Richmond-upon-Thames LBC v Kubicek [2012] EWCA 3292 (QB) is not a judicial review case, but it is of significance in relation to a judicial review or similar challenge based on a material error of fact giving rise to unfairness. The Richmond case was itself a statutory appeal. It raised an issue as to when, if ever, it is permissible for a County Court, hearing an appeal under s204 of the Housing Act 1985, on “any point of law” arising from a review decision made by a local housing authority in a homelessness case, to receive evidence on, and decide a question of fact relevant to, the review decision. It is well established that an appeal “on any point of law” is in substance the same as a judicial review. One of the issues on the appeal was whether new evidence which Mrs Kubicek sought to adduce was relevant to any issue on the s204 appeal.
It was common ground that under the statutory scheme of Part VII of the 1985 Act questions of fact are generally for the local housing authority making the review decision to determine. For that reason, the usual process on any appeal pursuant to s204 is for the matter to be determined on the basis of submissions as to the rationality and propriety of the review decision in the light of the material before the reviewing officer at the time of the decision. Evidence which was not before the reviewing officer is not usually relevant. The authorities, however, indicate that there are two purposes for which fresh evidence may be relevant on a s204 appeal. One such purpose is to show how the review decision was reached, including what material was before the reviewing officer and what procedure was followed. These matters may be relevant where, for example, it is alleged that there has been a failure to comply with the requirements of natural justice. An allegation that the decision-making process was tainted by misconduct on the part of someone involved in it would fall into this category. Where such an allegation is made, it is for the court to find the relevant facts, and evidence will be relevant and admissible to prove the misconduct or other alleged procedural impropriety.
A second purpose for which it is now clear that evidence may be relevant is to demonstrate that the decision subject to appeal was based on a material error of fact giving rise to unfairness. In the leading case of E and R v Home Secretary [2004] QB 1044, the Court of Appeal reviewed the authorities bearing on the question of whether, and if so when, a decision reached on an incorrect basis of fact can be challenged on an appeal limited to points of law. Carnwath LJ, as he then was (who gave the judgment of the Court) concluded at [66]:
“In our view, the time has now come to accept that a mistake of fact giving rise to unfairness is a separate head of challenge in an appeal on a point of law, at least in those statutory contexts where the parties share an interest in co-operating to achieve the correct result. Asylum law is undoubtedly such an area. Without seeking to lay down a precise code, the ordinary requirements for a finding of unfairness are … First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been “established”, in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not been have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the tribunal’s reasoning.”
In the Richmond case Leggatt J made four observations about this important statement of principle. The first is that in the way that this ground of review has been analysed by the Court of Appeal the purpose for which evidence is potentially relevant can be seen as an extension of the first purpose – that is, to show how the review decision was reached. In connection with this ground, evidence may be relevant to show not only what material was before the reviewing officer but also that evidence was available which was not placed before the reviewing officer and how that came about.
Second, although the Court of Appeal explained this ground of review as based on a principle of fairness, it is clear that the question whether there has been unfairness is not to be determined independently of the four requirements identified by the Court of Appeal; rather, the unfairness arises from the combination of factors which exist when those requirements are all met: see the analysis at [63].
Third, although the Court of Appeal suggested that the principle may be limited to “those statutory contexts where the parties share an interest in co-operating to achieve the correct result”, it is difficult to think of any context in which it would not be said that a public authority exercising a statutory function has an interest in ensuring that its decision is made on an accurate factual basis. Certainly decisions about housing assistance must fall within the scope of the principle as much as the decisions about asylum and planning control to which Carnwath LJ referred at [64].
Fourth, the second of the four requirements stated by Carnwath LJ is clearly of critical importance, but may possibly need some fine tuning. If, in order to decide that there has been a material mistake of fact, the court was entitled or required to resolve a factual dispute itself, then the court would be substituting its own finding of fact for that of the public body to which Parliament has given that task. Accordingly, to require that the fact has been “established” in the sense of being not merely objectively verifiable but uncontentious seems to be essential if a workable distinction between errors of law and errors of fact is to be maintained. It is less obviously essential that, where the fact about which a mistake is said to have been made is the availability of evidence on a particular matter, the evidence and not just the fact of its availability must be uncontentious. A court would not necessarily be usurping the function of the fact-finding body if it were to require the body to reconsider a decision made without knowledge of credible, even if not uncontentious, evidence which, if the decision-maker had been aware of it, might have led to a different result. A requirement that the evidence must have been uncontentious might also be thought to defeat the point of the Court of Appeal’s indication that the availability of evidence on a particular matter may itself be a relevant fact; for if evidence of a particular fact is uncontentious then so presumably is the fact itself.