When a deficiency makes no difference.

Ibrahim v London Borough of Wandsworth [2013] EWCA Civ 20

The question for the Court of Appeal in this second appeal from a homeless appeal, was “How should the courts deal with a plainly deficient homelessness decision when the deficiency has had no adverse consequences for the applicant?”. The issue being the effect of the lack of a ‘minded to’ letter requesting submissions under Regulation 8(2) Allocation of Housing and Homelessness (Review Procedures) Regulations 1999. As we’ll see, the Court of Appeal agrees on the result, but not on the way of getting to it.

Ms I was a homeless applicant to Wandsworth, following her eviction from a private tenancy (on a s.21 notice, it appears). The landlord claimed that she had not paid the first 8 weeks rent. Ms I had received the rent in Housing Benefit. Ms I asserted that she had paid the rent to the landlord’s brother, who had made the letting while the landlord was abroad.

Wandsworth accepted the landlord’s assertion without asking the brother if he had received the money and found that Ms I was intentionally homeless. Ms I requested a review, arguing, in part, that this was not fair or rational. The review upheld the decision not to contact the brother, as indeed did the subsequent s.204 appeal. However, this was not an issue on which permission was granted for the present second appeal.

The issue under appeal was rather the effect of what was stated in the original decision letter. The letter stated:

The Council’s obligation towards persons considered to be in priority need but intentionally homeless is limited to providing them with advice and appropriate assistance to enable them to find their own accommodation. This means that you are not entitled to rehousing by the Council under the provisions of the above-mentioned Act. In order for you to obtain advice and assistance about the means by which you might find your own accommodation, I have arranged an appointment for you on:

Wednesday 20TH April at 9.15 a.m. with the Council’s Housing Options Team.

As you have dependant children I will arrange for you to be referred to our Social Services Department, Children & Families division, in order that they can make an assessment of any further assistance that you might be eligible to, under the provisions of the Children Act 1989.

As you are in temporary accommodation provided by the Council, legal proceedings will be taken to repossess this accommodation.

As Sir Stephen Sedley’s judgment notes

This was seriously erroneous. The council’s obligation was not limited to providing advice and assistance. Far from being entitled simply to evict the applicant as threatened, under s.190(2) the council had an obligation to her, as a person with priority need because of her dependent children, to secure that accommodation was available to her for such period as they considered would give her a reasonable opportunity of securing accommodation for herself.

Ms I’s s.202 review request, by Battersea Law Centre, didn’t raise this ‘error’ in the s.184 decision, possibly because Wandsworth had subsequently agreed interim accommodation pending review (and later appeal). So there was no detriment to MS I.

The review decision also did not identify the error in the s.184 letter, but did correctly state the Council’s obligations on a finding of intentional homelessness, which the review confirmed.

In the s.204 appeal, when this issue was raised, the Court found that while the s.184 decision contained a clear ‘factual error’, this was:

not of sufficient importance to justify engaging regulation 8(2). The issue between the parties was whether the appellant had made herself intentionally homeless, not whether the local authority had a duty to temporarily rehouse her. In the circumstances, where the appellant was being temporarily provided with accommodation, the reviewer’s failure to engage regulation 8(2) was not unreasonable.

This was the subject of the second appeal to the Court of Appeal.

Ms I argued that

the reviewer was bound by simple rationality to conclude that there was a deficiency in the original decision. The error was not superficial or trivial: it was radical. It followed that the reviewer had been under an obligation to notify the applicant that she was minded to uphold the decision nevertheless, and to consider anything the applicant said in response before coming to a conclusion. The failure, submits Mr Marshall Williams [for MS I], is fatal to the review decision regardless of the likelihood of a relevant or effective response from the applicant.

The Council argued that

unless the deficiency amounts to “something lacking of sufficient importance to the fairness of the procedure to justify an extra-procedural safeguard”, it is not covered by the regulation 8(2) process, and that whether it is in this class is for the reviewer alone to judge, subject only to Wednesbury level oversight by the courts.

And then the Court of Appeal took a couple of different routes.

Sir Stephen Sedley reviews Hall v Wandsworth LBC [2004] EWCA Civ 1740 and Banks v Kingston-upon-Thames RLBC [2008] EWCA Civ 1443 on the meaning of a ‘deficiency’ in Regulation 8(2), to the effect that “the ‘something lacking’ must be of sufficient importance to the fairness of the procedure to justify an extra procedural safeguard’, and ‘Whether that is so involves an exercise of ‘evaluative judgment’ (see Runa Begum v Tower Hamlets London BC [2003] 1 All ER 731 at [114], [2003] 2 AC 430 at [114] per Lord Walker of Gestinthorpe), on which the officer’s conclusion will only be changeable on Wednesbury grounds”. [Hall v Wandsworth at 29]

Mitu v Camden LBC [2011] EWCA Civ 1249 is taken as an explanation of Hall, when Lewison LJ says:

Section 203 (4) distinguishes between a “decision” and an “issue”. Regulation 8 (2) also speaks of a deficiency in a “decision” and distinguishes that from “issues” on which the reviewer is minded to find against the applicant. Thus a thread running through both the primary legislation and regulations is a clear and consistent distinction between the decision on the one hand, and issues on the other. Mr Russell argues that it is the decision that is subject to review, and that it is wrong to split a decision into discrete issues in order to consider whether there is a deficiency in the decision. In my judgment he is right.”

And finally, the usual passage from Holmes-Moorhouse v Richmond-upon-Thames LBC [2009] UKHL 7 [at 51] is aired:

a decision can often survive despite the existence of an error in the reasoning advanced to support it. For example, sometimes the error is irrelevant to the outcome; sometimes it is too trivial (objectively, or in the eyes of the decision-maker) to effect the outcome; sometimes it is obvious from the rest of the reasoning, read as a whole, that the decision would have been the same notwithstanding the error; sometimes there is more than one reason for the conclusion, and the error only undermines one of the reasons; sometimes, the decision is the only one which could rationally have been reached. In all such cases, the error should not (save, perhaps, in wholly exceptional circumstances) justify the decision being quashed.

Sir Stephen Sedley is, however, distinctly unhappy with this line of authority. He notes that in the bare wording of Regulation 8(2), “the phrase “deficiency or irregularity” is not qualified by any adjective such as “material” or “significant””. Accordingly,

If this regulation were unglossed by authority, I would have thought that, beyond the ubiquitous de minimis principle which shuts out trivial or marginal criticisms, the omission of any qualifying adjective is deliberate. It would mean that, while it remains open to the reviewer to find that a deficiency or irregularity was not such as to affect the decision, he or she can only do this after giving a “minded to” notice and considering the applicant’s response.

Noting his own insistence on the ‘elementary principle’ of hearing both sides in Home Secretary v AF [2008] EWCA Civ 1148, Sir Stephen Sedley goes on to note

It needs also to be borne in mind – and the drafter of the regulations will have had well in mind – that many applicants lack advice or representation, and that of these a good many will have poor literacy and language skills. It is unfair and unrealistic to expect every material error to be picked up by such applicants, and both fair and realistic to expect the reviewer to be alert to possible deficiencies and willing to hear what the applicant says about them before deciding whether they are material.
It would follow that what the reviewer (whose appointment makes the local authority judge in its own cause) considers to be the case cannot lawfully be arrived at by assuming that there can be no answer: the regulation, reflecting elementary justice, would forbid this.

But the body of case law has taken a different path and effectively inserted the words ‘affecting the fairness of the procedure’ after ‘deficiency or irregularity’ in the Regulation.

It was now clear that no harm had resulted to Ms I in the end from the deficiency – the double error –  in the s.184 decision letter, and that the decision to treat her as intentionally homeless would have been the same even if representations had been made on the technical deficiency of the letter. That didn’t mean that the ‘double error’ was not a deficiency – Sir Stephen Sedley would consider it to be one, “since it went to the heart of the council’s obligations and the applicant’s entitlements.”

But, as the Court’s powers were effectively those of Judicial Review, the principle of causation in Judicial Review applied.

In my judgment the failure of the reviewer to identify and address the deficiency in the original decision was, in the events which have happened, irrelevant to the outcome of the review, since that outcome, given the (now unappealed) finding of intentional homelessness, corresponded both in writing and in actuality with the council’s true statutory duties.

It follows that the judge was right to “think fit” – in other words to choose – to confirm the review decision in relation to the patent errors in the decision letter. We are not called upon to decide whether she was also right to confirm it on the remaining issues canvassed before her.

That said

Both the decision letter and the review letter are disturbing instances of poor public administration, the former for completely overlooking the duty to provide temporary accommodation for intentionally homeless persons in priority need, the latter for completely overlooking the oversight. Given the kind of clientele typically involved, I do not accept that such an obvious point had to be explicitly taken in order to be addressed by the reviewer.

Appeal dismissed, albeit clearly reluctantly.

On the other hand, Etherton LJ took a view in line with the authorities mentioned by Sir Stephen Sedley.

First, it is necessary to consider whether the deficiency or irregularity relied upon as falling within Regulation 8(2) was one which related to a relevant decision. A relevant decision is one which was adverse to the applicant and which the applicant wished to challenge by way of review. Secondly, if there was such a deficiency or irregularity, the reviewer was obliged to consider whether the deficiency or irregularity was of sufficient importance to engage the duty of the reviewer to notify the applicant as provided in Regulation 8(2)(a) and (b). Thirdly, if the reviewer failed to carry out that exercise, or decided that the deficiency or irregularity was of insufficient importance to engage that duty, then that failure or that decision was only challengeable by way of an appeal under section 204 on judicial review principles.

There were two decision made in the s.184 letter. Firstly that Ms I was intentionally homeless. Then secondly that the Council’s duty was ‘limited to providing advice and appropriate assistance to enable her to find her own accommodation’. The deficiency relied on was only to the second decision.

While that decision was certainly wrong, it

was not a relevant decision for the purposes of Regulation 8(2) since (1) it was not the subject of any complaint by the applicant about the decision letter on the review; (2) it was not a decision which the reviewer upheld; and (3) the reviewer did not make any decision on the same matter against the interest of the applicant, but, on the contrary, stated the council’s duty correctly. Accordingly, Regulation 8(2) was not engaged, and that is the end of this appeal.

Even if this were not the case, the appeal would fail on the second stage. While the review officer had failed to take any account of the deficiency, and the reviewer should have done so, there was no requirement to issue a ‘minded to’ notice under Reg 8(2) as

In the present case, however, the only conclusion which the reviewer could properly have reached was that the deficiency in the decision letter in the incorrect statement of the council’s duty to the applicant under section 190(2) was entirely unimportant since (1) it was not the subject of any complaint by the applicant about the decision letter on the review; (2) it was irrelevant to the decision about which the applicant was complaining (viz that the council owed the applicant no duty under section 193(2)), (3) the council was in fact continuing to house the applicant, and (4) the reviewer could (and did) make clear in the review letter the proper duty of the council under section 190(2)(a). Accordingly, even if the reviewer had identified the deficiency relied upon on this appeal, she would have been bound to conclude that there was no requirement to serve a “minded to” notice under Regulation 8(2), and there would have been no scope for challenging the review letter under section 204.

Appeal dismissed

Mummery LJ, helpfully, agrees with both Sir Stephen Sedley and Etherton LJ. There was a deficiency in the s.184 decision, and the review decision failed to pick up that deficiency and address it. However, as per Etherton LJ, “The applicant did not complain on the review about Wandworth’s decision not to inform her of their obligation. The reviewer did not uphold that decision of Wandsworth. By stating Wandsworth’s obligation correctly in the review letter of 9 June 2011 the reviewer made no decision against the applicant of which she was entitled to complain.”

Appeal dismissed.

Comment

This is a highly frustrating decision. It is true that even if Sir Stephen Sedley’s view had prevailed, all that would have resulted was a quashing of the decision and a ‘minded to’ notice highlighting the defect in the s.184 on the Council’s duties and correcting it. However, the reasons given by Etherton LJ and presumably Mummery LJ for dismissing the appeal have, in part, to be wrong.

As Sir Stephen Sedley says, it is not for the applicant to raise a deficiency in a s.184 decision before the review officer has to deal with it. Points (1) and (2) in both the sets of reasons given by Etherton LJ are wholly reliant on the applicant complaining about the deficiency. But this cannot be right. Reg 8(2) puts the onus squarely on the reviewer identifying a deficiency. While this may well be on representations made by the applicant, it is not and cannot be conditional on such representations. Sir Stephen Sedley at 20 and 21 must surely be right on this:

20. It needs also to be borne in mind – and the drafter of the regulations will have had well in mind – that many applicants lack advice or representation, and that of these a good many will have poor literacy and language skills. It is unfair and unrealistic to expect every material error to be picked up by such applicants, and both fair and realistic to expect the reviewer to be alert to possible deficiencies and willing to hear what the applicant says about them before deciding whether they are material.

21. It would follow that what the reviewer (whose appointment makes the local authority judge in its own cause) considers to be the case cannot lawfully be arrived at by assuming that there can be no answer: the regulation, reflecting elementary justice, would forbid this.

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Posted in FLW case note, Homeless, Housing law - All and tagged .

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +

2 Comments

  1. Pingback: When a deficiency makes no difference – NearlyLegal | Current Awareness

  2. NL – I agree with you.

    None the less my view is that one can hardly be surprised of the outcome and cases like these should serve as warnings to the dangers of taking bad cases to the Court of Appeal; the poorer the facts the more likely you are to end up with bad law.

    The instinctive reaction of any lawyer reading the headnote for this case would be surely: Parliament could not have intended this deficiency to lead to the whole decision being quashed, when the deficiency identified was wholly irrelevant to the part of the decision actually being challenged (i.e. she was IH adn not entitled to accommodation under s.193(2)).

    Likewise, any judge hearing this was going to ensure the decision was not quashed whatever the consequences. Sedley did his best, but most CA judges don’t have the same care or awareness of housing law as he does.

    A member of my Chambers once told me something his pupil master once told him: “if you are going to be shite; you had better be right” because if you give the court any way of finding against you they will.

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