Homelessness Bill

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Mr. Clifton-Brown: Will the Minister explain why there are two different strands? An appeal against the authority's failure to review properly must go to a judicial review, which is a difficult way to progress to the High Court, but the failure to continue to house an applicant pending that judicial review is a matter for the county court. Why can we not have a step-like approach, which would be normal in law, in which the county court decides both matters in the first instance before progression up through the legal system?

Dr. Whitehead: The points of the hon. Member for Bath are similar to that of the hon. Gentleman. There is a tension between the principle that local authorities should have the discretion to decide the proper protection of a person during a review, which is not the same as a judicial review through the High Court, and the right of a person who is challenging that internal review to be able to do that properly and not be disadvantaged by the fact that he or she is deprived of accommodation.

The route suggested by the hon. Member for Bath provides for an appeal to the county court and it is therefore likely that the discretion would be undermined. The hon. Gentleman made a point against himself when replying to the suggestion of the hon. Member for Cotswold that ``may'' should be replaced by ``must'', in indicating that that would undermine the discretion of the local authority. In attempting to maintain the point supported by Lord Justice Otton that it is desirable for local authorities to exercise their discretion, the Government believe that the rights of a person who is appealing are best maintained by ensuring that the authority retains discretion and, at the same time, allowing a route of judicial review through the High Court, but not by suggesting that an appeal that would become a matter of course should go through a county court.

Mr. Don Foster: Before we go through a tortuous, though necessary, discussion, I ask the Minister a simple question. Does he believe that the decision on whether the local authority was right to deny someone accommodation during the review process should be made in a county court—as the Government have accepted for the appeals process—or through judicial review? If he believes that it should be through judicial review, will he explain why the Government believe that judicial review is appropriate for one case and county court for the other?

Dr. Whitehead: That is because appeals on the process and on accommodation are not exactly the same.

Mr. Foster: I did not ask that question.

Dr. Whitehead: Perhaps the hon. Gentleman would like to clarify his question.

Mr. Foster: I was trying to separate the debate on the local authority's decision under review or appeal from the issue of whether it is right to deny accommodation. If there is to be a court intervention on that specific question, should the court concerned be the local county court or the High Court through judicial review? If it is not the county court, why does the Minister want one system for appeal and another for review?

Dr. Whitehead: As I understand it, that is because the determination of the local authority's discretion in its review should be protected while still allowing for a review process. As the hon. Gentleman has said, the Government have made it clear that it would be in order for appeals on the first part of the process to proceed through the county courts. However, the hon. Gentleman is attempting to provide a symmetry to the proceedings that is unwarranted because of the tension that I described. That is why the processes cannot be symmetrical in the way that he would want.

Applying to the courts to overturn an authority's decision should be a matter of last resort and considered only when it is clear that the authority has not made a proper decision, and that is also the view of the Court of Appeal. In the case of Nacion v. Brighton and Hove Council, Lord Justice Tuckey said:

    ``the provision of temporary accommodation pending appeal (and the same applies pending review) is entirely in the discretion of the council. Where a council...has obviously considered the material factors it is an entirely futile exercise to seek to say that in some way that discretion was wrongly exercised...Applications for judicial review on this basis should be strongly discouraged. It is only in a very exceptional case that there will really be any reasonable prospect of interesting the court by way of judicial review to interfere with the exercise of the very broad discretion which the council have.''

Why then are we making provision to improve access to justice by giving powers to the county court to intervene in authorities' discretion to continue to accommodate pending an appeal to the county court but not pending a review by the authority? Why should applicants still have to go to the High Court on that issue pending the review by the housing authority? That question was put by the hon. Member for Cotswold and pursued by the hon. Member for Bath.

The answer, put simply, is that there is no overriding need to improve access to the courts in seeking a review of an authority's decision. That course of action should be pursued only in exceptional circumstances, whether it is to the High Court or the county court. However, when an applicant wishes to apply to the court to review a decision not to continue to accommodate at the same time as he or she is making an appeal to the county court on the substantive homelessness decision—that is, for example, that the homelessness was intentional or that there was not a priority need—it does not make sense, either from the perspective of the applicant or the courts, for the two applications to be considered by different courts.

Put even more simply, where the county court is considering an appeal under section 204 of the 1996 Act in regard to the homelessness decision, it makes sense that it should also consider any application to review the authority's decision not to exercise its power under section 204(4) to continue to accommodate pending the appeal.

6.45 pm

Mr. Foster: I am disappointed by the Minister's reply. I suggest, as tactfully as possible, that his understanding of the situation—like that of the hon. Member for Cotswold—is somewhat confused. I shall put the situation as simply and succinctly as I can to give the Minister one more opportunity to explain the Government's position.

The situation is simple. An applicant can request a local authority to review its decision in respect of eligibility or priority. That is an internal review process, which is carried out under the discretion of the local authority. Nothing in my proposal would in any way fetter the local authority in carrying out that review process. However, it matters significantly during the review period whether the applicant has accommodation. In some cases, local authorities will continue to provide accommodation and in others they will not, to the disadvantage of the applicant. It therefore seems sensible for someone to be able to decide whether the local authority is right to refuse to continue accommodation—in respect not of the decision it makes during the review process but merely of its decision not to continue to provide accommodation.

The existing law states that there is a right of challenge to the courts, by the process of judicial review to the High Court. My proposed alternative is that, in the specific instance of an appeal against a local authority's decision, the local county court instead be given the opportunity to decide the case. I want a degree of symmetry—for the sake of common sense. The Government used the argument that it is more sensible to use the local county court in deciding to change the appeals procedure. The Government decided that it was crazy to use the High Court for that matter and that the local county court should be used instead.

Mr. Clifton-Brown: Does the hon. Gentleman agree that access to justice demands quick, clear decisions? The local county court could make a much quicker, clearer decision by hearing in parallel the matter of whether a local authority should continue to house and that of whether the local authority used the correct discretion on its review period. That would create much quicker, clearer justice.

Mr. Foster: I cannot agree. The hon. Gentleman again confuses the two-stage process of how such matters are considered. I do not want to fetter the right of local authorities to try to sort those matters out themselves first at a local level. Only if they cannot do so should the matter go to court. I am discussing only whether accommodation has rightly or wrongly been denied to a particular applicant for the review process. I agree with the hon. Gentleman that that consideration should be quick and clear but I would go further and say that those aims would be more easily achieved by the local county court, which can take account of local circumstances.

Those are the very arguments that the Government used in making a decision in respect of the changes that they proposed in the Homes Bill. Even if the Minister is not prepared to accept new clause 2 because I have drafted it in a misleading way, I hope that he would agree that there is strength in the argument that it is better to go to the county court to decide these matters, if a court must be involved, than to go to the High Court through judicial review. That is all I seek. The matter may appear complicated, but that is because the Government complicated the legislation by adding a range of additional categories. I welcome those additions, but the clause must cover all those eventualities.

Given that I am prepared to withdraw the new clause, I hope that the Minister will at least agree that he should reconsider that issue.

Dr. Whitehead: As the hon. Member for Bath made clear in his earlier contribution, he is pleased that under section 204A the Government have said that when an appeal is before the county court, it is sensible that that court should be able to make a decision on accommodation as well. He accepts that that is a logical step. I sought to persuade him that it is not logical to go a further step when a review is undertaken by the local authority itself and one wants to ensure that the local authority's discretion, with reasonable provision, is upheld.

As I said before, our position conforms to the opinion of the High Court. That court's opinion emphasised that under those circumstances, attempts to overturn the properly exercised discretion of the local authority in determining whether it should continue to provide accommodation while it reviews whether the interim criteria should be firmed up, need to be preserved. As the hon. Gentleman said, judicial review is a possible remedy that should be used in exceptional circumstances alone and should properly be taken through the High Court. It is not that there is no remedy, but the symmetry that the hon. Gentleman seeks to introduce is not there, and I freely concede that that is the case. However, that symmetry could be achieved only by pulling the tension between a local authority's discretion to review their own activities and the rights of those subject to that discretion to take action if they are dissatisfied with that discretion too far away from the proper exercise of that local authority's discretion. That is the nub of the case.

It is not a misunderstanding of what the hon. Gentleman seeks to achieve, but a difference of opinion about how best one proceeds to allow local authorities to exercise their discretion in respect of the review. The Government's position is that the course of judicial review through the High Court is the right course of action, so we cannot accept the new clause.

 
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