Nzolameso v Westminster – The Duty to Give (Good) Reasons

In Nzolameso v City of Westminster, the Supreme Court addressed itself to two related and important questions in public law. Where a public authority gives reasons for a decision, what standard of reasoning is expected of it? And where its reasons are silent about a matter to which it needed to have regard, how are the courts to interpret that silence?

The case is part of a wider trend in public law to raise the bar on the standard required of decision-making, and is therefore of considerable significance beyond its immediate context.

Background

It used to be said that there was no general duty to give reasons for administrative decisions. While this formally remains the case, the reality is that the requirements of procedural fairness will often demand that some reasons be given. As the Judicial Committee of the Privy Council put it in Stefan v General Medical Council [1999] UK PC 10 (at 22) –

‘The trend of the law has been towards an increased recognition of the duty upon decision-makers of many kinds to give reasons…There is certainly a strong argument for the view that what were once seen as exceptions to a rule may now be becoming examples of the norm, and the cases where reasons are not required may be taking on the appearance of exceptions.’

Where reasons are given, they must be ‘adequate’. What this means (and does not mean) was described in the classic statement by Lord Brown in South Bucks District Council v Porter [2004] UKHL 33 –

‘The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the “principal important controversial issues”, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated…The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn…A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.’ [36]

Nzolameso occupies this latter territory, and is concerned with the standard of reasons required in a case in which reasons are required to be given.

The Facts

Ms Nzolameso is a single mother of five children who suffers from various chronic illnesses. For several years until late-2012 she lived in private rented accommodation in Westminster, her rent met by housing benefit. Following the introduction of the government’s cap on housing benefit, that rent no longer became affordable, and she was rendered homeless.

Her local authority offered a five-bedroom house in Bletchley, near Milton Keynes. This was rejected by Ms Nzolameso on the basis that it was too far away from her support networks, GP and children’s schools. In response, the council notified her that, its offer of accommodation having been rejected, it had discharged its duty towards her and was no longer required to house her. Ms Nzolameso sought a statutory review of this decision.

What was not in doubt was: that the City of Westminster had a duty to secure that ‘suitable’ accommodation was available to Ms Nzolameso; that the location of any accommodation offered was relevant to its suitability; that as far as ‘reasonably practicable’, the accommodation should have been within Westminster; and that, in any event, it should have been as close as possible to where she was previously living. All of this flowed from the primary legal duty (under section 193 of the Housing Act 1996), secondary legislation made under that Act, case law, and statutory guidance issued by the Secretary of State.

The review decision nonetheless concluded that, by the offer of accommodation in Bletchley, the council had fully discharged its duty. It considered in detail Ms Nzolameso’s family circumstances, and found that there no compelling reasons why she had to live in Westminster. In particular, none of her children was about to sit for major exams, so all could move elsewhere without their education suffering.  It then stated –

The Court of Appeal

In its judgment, at [2014] EWCA Civ 1383, the Court of Appeal dealt with a number of issues that were not considered later by the Supreme Court.  But on the key question of the standard of the council’s reasoning, it had little difficulty.

Giving the judgment of the Court, Moore-Bick LJ said, as to the test of what was reasonably practicable –

‘[The reviewing officer] must, in my view, be taken to have been aware of the resources available to the council and the pressures on them. It is not necessary in a decision letter of this kind for the reviewing officer to describe in detail what those resources and pressures are…it was sufficient for the reviewing officer to describe the circumstances which led to her conclusion in general terms.’  [21]

As to the statutory guidance, it was lengthy and detailed, and the reviewing officer could not be criticised for having failed to make express reference to it –

‘In my view there is no basis for inferring that she did not have it in mind or that she was unaware of the desirability of accommodating Ms Nzolameso as close to Westminster as was reasonably practicable…She described the pressures on Westminster and explained the accommodation that was offered on the basis of the applicant’s circumstances. In my view that was sufficient; it was not necessary for her to explain in detail what other accommodation was available to Westminster outside its own district and why it had not been offered to Ms Nzolameso.’ [25]

For the Court of Appeal, the local authority’s failure to make explicit reference to these relevant matters or (where it did do so) to deal with them in detail, gave rise to no unlawfulness. The Court was willing to assume that the council had regard to all the relevant matters, even though its reasons did not expressly document that fact.

The Supreme Court

The Supreme Court also had little difficulty in reaching a unanimous position, but its perspective on the case was radically different.

Before the Supreme Court there were two interveners. First, Shelter, which drew attention to the local authority’s duty (under section 11 of the Children Act 2004) to have regard to the need to safeguard and promote the welfare of children – another requirement to which no explicit reference was made in the decision. Second, the Secretary of State for Communities and Local Government, who expressed a series of concerns about the effect of the approach taken by the Court of Appeal.

The latter’s position was summarised by Lady Hale (giving the only judgment of the Court) as follows –

‘The Secretary of State complains that the effect of [the Court of Appeal’s] approach would be to encourage courts to infer, on no other basis than the assumed experience and knowledge of a local authority, that the authority knew of the [statutory guidance] and had taken it into account; that the authority had considered and rejected the possibility of providing closer accommodation than that offered; and that the authority had good reasons for their decision in this particular case. If the courts are prepared to assume all this in the authority’s favour, this would immunise from judicial scrutiny the “automatic” decisions to house people far from their home district…’  [35] (emphasis added)

The Supreme Court agreed. As to the standard which was in fact required, it must be clear from the decision that proper consideration has been given to all the relevant matters relevant to the discharge of the statutory duty. This is grounded in an important principle –

‘It has long been established that an obligation to give reasons for a decision is imposed so that the persons affected by the decision may know why they have won or lost and, in particular, may be able to judge whether the decision is valid and therefore unchallengeable or invalid and therefore open to challenge…’ [32]

Without a properly reasoned explanation, a reviewing court will not know whether an authority has fulfilled its statutory obligations. In this case there was little to suggest that serious consideration was given to the council’s obligations before the decision was taken to offer the property in Bletchley [36].  A standard form of words could never be sufficient.

Therefore the decision made by the council failed to meet the basic requirements of public law.  It did not do enough to demonstrate to the Court that the council had done what was needed to discharge its obligations either under the Housing Act 1996 or Children Act 2004 [37].  For that reason, it had to be quashed.

Commentary

Neither the Court of Appeal nor Supreme Court engaged in lengthy analysis of previous case law.  This was a case decided on first principles.  And yet their approaches were diametrically opposed.

The Court of Appeal’s position was pragmatic and sympathetic to the local authority. For it, in cases of this nature, both the factual circumstances and statutory requirements were complex and it could not sensibly be expected that a council officer could deal with them all in detail when giving reasons for her decision. A failure to do so should not be taken against her. It is reasonable to make some assumptions about the knowledge of the decision-maker and the matters to which she had regard.  The decision-maker should have the benefit of the doubt.

In contrast, the Supreme Court appears principled and sympathetic primarily to the individual finding herself face-to-face with the power of the state. For it, a decision-maker must explain her reasons in full because only in that way could the decision be understood and held up to judicial scrutiny. It would be wrong to assume the knowledge or decision-making process of the officer in question, where the effect of doing so was merely to operate an unjustified presumption of validity. A decision-maker with a duty to give reasons needs to ensure that they are good enough to demonstrate how it has discharged its obligations.  The individual affected by a decision should have the benefit of the doubt.

Observers feeling jaundiced about the attitude taken to judicial review by the 2010-2015 coalition government might note with surprise the extent to which the Secretary of State’s intervention leant heavily in favour of this second view, and did so explicitly on the basis that it preserved fundamental constitutional protections.

Is the Supreme Court’s judgment in Nzolameso confined only to its particular context? There seems to be no good reason for thinking so. While undoubtedly the case was of huge personal importance to the individual affected, the same could be said of many decisions made by public authorities in a wide range of other contexts. Ms Nzolameso’s case was not even pleaded as a rights argument (although Lady Hale strongly hinted that it could have been [29]). The justification for the Court’s approach was expressed as one of fundamental constitutional principle, applicable generally.

Instead, it might be better to consider the judgment as an extension of a range of recent decisions about matters which must explicitly be raised with public authority decision-makers before they make their decisions, in particular where they concern the nature of the legal duties by which the decision-makers are bound.

In cases as widely divergent as R (Chavda) v London Borough of Harrow [2007] EWHC 3064 (Admin) and R (Wood) v Leeds City Council [2014] EWHC 2598 (Admin) the courts have been unwilling to infer from silence that decision-making bodies must have been aware of the legal tests that they were duty-bound to apply. In Nzolameso, the Supreme Court was unwilling to infer from silence that a decision-making body which was aware of relevant legal tests had applied them properly.

How does this fit with the requirement for reasons to be ‘adequate’? The Supreme Court acknowledged that the courts should not ‘adopt an overly technical or “nit-picking” approach to the reasons given’ [32]. Nonetheless, it is the judgment of the Court of Appeal which feels much closer to the spirit of Lord Brown’s observations on adequacy in Porter. For the Supreme Court, adequate reasons require something more.

The feeling persists that the courts are slowly and steadily raising the bar on the required standard of decision-making and the evidence needed to prove that it has been met. Nzolameso may well prove to be an important route marker on this journey.