This is a question that will need to be answered when considering an appeal. In the housing context this will most commonly be considered when appealing a possession order or a homelessness decision. Generally points of fact are seen as settled by the original decision maker. For instance, section 77(6) of the County Courts Act 1984 provides that a tenant may not appeal on an issue of fact if proceedings are based on discretionary grounds for possession. In a homelessness appeal the County Court’s role is limited to considering whether the review officer has reached a lawful decision, not to make its own finding of fact.
A point of law can more simply be thought of as an error of law that has made a difference to the outcome. Commentators have said that, ‘The courts ought … to guard against any artificial narrowing of the right of appeal on a point of law, which is clearly intended to be a wide and beneficial remedy. Very difficult questions of law have to be determined by many tribunals and for the sake of consistency and fairness it is important that the guidance of the courts should be available…The extension in recent years of the right of appeal on questions of law has … done much to assist the integration of the tribunal system with the general machinery of justice. Judicial policy ought to reinforce this beneficial trend’ (7th edition of Wade & Forsyth’s Administrative Law). It is important as individual judges are accountable through the right of the party to proceedings to appeal any judicial decision. The court determining an appeal will correct errors by the trial judge and the right of appeal ensures that, as far as possible, courts arrive at correct decisions.
Examples of potential points of law include where a Judge has:
- Misinterpreted the law;
- Reached a decision unsupported by evidence;
- Failed to take into account and/or resolve conflicts of fact or opinion on material matters;
- Gave weight to immaterial matters;
- Acted in a procedurally unfair way; and/or
- Failed to give adequate reasons.
Key questions to ask are:
- Have statutory/case law definitions of words and phrases been interpreted and applied correctly?
- Has case law been applied which is in conflict with a senior court decision?
- Was all relevant evidence considered?
- Was there adequate reasons for preferring, accepting or rejecting evidence?
- Was there bias?
- Was there a fair hearing?
- Was evidence considered that was obtained illegally or improperly?
- Is there sufficient detail to explain why the decision was made?
Potential errors of law for an appeal of a possession order
Bearing in mind the above, a non-exhaustive list of potential errors of law when looking at the decision to make a possession order include a failure to:
- Properly apply CPR 55.8 and whether the claim is ‘genuinely disputed on grounds that appear to be substantial’;
- Apply the primary legislation (e.g. granting possession on Ground 8 (Housing Act 1988 Schedule 2) when it is accepted the arrears are one month’s rent);
- Give reasons for a possession order;
- Take into account relevant factors/material evidence.
Potential errors of law for an appeal of a homeless decision
This includes, not only matters of legal interpretation, but any ground of challenge that would be available in an application for judicial review. Judicial review can be categorised under three heads: ‘illegality’, ‘irrationality’ and ‘procedural impropriety’ (Lord Diplock in CCSU v. Minister for Civil Service [1985] AC 374).
Illegality is a claim that a public law decision-maker has acted unlawfully by exceeding its legal powers, or misunderstanding or in some way abusing them.
Irrationality is ‘a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it’. Today the courts often favour the language of ‘unreasonableness’ over ‘irrationality’.
Procedural impropriety is the ‘failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision’. This covers the ‘rule against bias’, the ‘right to be heard’ and the right to give reasons for a decision.
This would include where a Council has:
- Failed to make appropriate enquiries;
- Failed to give the applicant the benefit of the doubt;
- Failure to put basic issues to the applicant;
- Operated a blanket policy;
- Delegated decision making to an unauthorised body;
- Gone back on a legitimate expectation e.g. where the Council had committed to providing accommodation to an applicant;
- Acted dishonestly or in bad faith; and
- Come to a decision which is so unreasonable that no reasonable Council could have come to it.
What is the difference between a judicial review and an appeal?
Judicial review is limited to examination of the lawfulness of decisions that are made by a public body. In other words, judicial reviews are a challenge to the way in which a decision has been made, rather than the rights and wrongs of the conclusion reached. If successful the court can make: a declaration; an order quashing the decision in question (quashing order); an order requiring the body under review to carry out its legal duties (mandatory order); an order restraining the body under review from acting beyond its power (prohibitory order); a stay or injunction; damages.
In contrast an appeal may allow the appellate court to stand in place of the original decision-maker and re-make findings of fact or law, or both. The court can set aside or vary the initial order or judgment, refer a claim or issue back to the lower court. It also has the option of ordering a new trial or hearing.
In homelessness appeals the County Court’s role is limited to considering whether the review officer has reached a lawful decision, not to make its own findings of facts. As a result, in the majority of successful appeals the court will not change the decision, but order the Council to make a new decision.
*The above entry has been helped by reference to Housing Possession Duty Desk (https://www.lag.org.uk/shop/book-title/209683/housing-possession-duty-desk—a-practical-guide) and Shelter Legal.
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