Birmingham City Council v Caroline Griffiths Fowell

Crown Copyright© LORD JUSTICE LEWIS:

1. This is an application for permission to appeal on six grounds, against an order of HHJ Rawlings sitting as a judge in the High Court. It concerns a claim by Caroline Griffiths-Fowell that the appellant local authority was in breach of a duty to secure accommodation for her and those effectively forming part of her household, which is said to have been at the time to have included her disabled brother. The duty was said to be owed pursuant to section 193 of the Housing Act 1996 (“the Act”). That duty is owed to persons who are eligible for assistance, who are homeless, who have a priority need and who are not intentionally homeless. The duty is to secure that suitable accommodation is available for them.

2. In brief the judge held first that the appellant authority was in breach of the duty owed to Ms Griffiths-Fowell pursuant to section 193 of the Act. Secondly, he made a declaration that the appellant was in breach of its duty. That order is appealed against. It is not in the bundle provided to the Court for the hearing of this application but both counsel assure me that such an order was in fact made. Thirdly, the judge granted a mandatory order, requiring the appellant to secure suitable accommodation for Ms Griffiths-Fowell and her household by no later than 18 December 2025.

3. Fourthly, the judge granted permission to appeal to the Court of Appeal on two grounds. The first was that the judge should not have determined the claim for judicial review but that the question of need for, and the suitability of, accommodation should have been dealt with by the machinery for review and then by an appeal to the county court under section 202-204 of the 1996 Act. The second ground concerns the question of whether the duty would come to an end when Ms Griffiths-Fowell left the premises provided and went to another property.

4. The judge refused permission on the six other grounds which form the subject matter of an application for permission to appeal by the appellant. I adjourned the application for permission on those six grounds to an oral hearing which is the hearing that place on 29 January 2029. Mr Manning together with Ms Dean appeared for the appellant and Mr Nabi appeared for the respondent and I am grateful for their assistance.

5. In addition to the application for permission to appeal, the respondent had also filed for a stay of the mandatory order requiring them to secure the accommodation that was available to Ms Griffiths-Fowell and her brother. A short stay was granted by Snowden LJ. By order dated 18 December 2025 I continued that stay. I explained in my reasons that there was no present risk of Ms Griffiths-Fowell or her brother being left without accommodation. Ms Griffiths-Fowell had obtained accommodation in other housing. The respondent had offered to provide accommodation for her disabled brother in supported care. In those circumstances, I decided it was not appropriate to require immediate provision of a house suitably adapted for wheelchair use. I indicated however that the question of a stay could be considered at the oral permission hearing and I gave liberty to apply as circumstances changed. Needless to say, the court was very mindful of the needs of Ms Griffiths-Fowell and the needs of her brother, whilst understanding what the local authority was saying about the pressure of resources on them.

6. One further development has since occurred. Ms Griffiths-Fowell is no longer seeking accommodation with her brother. By letter written on her behalf by her solicitors, she does not seek to have the stay on the mandatory order lifted. She has also indicated that she is willing to agree an order discharging the mandatory order that accommodation is secured for her and her household, including her brother. That would have to be a matter for discussion by the parties as to whether or not an order can be agreed, in what terms and how it relates to the appeal. For present purposes, the position is that the court below has made a mandatory order requiring the provision of accommodation. This court has stayed that order. That stay remains in place and the local authority are not required at the moment to comply with that order, pending the decision of the Court of Appeal or any further order.

7. Next I deal with the six ground on which permission is sought. There are two separate questions. Firstly, do each of the grounds have a realistic prospect of success and secondly if so, should permission be refused because of the arguments put forward by Mr Nabi on behalf of the respondent, that the appeal is now academic in light of the fact that Ms Griffiths-Fowell is no longer seeking accommodation with her brother.

8. I turn first to the grounds of appeal. I have to say that the grounds are not always easy to understand. It would also have been extremely helpful if the grounds had referred to the paragraphs within the judgment where it is said that the judge went wrong. However, having read them and having had the submissions of Mr Manning on what the grounds mean, I do understand, I think, what the argument is and I am therefore in a position to deal with them.

9. Firstly I can say immediately that I consider the grounds three, four, five and six do have a realistic prospect of success. Subject to the question of whether they are academic, I would be minded to grant permission pursuant to CPR 52.6. That does not mean the appeal on those grounds would succeed but it means there is a realistic prospect of them succeeding.

10. Leaving aside ground four for the moment, grounds three, five and six essentially argue that if the High Court was entitled to consider questions of suitability or questions of discharge, rather than those matters having to go to the county court pursuant to t section 204 of the Act, then the judge should have considered whether the rappellan t in its decision-making process had made a public law error, in deciding whether the accommodation was suitable or whether the duty had been discharged.

11. The core argument is the judge should not have determined questions of suitability or duty on his view the merits of the accommodation and the needs of the respondent who had applied for housing assistance. Put differently, if the appellant fails to succeed on ground one, that is, that it is the county court on an appeal, not the High Court in judicial review, that should deal with this, then the appellant says the approach adopted by the judge sitting in the High Court was wrong. Ground four is a variation on that because it says that in relation to one piece of evidence, a letter of 4 June 2025, the judge misinterpreted that. In my judgment, all four grounds, three, four, five and six do have a realistic prospect of success.

12. I would refused permission on ground seven. That concerns a refusal by the judge to allow witness statements, or parts of witness statements, to be adduced at the hearing. In essence the appellant says the judge should have considered the wider public law interest when deciding to refuse to admit the new evidence. In submissions it became clear what had happened. As appears at paragraph 28 of the judgment, the judge who dealt with the permission application directed that the local authority should file its evidence within 35 days of service of the order. The local authority did not comply with the direction. It did not comply and put in its witness statements within the 35 days directed. The 35 days is not in any way unusual. It is the standard period set out in the rules in any event if no direction had been given.

13. The judge decided, therefore, that the appellant was in default by not complying with the directions. He decided there was no good reason for that. It was never put in argument to him that there was a public interest in allowing the witness statements to be advanced. I see no realistic prospect of this court being persuaded that a case management decision by the judge not to allow witness statements to be adduced when there had been a failure to comply with the direction and when there was no excuse for that failure and when no arguments had been identified, or suggested, to indicate that some other public interest overrode that failure was wrong. I would therefore refuse permission on ground seven.

14. I would also refuse permission on ground eight. That concerns the question of how the judge should exercise his discretion in deciding whether or not to make a mandatory order. The judge for the reasons set out in his judgment, decided that it was appropriate to make a final mandatory order in this case. The matters set out in ground eight essentially amount to a disagreement about the judge's assessment of the evidence. In my judgment, the appellant has not identified any error of approach or principle on the judge's part. He reached a conclusion that was open to him on the evidence and there is therefore no realistic prospect of ground eight succeeding.

15. In the circumstances therefore, I would in any event refuse permission on grounds seven and eight. The circumstances that I need to consider, given that grounds three to six have a realistic prospect of success, is whether I should refuse permission in relation to that matter because it is said that the underlying dispute is now academic.

16. The first problem is that the appellant already has permission on two grounds. There is nothing I can do on this application for permission to appeal in relation to the other six grounds, that will affect the appeal continuing on the two existing grounds. All I can do on this application, is decide whether the other grounds of appeal should also be granted permission.

17. Ultimately, I have decided that I ought not to refuse permission at this stage on the four grounds that I have identified as having a realistic prospect of success. Those grounds are in essence the counterpart of the other side of the coin to one of the grounds for which permission has been granted. That is, the appeal viewed as a whole is asking, should the court have dismissed the claim for judicial review because there is an alternative remedy, namely the appeal to the county court. If not, and if the High Court on judicial review could deal with the claim, did it approach the matter in the correct way? The better course of action in my judgment is to grant permission but on the basis that the Court of Appeal may wish to consider, whether before or after the hearing, whether all six grounds are now academic and if so, whether it ought to hear the appeal exceptionally as it has power to do, as recognised in cases such as R v Secretary of State for the Home Department ex p. Salem [1999] 1 AC 450.

18. I should say Mr Manning has identified other reasons why he says that the appeal would not be academic. He draws attention to what he submits is the limited nature of the concession made by the respondent and in particular in his submission, that concession might simply be the respondent’s household has changed, as she is no longer living with her brother. He submits that does not amount to a concession that a duty was no owed to her, or that it had come to an end, or that the declaration needs to be set aside. She has not withdrawn the application that she made for housing assistance. He submits that the appeal has or might have a bearing on future applications. He also made the submission that that the appeal has a bearing on contempt proceedings. In relation to that later point, it appeared from the grounds of appeal that it was being suggested that the judge who dealt with the judicial review claim had, in some way, ruled on whether there had been a failure to comply with the earlier interim order (made by a different judge). In argument, it became clear that what was being said was that the defence to committal proceedings in relation to the interim order, might be made more difficult or undermined because of the findings of the judge when dealing with the final claim. I express no view at all on any of those arguments about whether or not the appeal would be academic. As I say, it maybe that those matters will have to be considered by the court that deals with this appeal, either before or at the hearing in some way. I will discuss with the parties' arrangements for skeleton arguments after I have given this judgment.

19. For the moment, it seems to me that the grounds three, four, five and six do have a realistic prospect of success and I do not think it would be right to refuse permission at this stage, on the grounds that the matter has become academic. I do however consider that grounds seven and eight have no realistic prospects of success and I refuse permission in relation to those. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 46 Chancery Lane, London WC2A 1JE Tel No: 020 7404 1400 Email: [email protected]