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Homeless review, Reg 8(2) and changed facts


Reg 8(2) of the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 provides that if a reviewing officer on s.202 review considers:

that there is deficiency or irregularity in the original [s.184] decision, or 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 reviewing officer 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.

So what happens when a situation has changed between s.184 and s.202? Is Reg 8(2) triggered if the s.202 review is to find against the applicant on different grounds to the s.184?

Banks v Royal Borough of Kingston upon Thames [2008] EWCA Civ 1443 was an appeal from a s.204 County Court appeal. Not including the issues of vulnerability and medical evidence, which are by the by to the appeal decision, the facts were, briefly, that Mr Banks had made a homeless application, which was turned down as not being in priority need. Mr Banks then moved in to a room in an HMO. He made a further homeless application, as the room with shared facilities was not suitable for either his health condition or for seeing his son during his residence periods, as his son was not permitted to stay. Kingston issued a s.184 that Mr Banks ws not homeless. Mr Banks requested a review. In the meantime, his landlord served an NTQ with one month’s notice.

Kingston’s review officer decided that Mr Banks was now homeless, but not in priority need. No notice was provided to Mr Banks of the review officer’s intention or the change of reasons. Mr Banks appealed on grounds that 1) reg 8(2) was engaged and the LA had failed to follow it, 2) if not, then natural justice meant that Mr Banks should have had the opportunity to make representations on the ‘new’ ground of decision, and 3) the Council had failed to make adequate medical enquiries. At County Court, Mr banks failed on all grounds. The Circuit Judge found that Reg 8(2) was not engaged. The s.184 decision was not irregular or deficient at the time it was made.

Mr Banks, with the aid of the Kingston and Richmond Law Centre, appealed to the Court of Appeal, on the same grounds.

The Court of Appeal held unanimously that the procedural safeguards in the 1999 regs were of the highest importance and any departure from them would be a ground of appeal. The purpose of the ‘minded-to’ notice is to give the applicant an opportunity to try to persuade the reviewer that his reasoning is mistaken. It is potentially of great benefit to the applicant.

While a literal interpretation would suggest that the relevant date for considering a putative deficiency was the date of the s.184 decision, the function of the regulation is to give the opportunity to make representations on a specific point. A purposive interpretation should be adopted. So, although the original decision cannot be faulted, it came to have a deficiency of sufficient importance to trigger Reg 8(2), in the sense that further representations made in response could have made a difference to the reviewing officer’s decision. Appeal allowed on the first ground. The second ground falls away and the medical issues would be the subject of further factual enquiry by the LA.

The Court also expressed disappointment that the appeals had had to be made. Mr Banks should, of course, have been able to make a fresh homeless application once he had received the NTQ, thus avoiding the s.202 review and reg 8(2) issue, but this had not happened.

In my view, this is a point worth having clarified in any case. In the unstable and shifting situations of many homeless applicants, changes in the facts between s.184 and s.202 are not uncommon.

The judgment also offers, for those newish to homeless statute and case law, a remarkably clear overview of the application process, with key cases. Worth a read, for those looking for a primer

(My thanks to Jo.)

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.


  1. Mark

    NL, I’m confused by the comment at para 74 of the judgment, namely that “by virtue of the change in his position after he had been given notice to quit and had left his home, the right to make a fresh application” arose”. Surely it is settled that such changes in circumstances can be dealt with on review?

    Having said that, the purposive approach to the Review Regulations is certainly an interesting development, and one that shall no doubt be welcomed by applicants, many of whom all too often have their applications dealt with by authorities that pay scant regard to the mandatory requirements of the regs.

    On first reading I must admit to also being confused as to why it was necessary for the Court of Appeal to adopt such an approach on the facts. The requirement to comply with the principles of natural justice had presumably been breached in any event by virtue of the authority not giving the applicant an opportunity to comment before proceeding to make an adverse review decision based on non-priority need, overturning the ’not homeless’ s.184 finding.

    I find it interesting but unfortunate that in his summary of Part 7 Collins LJ adopts, at para 33, Crawley BC v B as authority for it not being necessary, i.e. irrational “for an authority to decide not to consider whether an applicant is intentionally homeless when it decides that he does not have a priority need” it being “open to an authority to conserve resources by not embarking on an inquiry that would be redundant.”

    I don’t have the B judgment to hand, but wasn’t this obiter? It seems to me this was an ideal opportunity for the Court of Appeal to confirm that, given the amendment to section 192 by the Homelessness Act whereby authorities have a power to secure accommodation for those unintentionally homeless but not in priority need, a failure to consider the power constitutes a deficiency within the meaning of the regulations. This surely falls within the ‘something lacking’ Hall definition.

    • Nearly Legal

      Mark, I think the fresh application point was not that it was obligatory to follow either the fresh application or review routes, but that, if a fresh application had taken place in this case, the issue on appeal would not have arisen.

      Natural justice was ground 2 of the appeal. The CoA found it uneccessary to rule on this, given its finding on Reg 8(2).

      Good point on Crawley v B & s.192. That is indeed an unfortunate comment by Collins LJ.

  2. The Dark One

    I’m amazed at how poor this judgement is in terms of its decision on when Reg 8 (2) is engaged when the original decision was not flawed but events have happened since to change things. To interpret the regulations one way when the wording is perfectly clearly pointing another way beggars belief. There is no discussion of or even mention of Jones v Richmond upon Thames LBC [2005] or Williams v Oxford City Council [2006] which go the way of the County Court judge. Even Luba & Davies (page 565 of their book) agree with the view taken by the County Court judge and that is saying something when it goes in favour of a LA!!
    What the judge could have easily (and correctly) done is dismissed the first ground but held that for sake of procedural fairness in a public law principle sense, that the applicant should have had advanced notice that they were looking at the decision they were, but not that it constitutes a formal Reg 8 (2) situation. Although one could argue that this is just doing the same thing but under a different tag, it can have important differences if the case gets to court. Terrible decision, terribly justified.

  3. Mrnumbermaker

    I have been handling reviews this way for some time now for this very reason, having been forewarned by legal representative that this was challangable. I know there are many gatekeeping authorities who take great pleasure in finding against the applicant who are frantically worrying about this judgement. I can already see more decisions on the day of presentation and an increase in refusals to take applications. The authorities who serve the best interest of the applicant don’t seem to be unduly worried about this judgement though, which is a story in itself.

  4. ben

    I think it was in Crawley v B that it was confirmed that an authority can lawfully ‘stage’ its decision making process – so that it can limit its inquiries and its decision to the relevant questions. So if it finds a person ineligible (for example) it need not go on to determine homelessness, priority need etc. But that principle should only apply to situations where a failure to deal with the relevant issue can have no effect on the nature of what if any duties might be owed or powers exerciseable.

    It is very common in my experience for authorities to stop at an adverse decision on priority need. Doing so ought to provide a ground of appeal because there is – of course – no guarantee that the authority would not exercise its statutory power to provide accommodation to an unintentionally homeless person not in priority need. Though I’d be interested to hear from anyone who’s ever actually persuaded one to do so…

    One obvious consequence of an authority leaving (say) intentionality inquiries to the review stage (aside from anything else) is that the Reg 8(2) procedure would have to be invoked, thereby guaranteeing a oral hearing if the applicant wanted one.

    • NL

      Thanks, Ben. Useful comment. Agreed that Reg 8(2) would have to come in to play where a nonpriority 184 was reversed at 202 review, but they were minded to find intentionality. I would also have thought further enquiries would be required.

  5. shelter666

    Hello NL, wondering if you could help me please?

    Have been looking at this case, and am wondering if I could use it to my advantage at all? I’m studying law (specifically housing law), and help out at my local branch of Shelter Aid to gain experience.

    One of our homeless clients has got an ongoing s202 review, of a decision where the local authority have discharged their duty to him, after refusing an offer.

    They have sent us a copy of their “minded” letter outlining the reasons for upholding the decision to discharge duty. We’ve got about 2 weeks to submit grounds, but am not sure we have much to go on, as the letter and investigations are pretty thorough. Our client accepts this, and has started looking for other accommodation, but could I use the Reg 8(2) in any way to add force to our case?

    The local authority have offered us the chance to make written, oral or both types of representations before their deadline, but can I insist on attending any hearing? Or our client to attend any hearing? Or to invite them, or insist on them coming to our offices? Trouble is, they’ve spoken to me, and the client on the phone, and from what I read, they are under no obligation to allow an in-person hearing?

    Just wondering, and would be grateful for any advice, any case law, anything you can provide!

    Many thanks,

    • NL

      John – you’re at Shelter, ask a Shelter solicitor or your case holder, who’ll be much better placed to advise with the file in front of them. You’re a student volunteer, nobody will hold it against you ;-)

      I’m not going to offer a view, because I can’t even tell from what you’ve said whether Reg 8(2) applies or not, I’m afraid.

      • NL

        John, Some things about your comment kept bugging me, like why a Shelter worker wouldn’t have discussed the issue with their caseworker, or Shelter legal. The way you talked about the case also didn’t sound quite right, nor did your approach to making representations, at least for someone at Shelter. So, because this was nagging at me, I did a quick check on the IP address that you posted from (something I do rarely).

        Well, well well – Birmingham City Council. So, whoever you are, it isn’t a law student and Shelter worker. Given your question, I’m guessing you are connected with the HPU. If so, that suddenly makes sense of the way you talked about the case.

        Very, very shoddy, John. We are happy for people to comment with real name, pseudonymously, or anonymously, but we aren’t keen on outright misrepresentation. I doubt very much that Shelter will be happy with you either. And if this is a case you are actually dealing with, I’ll leave readers to draw their own conclusions about your professionalism in masquerading as a Shelter worker to try to get legal advice.

  6. HJ

    A Birmingham Council officer lying about being from Shelter to get free legal advice?! I know the homeless unit has a well earned reputation for crapness (routine gatekeeping, backlogs and delays, the most slipshod decision letters going, to give just a few of the issues I regularly come across) but surely this takes the biscuit! If s/he doesn’t know whether they have to provide a hearing why aren’t they asking their legal department?

    Good detective work NL. And yes, I’m sure Shelter workers would be insulted at any suggestion they wouldn’t know this, lol.

  7. house

    (routine gatekeeping, backlogs and delays, the most slipshod decision letters going, to give just a few of the issues I regularly come across)

    Are these LA’s usually given a government homeless prevention champion award?



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