Regina v Westminster City Council Ex Parte Ermakov: CA 14 Nov 1995

The applicant, having moved here from Greece, applied for emergency housing. The Council received no reply to its requests for corroboration sent to Greece. Housing was refused, but the officer later suggested that the real reason was that the applicant had accommodation available in Greece. The court considered an affidavit on behalf of the decision-maker explaining that the true reasons for the decision where not those expressed in the decision letter but different reasons set out in the affidavit.
Held: A Local Authority cannot later change the reasons given for a finding of intentional homelessness. The courts are not receptive to ex post facto justification of decisions.
Hutchinson LJ considered the circumstances in which it was appropriate to admit and rely upon evidence adduced for the purpose of explaining or adding to the reasons for a decision made by a decision-maker, and said: ‘The Court can and, in appropriate cases, should admit evidence to elucidate or, exceptionally, correct or add to the reasons; but should, consistently with Steyn LJ’s observations in ex p Graham, be very cautious about doing so. I have in mind cases where, for example, an error has been made in transcription or expression, or a word or words inadvertently omitted, or where the language used may be in some way lack in clarity. These examples are not intended to the exhaustive, but rather to reflect my view that the function of such evidence should generally be elucidation not fundamental alteration, confirmation not contradiction.’
Hutchinson LJ expressed the general principle: ‘While it is true, as Schiemann J recognised in Ex p Shield, that judicial review is a discretionary remedy and that relief may be refused in cases where, even though the ground of challenge is made good, it is clear that on reconsideration the decision would be the same, I agree with Rose J’s comments in Ex p Carpenter that, in cases where the reasons stated in the decision letter have been shown to be manifestly flawed, it should only be in very exceptional cases that relief should be refused on the strength of reasons adduced in evidence after the commencement of proceedings. Accordingly, efforts to secure a discretionary refusal of relief by introducing evidence of true reasons significantly different from the stated reasons are unlikely to succeed.’


Hutchinson LJ


Times 20-Nov-1995, [1996] 2 All ER 302, [1995] EWCA Civ 42, (1996) 28 HLR 819, [1996] COD 391, (1996) 8 Admin LR 389, [1996] 2 FCR 208, (1996) 160 JP Rep 814




Housing Act 1995 64


England and Wales


CitedWestminster City Council v Great Portland Estates plc HL 31-Oct-1984
The House was asked whether the 1971 Act permitted the relevant authorities, by resort to their development plans, to support the retention of traditional industries or was the ambit of the Act such as to permit only ‘land use’ aims to be pursued? . .

Cited by:

CitedEston Bernard v London Borough of Enfield CA 4-Dec-2001
The applicant sought review of a decision by the local authority that he was intentionally homeless through a failure to pay his rent. He appealed a rejection of leave to appeal, and his appeal was with regard to the adequacy of the reasons given by . .
DistinguishedFreeserve Com Plc, Regina (on the Application Of) v Customs and Excise Admn 31-Oct-2003
The applicant sought to challenge a decision of the respondent not to charge a US competitor trading within the UK to VAT. They complained that the decision had been affected by irrelevant considerations.
Held: A supplier making supplies from . .
CitedRichardson and Orme v North Yorkshire County Council CA 19-Dec-2003
The claimants appealed against an order dismissing their application for a judicial review of the respondent’s grant of planning permission. They contended that a councillor with an interest in the matter had wrongfully not been excluded from the . .
CitedWall, Regina (on the Application of) v Brighton and Hove City Council Admn 2-Nov-2004
Application for judicial review, seeking an order quashing a grant of planning permission dated by the defendant for the demolition of an existing house and its replacement by eight self-contained apartments. The notice granting planning permission . .
CitedOxfordshire County Council v GB and Others CA 22-Aug-2001
When an appeal was lodged against the decision of the Special Educational Needs Tribunal, it was wrong for that Tribunal later to expand on its reasons, save in exceptional circumstances. Parental preference was not an overriding consideration, . .
CitedMachado v Secretary of State for the Home Deptment CA 19-May-2005
At issue was a decision of the Home Secretary to deport on grounds of public policy a foreign national married to an EU national with a right of establishment in the United Kingdom. The substantive issue was whether the decision of the IAT to uphold . .
CitedGreen, Regina (on the Application of) v South West Strategic Health Authority Admn 28-Oct-2008
The claimant said that whilst resident in a care home, her care should have been paid for as health care under ‘Continuing Health Care.’ She said that the decision maker had failed to comply with the Health Authorities guidelines.
Held: In . .
AppliedLeung v Imperial College of Science, Technology and Medicine Admn 5-Jul-2002
Silber J considered the circumstances in which it was proper to take into account additional evidence surrounding the circumstances in which a decision under challenge had been made. He added to those in Ermakov the issue of whether it would be just . .
CitedRegina (Ashbrook) v East Sussex County Council CA 20-Nov-2002
The claimant complained that the respondent had failed properly to secure removal of an admitted obstruction to a public footpath. The landowner had applied for a diversion of the footpath, which the respondent recommended for adoption, but the . .
CitedClive Rees Associates, Solicitors, Regina (on The Application of) v Swansea Magistrates Court and Another Admn 30-Nov-2011
The claimant solicitors challenged a decision of the respondents to transfer legal aid orders for the representation of clients to a second frm of solicitors.
Held: The court considered the various cases, finding three decisions unlawful and . .
CitedNzolameso v City of Westminster SC 2-Apr-2015
The court was asked ‘When is it lawful for a local housing authority to accommodate a homeless person a long way away from the authority’s own area where the homeless person was previously living? ‘ The claimant said that on applying for housing she . .
CitedChief Inspector of Education, Children’s Services and Skills v The Interim Executive Board of Al-Hijrah School CA 13-Oct-2017
Single Sex Schooling failed to prepare for life
The Chief Inspector appealed from a decision that it was discriminatory under the 2010 Act to educate girls and boys in the same school but under a system providing effective complete separation of the sexes.
Held: The action was . .
Lists of cited by and citing cases may be incomplete.

Housing, Judicial Review

Updated: 09 December 2022; Ref: scu.88304