Public funding—Homeless rulings—Appeals

Queen’s Bench Division, Silber J, 17 Mar 2014

Appeals against homelessness decisions under s 204 of the Housing Act 1996 do not fall within the public law category post the enactment of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

Ian Wise QC (instructed by Bhatia Best Limited) for the claimant. Sarah Love (instructed by the Legal Aid Agency) for the defendant.

The claimant solicitors received civil legal aid funding while acting for clients in appeals against homelessness decisions under s 204 of the Housing Act 1996 (HA 1996) (s 204 appeals). On 1 April 2013 the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO 2012) came into force. Thereafter, the claimant continued to apply for funding, but the Legal Aid Agency (the agency) refused those applications. The agency confirmed its view that s 204 appeals did not fall within the category of public law introduced by LASPO 2012, following a formal review process. The claimant referred the issue to the court for resolution under cl 28.7 of the standard terms. 

The issue was whether s 204 appeals fell within the definition of “judicial review” in para 19(10) of Pt 1 of Sch 1 to LASPO 2012, which provided: “‘judicial review’ means—…(b) any procedure in which a court, tribunal or other person mentioned in Part 3 of this Schedule is required by an enactment to make a decision applying the principles that are applied by the court on an application for judicial review.” 

Two questions arose: (i) whether s 204 contained an express requirement under which the county court was required by an enactment to make a decision applying the principles that were applied by the court on an application for judicial review, thus placing s 204 appeals within the public law category; and (ii) if not, whether there were any other reasons requiring the application of judicial review principles with the result that s 204 appeals fell within the post-LASPO 2012 civil legal aid regime.  

Silber J

Issue (i): the construction issue

Section 204 stated, with emphasis added, that an applicant “may appeal to the county court on any point of law arising from the decision or…the original decision”. That clearly showed that it was not a case where in the words of Pt 1, 

Sch 1, para 19(10), “the court…is required by an enactment to make a decision applying the principles that are applied by the court on an application for judicial review”. The draftsman had clearly drawn a very important difference between “an appeal…on any point of law” in s 204(1) and “the principles that are applied by the court on an application for judicial review” in s 204A(4) by using different terms for different classes of cases in HA 1996.

That was a crucial distinction because it was settled law that, in the words of Bennion on Statutory Interpretation (6th Edition, LexisNexis, 2013) p 1035, “unless the contrary intention appears, a variation in the term used is taken to denote a different meaning, because to intend the same meaning is bad practice”.

Applying that principle, it followed that the failure of the legislature to refer to judicial review principles in s 204, unlike the way it did in s 204A, showed that it was not intended that judicial review principles would be applied in s 204. To reach a different conclusion would entail rewriting s 204 and that was not permissible, especially as if the legislature had intended that the county court should apply judicial review principles in s 204 challenges, they could have so provided as they did in s 204. 

His lordship referred to Begum v Tower Hamlets London Borough Council [1999] All ER (D) 1189 (Nipa Begum) and Runa Begum v Tower Hamlets London Borough Council [2003] 1 All ER 731 (Runa Begum). Nothing was said by the Court of Appeal in Nipa Begum which showed either that the approach of the county court on s 204 appeals was identical to the powers of the High Court on a judicial review application or that it was required by an enactment. Furthermore, Runa Begum had not mandated the application of judicial review principles by the county court in s 204 appeals, nor had it developed the jurisprudence beyond that in Nipa Begum. 

His lordship concluded that to qualify for civil legal aid under Pt 1, Sch 1, para 19(1), there was no express requirement in s 204 for the application of the principles applied by the court on an application for judicial review. 

Issue (ii): any other reasons

The claimant submitted, first, that an appeal on a point of law excluded an appeal on the facts, and second, that a point of law was not to be narrowly construed as a departure from the statutory requirements, but also included the common law requirements of judicial review.  

The defendant submitted, correctly in his lordship’s opinion, that although there was a substantial overlap between judicial review claims and appeals on points of law, it did not follow that every judicial body with jurisdiction limited to points of law was required to apply judicial review principles in every case. The defendant gave the examples of appeals to the Employment Appeal Tribunal from Employment Tribunals, appeals to the Court of Appeal from the High Court and challenges to arbitration awards under s 69 of the Arbitration Act 1996. In none of those appeals was the appellate court required to apply judicial review principles. 

Further, the draftsman clearly drew a very important difference between “an appeal…on any point of law” in s 204(1) and “the principles that are applied by the court on an application for judicial review” in s 204A(4) by using those different terms for different classes of cases in HA 1996. That important difference should not be disregarded.

The claim would be dismissed.