19/06/2008

Deficiency in a decision

London Borough of Lambeth v Johnston [2008] EWCA Civ 690 is an appeal to the Court of Appeal from a County Court s.204 appeal.

The brief facts – the Claimant applied to Lambeth as homeless in September 2004. He told the officer he had an alcohol problem Lambeth put him into temporary accommodation. In September 2005, with no further interview or enquiries, Lambeth made a s.184 decision that he was not vulnerable.

At s.202, this was upheld, despite new evidence from the Claimant’s drug dependency agency that he was Class A dependant and alcoholic. He was now on a treatment programme but in a vulnerable condition. There was also evidence from his GP to the same effect. The s.202 said not vulnerable, , based on a Nowmedical opinion on drug and alcohol abuse.

At the first s.204 appeal, the Court held that the s.202 was inadequate in its response to the material available, over-reliant on the Nowmedical opinion, and Wednesbury unreasonable. However, the Court also said that even if this was not so, the failure to conduct furthe enquiries or a fresh interview during the year before the s.184 decision would mean that there was a serious procedural irregularity in the decision. This should have been obvious to the reviewer, triggering regulation 8(2) of The Allocation of Housing and Homelessness (Review Procedures) Regulations 1999:

(2) If the reviewer considers that there is a deficiency or irregularity in the original decision, or in the manner in which it was made, but is minded nonetheless to make a decision which is against the interests of the applicant on one or more issues, the reviewer shall notify the applicant –

(a) that the reviewer is so minded and the reasons why; and

(b) that the applicant, or someone acting on his behalf, may make representations to the reviewer orally or in writing or both orally and in writing.

The reviewer had failed to do this. The matter was remitted for a fresh s.202.

The new s.202 also concluded that the Claimant was not vulnerable. There was no notification that the reviewer was minded to make a decision against the applicant.

The Claimant went to s.204 appeal on, in part, the grounds that Lambeth were in breach of Reg 8(2) in failing to notify of being minded to find adversely despite the clear deficiency in the s.184 process. The Court agreed and upheld the appeal, with costs. Lambeth appealed to the Court of Appeal.

Lambeth argued that

  • Given the facts and history of this case, all parties were well aware of the specific issues under consideration in the s.202 and that a Reg 8(2) noification would have served no purpose.
  • The review officer had considered the deficiency – which had in any case been raised at the first appeal – and, after talking to Lambeth Legal, decided that in the circumstances, it wasn’t necessary to send a notification.

The Court agreed that in the specific circumstances of this case, the notificiation may have made little or no practical difference, but that was beside the point. Accepting the Claimant’s arguments, the Court found that Reg 8(2) was not an option, or dependent on the review officer’s view on its practical benefit to the applicant. It was a duty imposed by the terms of the regulation if there was an apparent deficiency or irregularity in the s.184 decision – either in the process of making it or in the decision itself.

The Court’s statement on the importance of the regulation is worth noting.

53. It is one thing for an applicant to be able to make representations on the matters in issue and then apprehensively await the review officer’s decision, whichever way it may go. It is quite another for an applicant, not just to be able to make such representations, but then also to be given (i) advance notice of the review officer’s reasons for his provisionally adverse views, and (ii) the opportunity not just to make further written representations as to why those views are not justified by his reasons, but also oral representations to that effect. Previously the applicant will simply have addressed the issues as best he can. Now he will have the opportunity to respond specifically to the review officer’s own reasons as to how he proposes to deal with the issues. That is a most important advantage to the applicant. It may well, in many cases, enable him to engage in no more than an exercise of advocacy. But advocacy can turn a case. There can be few judges who, having formed a provisionally adverse view on a skeleton argument advanced in support of a case, have not then found their view transformed by the subsequent oral argument for which, in the art of advocacy, there is no comparable substitute. The opportunity open to an applicant to try, by written and/or oral argument, to persuade the review officer that his reasoning for his provisional conclusion is mistaken is – at the very least – potentially of great benefit to an applicant. To be deprived of that right is or may be seriously prejudicial.

The Court upheld the s.204 appeal finding that the failure to consider that this was a case where Reg 8(2) was engaged was indefensible and unlawful. Hall v. Wandsworth London Borough Council [2005] 2 All ER 192 followed.

Failure by the review officer to adequately consider, in an objective manner, whether a s.184 decision is deficient or irregular in content or process is susceptible to judicial review principles (Wednesbury unreasonableness) and therefore also to s.204 appeal.

[Many thanks to a reader and commentor here for sending his own report, which was useful for me, but alas, for reasons of employment related discretion, it couldn’t be posted. But guest posts/case notes isn’t a bad idea…]

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.

4 Comments

  1. the chief

    I knew you would come up with something comprehensive, so I nipped in with the twitter precis as soon as I saw it was up on BAILII :-). Nice to see that old chestnut – over-reliance on a Nowmedical report for priority need assessment – cropping up again.

    Reply
  2. Richard

    This is surely a welcome judgment, if only to reinforce for local authorities the requirement to adhere to the regulations.

    I have come across many many examples of councils failing to issue minded letters and invite oral representations, where it is abundantly clear the original decision was deficient. I’ve gained the impression from several authorities that many officers conducting reviews haven’t actually read the regulations, don’t appreciate they are law (as opposed to guidance), or otherwise have not appreciated the low threshold for ‘deficiency or irregularity’ as outlined in Hall.

    Issuing a minded letter is certainly an additional burden. But I’ve never really understood why there might be any reticence in inviting oral submissions. After all, there’s no obligation to arrange a hearing. You only have to indicate that oral submissions can be made. Many applicants won’t take up the offer anyway.

    Whilst not material to the judgment, I also notice with interest that Lambeth failed to notify Johnston of the procedure that would be followed on review. Again, my experience suggests this is widespread practice among certain authorities.

    If I was an officer conducting reviews I’d ensure I stick to the letter of the regs, as otherwise you’re surely inviting an appeal.

    Reply
  3. Nearly Legal

    @the chief. Grins. I wasn’t really being that precious on Twitter. On the basis of the judgment, it does look like two quite atrocious reports from NowMedical, actually commented on by the lower courts as nearing a ruling out drug use as a vulnerability issue tout court, which actually they did.

    @Richard. The backstory given in the judgment reveals a pretty poor pattern of behaviour by Lambeth generally, albeit not uncommon. I’d recommend it to anyone who wants to see what a homeless application can actually entail.

    Reply
  4. housinganger

    One wonders if Local Authorities think that if they consistently do the wrong thing that somehow that will make them acceptable.

    What annoys me the most as a taxpayer is that I paid £30 + VAT to Nowmedical for the utterly useless and non sensical advice provided by Dr Singh of Nowmedical.

    Perhaps Dr Singh didn’t get as far as ‘addictive’ in his A – Z of medical terms and is only actually qualified to give advice about conditions caught from aardvarks.

    I bet depression is a condition of choice for him to. Probably dying as well.

    Reply

Leave a Reply (We can't offer advice on individual issues)

This site uses Akismet to reduce spam. Learn how your comment data is processed.