Discrimination claims and s204 appeal
The Court of Appeal has ruled that there is no home for discrimination claims in section 204 appeals, write Dean Underwood and Riccardo Calzavara.
The Court of Appeal has affirmed in Adesotu v Lewisham LBC, EHRC intervening [2019] EWCA Civ 1405 that in a homelessness appeal under s.204 of the Housing Act 1996 ("HA 1996") the County Court does not have jurisdiction to determine claims of alleged disability and/or indirect discrimination in the discharge of a local housing authority's homelessness functions. The effect is that applicants must litigate any such allegations in a County Court claim.
The County Court appeal
Ms Adesotu had brought a s.204 appeal against the London Borough of Lewisham's decision that its s.193 duty to secure accommodation for her had ceased after she refused an offer of suitable accommodation.
By Grounds 1 and 2 of her appeal, she alleged inter alia that Lewisham had discriminated against her by requiring her to accept its offer within an allegedly "short and inflexible time limit" such that it had breached its obligation not to discriminate against her in the provision of homelessness services, contrary to s.29 Equality Act 2010 ("EA 2010"), read with ss.15 and 19.
In a further ground of appeal - 3(c) - she alleged that the local authority had breached the public sector equality duty under s.149 EA 2010 by failing to allow her more time to accept the offer.
HHJ Luba QC's decision
Upon Lewisham's application, HHJ Luba QC struck out all three grounds on the basis that the County Court lacked jurisdiction under s.204 HA 1996 to determine them.
He held: (1) Sections 113(1) and 114(1) EA 2010 required a person alleging breaches of Part 3 EA 2010 to bring a Part 7 claim in the County Court; (2) A s.204 appeal was not such a claim, nor was it a "claim for judicial review" within the meaning of s.113(3)(a) EA 2010 and was not therefore excepted from the above rule; (3) The County Court did not have jurisdiction in any event in a s.204 appeal to make the findings of fact necessary to determine such claims: Bubb v Wandsworth LBC [2011] EWCA Civ 1285; [212] PTSR 1011.
He also held that the Grounds did not raise "points of law arising from the [review] decision", within the meaning of s.204(1) HA 1996: the Appellant had never raised her alleged need for further time, or her alleged disability, with the review officer; and the policy or practice about which she complained had been applied not only before the review decision but before the decision that the local authority's duty to her had ceased.
Preferring the dicta of Lewison LJ in Panayiotou v Waltham Forest LBC [2017] EWCA Civ 1624; [2018] QB 1232 (at [90]) to the decision of Jay J in Tachie v Welwyn Hatfield BC [2013] EWHC 3972 (QB); [2014] PTSR 662 (at [14-17]), HHJ Luba QC held accordingly that the County Court lacked jurisdiction to hear Grounds 1, 2 and 3(c) of the appeal.
Recognising that the appeal raised important points of principle, HHJ Luba QC granted Ms Adesotu permission to appeal and certified the appeal as suitable for hearing by, and transferred it to, the Court of Appeal.
The Court of Appeal's decision
Bean LJ, in a judgment with which McCombe and Lewison LJJ agreed, dismissed the appeal.
It was held that s.113(1) EA 2010 unequivocally states that proceedings relating to a contravention of the EA 2010 must be brought by way of a claim under s.114(1) EA 2010. A s.204 appeal was not a "claim for judicial review" (Hamnett v Essex CC [2017] EWCA Civ 6; [2017] 1 WLR 1155 at [24]) and did not, therefore, fall within the exceptions to that rule in s.113(3) [12-17].
Further, Grounds 1 and 2 of Ms Adesotu's appeal raised issues of disputed fact which fell within the exclusive jurisdiction of the County Court under Part 9 EA 2010. Their determination required a civil claim, with disclosure, the service of witness statements, a trial before a judge sitting with assessors, the cross-examination of witnesses etc [18-19].
The County Court had no jurisdiction to make findings of primary fact in a s.204 appeal and could not, therefore, determine them (Bubb) [21], nor would it be appropriate for the County Court to exercise its limited power to allow oral evidence in a s.204 appeal in order to do so [22-23].
Contrary to the EHRC's submissions, the Court of Appeal's decision in Bubb remained good law and had not been unsettled by paragraph 71 of R (N) v Lewisham LBC [2014] UKSC 61; [2015] AC 1259, in which Lord Hodge held that, in a s.204 appeal, (a) an appellant could raise the Article 8 ECHR proportionality of an intended eviction from s.188(3) or 204(4) accommodation, and that (b) in that context, the County Court could resolve relevant disputes of fact.
The Supreme Court, Bean LJ held, had neither heard argument about, nor considered, Bubb. It was inconceivable that it would not have referred to the decision had it considered it relevant. Further, there was a distinction between a challenge to the proportionality of a proposed eviction and a challenge to a local authority's decision that its duty to an appellant had ended; and a significant distinction between the treatment of proportionality under Article 8 ECHR and the EA 2010 respectively [24-26].
Moreover, s.204(1) HA 1996 confined the County Court's jurisdiction to the consideration of points of law "arising from the [review] decision". That meant, Bean LJ held, "a point of law said to be erroneous in the review decision" and excluded "as illegitimate a challenge on grounds such as [that] the original process was incorrect or even unlawful, because a point of that kind is superseded by the question as to whether the review process was carried out properly and reached a legally correct solution" (Abed v City of Westminster [2011] EWCA Civ 1406 at [20, 26]).
For Ms Adesotu, that meant that her claims under Grounds 1, 2 and 3(c) of the s.204 appeal were academic, as she had plainly had enough time, Bean LJ held, to raise any points that she wished to make about them before the review decision (and had not done so) [27-33].
Dismissing the first ground of Ms Adesotu's appeal, the Court held that it was unnecessary, and would not be appropriate, to resolve the second ground of appeal or, therefore, the tension between Tachie and Panayiotou: determination of that issue should – and would have to – await an appeal in which it was determinative [34-37].
Comment
The Court of Appeal's decision in Adesotu provides a stark reminder about the limits of the County Court's jurisdiction under s.204 HA 1996, and helpful guidance about the way in which claims of alleged discrimination in the provision of homelessness services must be brought.
It is, the Court has held, impermissible to litigate such claims in a s.204 appeal, which gives the County Court neither the jurisdiction nor the means by which to determine them. Proceedings relating to an alleged contravention of, e.g. Part 3 EA 2010 must be brought exclusively by way of a claim in the County Court, invoking the court's originating jurisdiction; and, where they raise issues of disputed fact, by the procedure for which Part 7 CPR provides.
The County Court's jurisdiction under s.204(1) HA 1996 is confined to the consideration of points of law only and, more particularly, to points of law arising from the review (or, as the case may be, the original) decision. It is impermissible to plead, as the appellant had in this case, points of law arising from an alleged error in an earlier part of the decision-making process, if the appellant has had a chance to raise them during the review process.
The Court's decision also resolves the perceived tension between paragraph 71 of the Supreme Court's decision in N and a long line of authority, not least of which Bubb, that the County Court does not have jurisdiction under s.204 HA 1996 to constitute itself as the finder of primary fact.
Bubb remains good law; the decision in N does not unsettle it; and, in practice, in the rare circumstances in which it may be asked to exercise the jurisdiction, the County Court is confined to resolving disputes of fact relevant to the Article 8 proportionality of a proposed eviction from s.188(3) or, potentially, s.204(4) accommodation only. Local housing authorities are still, therefore, the arbiter of primary facts under the HA 1996.
The decision does little, by contrast, to resolve the evident tension between Jay J's decision in Tachie and the dicta of Lewison LJ in Panayiotou – a missed opportunity, it might be said, to clarify the limits of the County Court's jurisdiction further. While, it is respectfully suggested, HHJ Luba QC was right to find as he did, clarity about that particular issue will, it would seem, have to await another day.
Dean Underwood and Riccardo Calzavara are barristers at Cornerstone Barristers. They represented the successful local authority in the Court of Appeal. Dean represented the successful local authority in the County Court.
