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.)