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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Hussain, R (on the application of) v City Of Westminster [2002] EWCA Civ 1233 (26 July 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1233.html Cite as: [2002] EWCA Civ 1233

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL
THE DECISION TO REFUSE PERMISSION TO
CLAIM FOR JUDICIAL REVIEW AN EXTENSION
OF TIME AND PERMISSION TO RELY ON FURTHER EVIDENCE

		Royal Courts of Justice Strand London WC2 Friday, 26th July 2002

1. LORD JUSTICE SEDLEY: This application is made to me by Mr Nadhum Hussain in person. He wants permission to appeal against adecision of Mr Justice Lightman given in the Queen's Bench Division on 14th March 2002. Mr Hussain had applied, by counsel, to MrJustice Lightman for permission to seek judicial review of Westminster City Council's decision that they would make him no further offers of housing accommodation.
2. Since 1996 Mr Hussain has had a difficult history in relation to housing in the City of Westminster. He is a man in poor health with a variety of medical conditions including a serious visual deficit. His condition is certainly getting no better; the probability.
3. On the medical evidence is that it is getting worse. In early 1997 Westminster City Council took Mr Hussain's name off the housing register for two years because they took the view he had unreasonably refused an offer of relocation. Against that decision Mr Hussain successfully brought judicial review proceedings. In Crown v Westminster ex p Hussain [1998] 31 HLR 645 Mr Justice Turner held that the council had applied not a policy governed by an overall discretion but a rigid rule that any one who turned down a single offer of accommodation would be suspended for two years from the housing register. He made them go back to the drawing board.
4. In consequence, Mr Hussain has had further offers of accommodation.
5. The offer which has brought the matter to a head was the fourth offer. It was an offer of accommodation at Calbourne House, Hanson Street, W1, a ground floor flat in a purpose built block, access to which, however, is gained by five steps up from the street. Taking the matter shortly, the officers of Westminster City Council who visited the place with Mr Hussain satisfied themselves that although there were steps they were not an insuperable obstacle to him and they observed him negotiating the steps satisfactorily on more than one occasion. They formed the view - which Mr Justice Lightman considered a perfectly rational view - that there was no good reason why Mr Hussain should not accept this offer of accommodation. However he turned it down and brought proceedings, this time on the ground that the insistence that this was suitable accommodation was irrational because it flew in the face of the medical evidence. Mr Justice Lightman said this:

"In my view that complaint is plainly unmaintainable. The position taken by the defendants is that full regard, as the decision letter makes plain, was given to that report. And based on the medical adviser's recommendation, the defendants took the view that the offer of this accommodation was suitable accommodation, and they took into account what seems to me a clearly relevant fact, that the representative of Social Services saw on that occasion the claimant manage the steps three times with very little difficulty. There is no suggestion furnished on behalf of the claimant that that account by the representative of Social Services, or what happened on the visit, was in any way inaccurate. It seems to me full regard must be paid to the desirability of avoiding any hazard but it was perfectly rational and reasonable for the defendants to reach the conclusion that the presence of the five steps in this case did not afford any hazard and that the claimant could perfectly easily and appropriately manage the five steps in question. Therefore a complaint made on that ground is hopeless."

6. That (leaving aside, as I propose to leave aside, the fact that the application was made out of time) meant that there was no basis upon which judicial review could legitimately be sought.
7. The grounds of appeal are varied but insofar as they seek to re-canvass Mr Hussain's medical condition they cannot advance his case. Westminster were fully aware of his medical condition and there is no evidence to suggest they ignored what they knew. The attempt to revive the argument that the decision was objectively unreasonable is no stronger before me than it was before Mr Justice Lightman. In recent days moreover Mr Hussain through the good offices of the Citizens' Advice Bureau in this building has obtained - and I imagine it is pro bono - the written assistance of Mr Rajiv Thacker of counsel who was his advocate in the proceedings before Mr Justice Turner in 1998. I express my gratitude, and I think Mr Hussain would express his, for Mr Thacker's helpful intervention. What Mr Hussain has said to me today makes it clear he would like to adopt what Mr Thacker now advances. Mr Thacker has recognised that the irrationality argument is not going to get off the ground. What he argues instead is that there is at least a strong possibility that Westminster City Council is still, as it was in 1998, applying a rigid rule even though it may be claiming to be exercising discretion.
8. The basis of this argument is a recent letter of 19th July 2002 from Westminster City Council's director of Legal and Administrative Services setting out their position on this question. The letter points out something which I do not think is disputed or disputable, namely that Section 103 (5) of the Housing Act 1986 allows a local authority to remove a person from the housing register in such circumstances as they think fit. That does not allow them to go through the register with a pin taking people out at random, and no one suggests that it does.
9. What the council say is that they wrote to him on 1st May 2001, following the refusal of this fourth offer of rehousing, to tell him his name would be removed from the housing register within 28 days, but inviting him to submit additional information meanwhile to support his application to remain on the register. In other words, they were not saying that removal was automatic. They were saying that it would follow unless some reason was shown why it should not follow. They then set out their policy which is in the following terms:

"7.2 Refusal of an offer

• Applicants will normally receive one reasonable offer of accommodation. Some priority groups receive two offers.

• Priority group applicants using their entitlement to an offer are re-registered on the general list.

• A general list applicant on either the Housing Register or Tenant Transfer list who refused an offer of accommodation will be suspended for a period of two years.

1.3.4 Applicants not eligible to register on the Housing Register

A Person:

1.3.4 7 Who has refused an offer of suitable accommodation from, or facilitated by, the City Council or another social landlord.

Note: Such applicants will not normally be eligible to register as a qualifying person for a period of 2 years from the date of refusal.

The Director of Housing may exceptionally agree that an applicant in any of the above categories is a qualifying person, or may be included in an eligible person's application."

10. Mr Thacker submits in relation to this material that it is selected from - not the whole of - the written policy, that it is capable of being inflexibly applied and that there is not enough to show that is not what has happened here. It would, as Mr Thacker submits in writing, be a serious matter if the defendant authority is continuing to apply a policy which has been deemed unlawful. What Mr Thacker suggests is that the court should at least see a full copy of the policy.
11. I have considered this with care, but it does not seem to me that this is an appropriate course. The point, as Mr Thacker acknowledges in his written submission, is a brand new one, so it would require this court's permission anyway to amend the application in order to take it. If I thought there was solid material which supported it I would give very serious consideration to giving permission. But there is none. What there is is not only a written policy, which is no more than that - a policy; there is also within it a series of formulations which demonstrate that it is not rigidly applied but that certain steps are "normally" to be taken or that the director of housing may "exceptionally" disapply them. All of that seems to me to spell out what is anyway implicit in the nature of a policy, namely that it is a guide and not a cage.
12. It is absolutely right that if, as happened in 1998, it can be demonstrated that whatever the council has put in writing, its officers are in fact applying the policy as if it were rules, then the court would intervene. In the present case not only is there no evidence that this was being done; there is cogent evidence that it was not being done. We had Mr Hussain turning down not one, not two, but three offers of accommodation and still being made a further offer, the subject of the litigation. That seems to me to demonstrate by itself that no "one offer" or "two offer and out" policy is being rigidly applied and that Mr Hussain had very considerable latitude before finally the end of the road was reached.
13. In those circumstances, in my judgment, there is life neither in the proposed challenge to Mr Justice Lightman's conclusions nor in the proposed new challenge to the local authority on the same grounds as in 1998, because demonstrably the practice of the local authority is not what it was when the matter came before Mr Justice Turner. It would require cogent evidence - and there is none - of a departure from what the law requires.
14. I am sorry for Mr Hussain. He is not a well man. He needs to be suitably accommodated, but there is a limit to what the law requires of the local authority. It seems to me that this authority has not applied a rigid policy. It has made a succession of offers, the last of which was an offer the authority was quite entitled to view as a suitable one and to say to Mr Hussain, at least for the time being: "That is it, we are not making you any more offers."
15. There is no basis for granting permission to appeal and permission is refused.
Order: Application refused