the authority.  It did not address the important point, that Miss Rowley understood that the landlord wanted them to get out, and the judge did not deal with those points.  He submits that under the Code of Guidance at paragraph 6.24 the local authority, on hearing that contention by Miss Rowley, would have been obliged to investigate whether the landlord was indeed threatening to sell the property and whether he had told them to get out, and then have had to consider whether in those circumstances it would have reasonable to stay or whether in fact Miss Rowley became unintentionally homeless.  

6.	The second main way in which Mr Cottle puts the point is that the letter of 14 April was a “minded to letter” and there was, as a result of the previous matter which I have described as part of his contentions, a deficiency for the purposes of regulation 8(2) of The Allocation of Housing and Homelessness (Review Procedures) Regulations 1999.  Paragraph 8(1) provides:  

“The reviewer shall, subject to compliance with the provisions of regulation 9, consider-

(a) any representations made under regulation 6 and, in a case falling within regulation 7, any responses to them; and 

(b) any representations made under paragraph (2) below.   

7.	Paragraph 8(2) provides:

“If the reviewer considers that there is a deficiency or irregularity in the original decision, or in the manner in which it was made, but is minded nonetheless to make a decision which is against the interests of the applicant on one or more issues, the reviewer shall notify the applicant-

(a) that the reviewer is so minded and the reasons why; and

(b) that the applicant, or someone on his behalf, may make representations to the reviewer orally or in writing or both orally and in writing.”

8.	It was submitted to the judge by the local authority that the authority would indeed consider that there was no deficiency and the judge accepts that submission at paragraph 9.  Mr Cottle submits that the judge should not have left the matter there: he had to go on and consider whether the decision as to the absence of an irregularity was a reasonable one for the authority to come to in the light of the facts, and he submits that when that objective test is applied it was not complied with and he submits that this is an error of law made by the judge and that this court should consider the meaning of paragraph 2.  This has been done in part by Carnwath LJ in the case of Hall v Wandsworth LBC [2005] HLR 23, but Mr Cottle submits that the point is not, as it were, dealt with square on by Carnwath LJ and it is an appropriate matter that merits review by this court.

9.	What Mr Cottle says is there should have been a “minded to letter” which complied with regulation 8(2) and Miss Rowley was prejudiced because she was not told that the authority had spoken to the landlord, that the landlord had provided other information that her partner had in fact given notice to leave the property and that he himself had not said anything more that he was thinking of leaving.  He submits that that matter should have been put to Miss Rowley and she was prejudiced because her statement and evidence before the judge was that she left before she thought she had to leave.

10.	I then turn to the section 202 letter.  Mr Cottle submits that it follows from his submissions that that letter was not a valid decision because the local authority had deprived themselves of the information which they would have obtained if they had given the interview which Miss Rowley had asked for (see page 113 paragraph 14 in the appeal bundle).

11.	He also has a further submission that the local authority took a signed statement of the facts from Miss Rowley and her partner.  They were unrepresented and he submits that this has no legal basis, and the fact that it was signed does not cure the defects in the procedure.  He submits that this court should consider the practice of the local authorities in taking these statements.  He also submits there is a general public importance in the test to be applied to the reviewer’s decision under paragraph 8(2) because, in his experience, local authorities are arguing that it is simply a subjective test.

12.	One point arose in the course of submissions on the section 202 notice, which refers to a notice to quit, but Mr Cottle has been through the housing file and submits, on the basis of the documents which he has shown me, that this is a reference simply to an oral notice which the landlord alleged Miss Rose Butler had given.  That does not take the matter further but it perhaps highlights the point that the local authority needed to put to Miss Rowley the information from the landlord which they were preferring to her application of why they rejected the basis of her application.

13.	Neuberger LJ dismissed this application on paper.  It is fair to say I have had considerably more argument and the assistance of counsel which were not before Neuberger LJ. 

14.	I am satisfied that for the reasons counsel have submitted that they are arguable points to be raised on appeal.  I am not saying they will succeed, and I am also satisfied that for the reasons counsel has given they are points which are worthy of consideration and meet the requirements for a second appeal.  

Order: Application granted.