Local Government - March 2009

Albert Haddock rides again?

Readers with long memories, or groaning bookcases, will remember Albert Haddock. He is the archetypal litigant in person, whose redoubtable exploits were recorded by the author and humourist AP Herbert in a series of “Misleading Cases”, and who even found his way onto the television in the late 1960s.  His most famous case involved a successful attempt to pay his income tax by affixing a tuppeny stamp to a large white cow, thus creating a negotiable instrument.

Sadly, what works in fiction does not always work in real life (see Lightman J in Victor Chandeler International Ltd [1999] EWHC Ch 214, for some thoughts on the cow), so how did two twenty-first century litigants in person get on when they ventured into the wacky world of local government law, and the court of Mr Justice King?

R (on the application of Joyce) v Watkinson 19 February 2008 [2008] EWHC 329

Mary Jo Joyce is a member of group called  “Neighbours Against Demolition” which opposes the acquisition and demolition of Victorian terraced houses in Bootle, Merseyside, under Sefton Council’s Housing Market Renewal programme.  Tim Watkinson is the District Auditor, who audit’s Sefton’s accounts.  Ms Joyce objected to the Council’s accounts, on the basis that, within the Council’s voluntary acquisitions programme 2004/2005, “certain acquisitions were not properly authorised in law by the Council and may therefore be unlawful.”  Mr Watkinson decided not to uphold her objection, and declined to exercise his power under the Audit Commission Act 1998 to apply to the court a declaration that the item of account was contrary to law.  Ms Joyce exercised her right of appeal against that decision, under section 17(3) of the Act.  This was the sequel to her earlier unsuccessful attempt to challenge the Council’s CPO resolutions (R (on the application of Powell and Others) v Secretary of State for Communities and Local Government [2007] EWHC 2051).

Her argument was that the relevant Cabinet reports seeking authority to acquire these properties by agreement did not explain that acquisition would be pursuant to section 227 of the Town and Country Planning Act 1990, for the purposes set out in section 226A.  How, she asked, could she come to grips with the report?  How could she know which statutory powers were being used?  How could she work out whether or not they were being exercised properly?  And, come to that, how could the Auditor have satisfied himself that the expenditure was lawful?

King J dismissed the appeal.  It may be good practice to cite the authorising power in a resolution to acquire by agreement, but failure to do so does not invalidate the decision.  The DA knows local government law, has access to all the reports, can satisfy himself that they were seen by the Council’s legal department, and can see the land transfers which recite the power to acquire.  A local resident can ask him to exercise these powers.  In addition, the underlying scheme was clear from published papers, so even if the decision had been procedurally flawed, King J would not have exercised his discretion to quash it.

Counsel for Mr Watkinson asked for £18,283.47 legal costs.  Ms Joyce said that, for 52 hours work, the hourly rate was more than she received in a week from her pension.  The Judge ordered costs to be assessed.

R (on the application of Abrams) v Secretary of State for Communities and Local Government 2 July 2008 [2008] EWHC 2648 (Admin)

Mr Abrams sought judicial review to challenge the enactment of sections 171 (7) and 175 of the Local Government and Public Involvement in Health Act 2007.  The former allows the Local Government Ombudsman to decide not to investigate a complaint, or to discontinue an investigation.  The latter allows the Ombudsman to decide not to report the outcome of his or her investigation to the Council.  In both cases he or she must be satisfied with the action that the Council is taking.  Mr Abrams said that these provisions encouraged “cosy local settlements” and undermined the purpose of the Local Government Act 1974. He argued that Parliament had not understood the effect of the legislation, and that it was incompatible with the ECHR and the Human Rights Act.  Like Ms Joyce, this was not Mr Abrams first tilt at the issue.  He had lodged a complaint against Hammersmith and Fulham Council.  The Council had agreed to pay him £500, on the Ombudsman’s recommendation.  The Ombudsman had followed the old informal practice of discontinuing the investigation.  Mr Abram’s challenge failed in the Court of Appeal, on the ground that his application was out of time.  Although the Judge at first instance said that it was within the Ombudsman’s discretion, and the Court of Appeal expressed no view on the merits, the 2007 Act aimed to put the practice on a statutory basis.

King J said that the Court was unable to order the repeal or suspension of an Act of Parliament, or to enquire into the adequacy of the Parliamentary debates.  On the ECHR point, he considered Article 10 (right of freedom of expression) and Article 3 (right to free elections).  He said that Article 10 did not impose an obligation on the state to complete and report on a statutory investigation, and that Article 3 did not mean that the failure to compel the Council to consider publicly a report on its alleged incompetence interfered with the flow of information necessary to give meaning to the electoral process (an argument which Mr Abrams conceded was somewhat tenuous).  He refused permission for judicial review.

The Commission for Local Administration in England – the Ombudsmans Service – had joined the proceedings as an interested party.  Neither they nor the Secretary of State appeared at the hearing, but the CLAE sought costs of £3,159 for preparing their summary grounds of contesting the appeal.  It is unusual for an interested party to be awarded costs at permission stage, and King J made no order as to costs.  En route to this decision he sought to establish the identity of the defendant – the Secretary of State.  Mr Abrams explained that Hazel Blears had replaced Ruth Kelly.  “Either way, it is female” said King J.  Mr Abrams said that he would submit the judgement to the European Court of Human Rights.

Comments
I intend no disrespect at all in aligning Ms Joyce and Mr Abrams with Albert Haddock, who had a fine record of success in his proceedings and who was, in many ways, AP Herbert’s alter ego.  Local government lawyers will be happy to note that a decision which does not quote the authorising power is not unlawful, and that Parliament can allow the Ombudsman to discontinue investigations, but the ability of the litigant in person to argue hopeless causes before a judge is an important feature of our legal system and should be treasured.

How hopeless were these applications, though?  It is easy to dismiss them as futile, but similar issues have troubled the Courts in other cases. 

Only a few miles away from Bootle, English Partnerships made a CPO under the Leasehold Reform, Housing and Urban Development Act 1993 to acquire terraced houses in Kensington, Liverpool, as part of another renewal programme.  In Elizabeth Susan Pascoe v First Secretary Of State & (1) Urban Regeneration Agency (Operating Under The Name English Partnerships) (2) Liverpool City Council [2006] EWHC 2356 (Admin), Ms Pascoe succeeded in her application to quash the CPO.  In essence, the case turned on the words used by the Inspector in his report following the CPO Inquiry.  He had found that the land in question was “predominantly under-used or ineffectively used”.  The word “predominantly” did not appear in the authorising statute.  The Inspector had applied the wrong test.  And, in the recent case of R. (on the application of McCarthy) v Basildon DC [2009] EWCA Civ 13, the Equality and Human Rights Commission argued that the Council’s failure to refer explicitly to its duties under section 71 of the Race Relations Act invalidated its decision to take direct action to evict gypsy families from land they were occupying in contravention of a planning enforcement notice.  This point reached the Court of Appeal, where it was, however, unsuccessful.

Perhaps Mr Abrams can draw comfort from two other recent cases.  R (on the Application of Christopher Mellor) v Secretary of State for Communities & Local Government [2008] EWCA Civ 213 concerned a decision of the SoS that an environmental impact assessment was not required on a planning application for a medium secure hospital unit in Harrogate.  Mr Mellor said that the SoS should give reasons for the decision.  She said that neither the Regulations nor the Directive behind them required this.  The Court of Appeal referred the point to the European Court (Case C 75/08).  The Advocate General has just issued an opinion that reasons must be given.  The Directive may not be explicit, but general principles of community law apply.  R (on the application of Wright & Ors) v Secretary of State for Health [2009] UKHL 3 concerned the Protection of Vulnerable Adults (POVA) list.  The Care Standards Act 2000 allows the SoS to place care workers on a list of people considered unsuitable for looking after vulnerable adults.  The system includes a provisional listing followed some months later by a determination.  In the meantime, the worker is banned from working in this field, and their reputation is damaged.  There is no right to a hearing before provisional listing.  The House of Lords held that the system was incompatible with ECHR Article 6 (right to a fair trial) and Article 8 (right to respect to family and private life). New legislation waits in the wings.

We can, of course, draw obvious legal distinctions between Joyce and Pascoe, and between Abrams and Mellor and Wright.  The doctrine of precedent depends on the ability so to do.  But how easy would it be to explain them to a layman?  In Joyce, the Council did not make it clear what powers it was using to acquire land for its demolition programme, and in Pascoe the Inspector said what the power was but used the wrong words.  In Abrams, the legislature’s decision that a local authority can buy its way out of adverse publicity for maladministration could not be challenged.  In Mellor, the Courts seem likely to oblige it to rewrite regulations to require reasons to be given for a decision not to follow an expensive and time-consuming procedure, and in Wright a system designed to give immediate protection to vulnerable adults will have to be scrapped.  Away from the courtroom, the distinctions speak to values, rather than logic.

Vexatious litigants, however comical, need to be restrained.  They upset people and cost a lot of money which could be better spent elsewhere.  But a 2004 DCA study found that obsessive or difficult litigants were a very small minority of unrepresented litigants generally.  Sometimes they succeed.  In Wulfsohn v Legal Services Commission [2002] EWCA Civ 250 a litigant in person not only overturned a decision of the Legal Services Commission to revoke his legal aid certificate in possession proceedings, but was also awarded £10,460 costs.  Provided Mr Haddock, Ms Joyce and Mr Abrams do not step over the line, we should perhaps cherish their right to a day in court.

Graeme Creer
Partner
Weightmans LLP