Don’t answer the phone…

[Update 03/04/2011 – the Court of Appeal decision on the further appeal in this case is here.]

Makisi v Birmingham City Council (Birmingham County Court Appeal Ref: BM9 0166A, 6 Jan 2010)

This was the County Court hearing of a s.204 Housing Act 1996 appeal following s.202 review of a decision that an offer of accommodation was suitable and reasonable to accept, and subsequent discharge of duty under s.193. It is only a County Court appeal decision, but there are some interesting points on the review process worth noting.

Ms Makisi had applied as homeless, with her three young children. Birmingham had accepted the full Housing Act 1996 duty. The property, a three bed property, was agreed to be suitable in itself, but Ms Makisi requested a review of the decision on the basis of the distance from her 6 yo son’s school, about 2 miles, which would mean a bus trip and a walk at either end. It was important that her son remain at that school as he has autistic spectrum disorder which affects his comprehension, ability to communicate and to relate to others, attention and cognition. There were extensive special needs statements and reports, which were before the reviewing officer. Ms Makasi’s objection to the property was that she wold have to take her son (and with her the two infant children) to the school on the bus and the walk each morning and back each afternoon. Her son’s behavioural difficulties made that journey potentially dangerous, both for her son and others on the bus, in various ways, making the location of the property unsuitable and not reasonable as permanent accommodation for her.

Ms Makasi accepted the property, but then requested a review. The submission set out the problems faced in relation to her son and the dangers to her son and others. After a few weeks and a further letter of submissions, the reviewing officer called Ms Makisi and the same day sent a ‘minded to’ letter, giving an ‘opportunity to respond to issues which I am minded to hold against you’. This stated that:

Your case has been rebooked to be heard on 23 July 2009. If any further information in response to this decision which you would like to be taken into account, you or someone acting on your behalf may make oral representations, further written representations or both oral and written representations.

Ms Makisi’s solicitors wrote stating that Ms Makisi wished to make oral representations in addition to those in writing, ‘in line with the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999’ and asking for a time and date for a meeting.

On 27 July, the Reviewing Officer telephoned Ms Makisi. In what the Reviewing Officer later referred to as ‘a conversation’, it appears that Ms Makisi made statements about the dangers presented by travelling with her son and the Reviewing Officer put questions to her. There was no further evidence about this call. There was no evidence from the Reviewing Officer and Ms Makisi’s statement said simply ‘Through my solicitors I requested a meeting with Birmingham City Council by letter on 21 July 2009. I was advised by telephone by the Council that they do not need to see me in person.’

Ms Makisi’s solicitors sent a further letter requesting an appointment and enclosing some further reports on the son. The Council did not respond but on 14 August sent the review decision, which upheld the suitability of the offer.

On appeal, Ms Makisi argued that:
1. The respondent erred in law in that it failed to take into account the particular difficulties the appellant faced in travelling with her son.
2. The respondent erred in law by taking into an account an irrelevant consideration that the appellant might otherwise use public transport for other purposes, when those journeys might well not be when her son was with her.
3. The respondent erred in law in failing to engage with or address the practical difficulties that the appellant has in alighting from a bus with two other small children as well as her son who is at risk of running off and taking into account irrelevant considerations namely how parents of children without autistic spectrum disorder alight from a bus.
4. The respondent erred in law in failing to apply the test set out in Slater v Lewisham as to the distinct approach to be adopted in considering whether or not the accommodation is reasonable to accept and in substance decided the accommodation was suitable and ergo it was accordingly reasonable to accept.
5. The respondent erred in law in refusing to give the appellant an opportunity to be heard at an oral hearing and in treating her request for the right to make representations orally as discharged by having a telephone call with her.

Grounds 1 to 4 were dealt with fairly quickly. Taking a ‘realistic and practical’ approach to the review decision letter which was to be read as a whole, the reviewer had addressed herself to ‘the challenging nature of the journey, to the fact that the son’s behaviour would be difficult wherever and whenever the appellant attempted to travel with him – which she was entitled to take into account. While Ms Makisi’s difficulties were no doubt very real, it could not be said that the reviewing officer had failed to engage with them in any meaningful way. Matters of fact were for the Council and the margin of appreciation was wide. The letter may have contained stock phrases, but, taken as a whole, had grappled with the issue of whether it would be reasonable for Ms Makisi to accept the accommodation without wholly running together suitability and reasonableness.

Ground 5 underwent rather greater consideration.

The issue was whether the reference to ‘representations […] orally or in writing or both orally and in writing’ in Regulation 8(2) Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 was a) engaged, and if so b) meant in person.

Birmingham argued that the ‘minded to’ letter of 15 July 2009 did not raise a ‘deficiency or irregularity in the original decision or the manner in which it was made’, or mention Regulation 8. The obligation only arises if the reviewing officer considers that there are irregularities or deficiencies in the original decision. This was simply volunteering an opportunity for further submission.

Ms Makisi argued that the decision letter of 7 April 2009 was a bare statement of the statutory test and not a statement of reasons, as required, it was thereby defective and Reg 8 was engaged. The Court agreed with this submission. Further, the Reg 8(2) obligations were mandatory. The letter sent mirrored the Reg 8 requirements, even if it wasn’t mentioned. The clear inference on the available evidence was that it was written to satisfy the duty.

The choice as to how to make representations was tentatively found to be the Applicant’s. Why should the Council have the power to limit the way in which the representation is made?

On what constitutes an oral representation, Ms Makisi argued that ‘orally’ meant face to face or at a hearing. Birmingham argued it could be a telephone call.

Lambeth LBC v Johnston [2008] EWCA Civ 690 (our report here) was concerned with the right to make representations rather than the manner in which they were made, but Rimer LJ in that case expressly compared oral representation to oral advocacy and argument in Court. Ms Makisi argued that a telephone call did not give this opportunity. The telephone call was without notice and may have caught Ms Makisi unprepared (although this point was not made in her witness statement) and apparently consisted of the Reviewing Officer asking questions.

As to the sufficiency of the telephone call for Ms Makisi to make her case, this was a matter of fact and there was insufficient evidence to decide it, but the interpretation of the regulations was a significant issue.

Ms Makisi argued that the heading of paragraph 19.12 of the Homelessness Code of Guidance for Local Authorities of July 2006 was ‘Oral hearings’ – the Court observed that the text was the same as Reg 8 and only mentioned ‘representations’.

S.203(2)(b) Housing Act 1996 enabled the Secretary of State to make provision by regulation ‘as to the circumstances in which the applicant is entitled to an oral hearing, and whether and by whom he may be represented at such a hearing’. However, Reg 8 provides for written and oral representations, neither of which are provided for in these terms by s.203(2).

The Court held that the Regulation must be construed by considering the ordinary and natural meaning of the terms in the context of their purpose and the enabling powers. There was no express provision made for a hearing, despite s.203(2). There is a real distinction between oral representations and oral hearings, as oral representations may be made in other ways.

The other review provisions under the 1996 Act – in relation to introductory and demoted tenancies – both have similar enabling provisions to s.203(2), referring to oral hearings. In the subsequent regulations (Introductory Tenants (Review) Regulations 1997) the regulations provide for an oral hearing, unlike Reg 8. Similarly, the Demoted Tenancies (Review of Decisions)(England) Regulations 2004, Regulation 4 sets out the ‘right to an oral hearing’. So, while the Secretary of State had the power under s.203(2) to make regulations providing expressly for an oral hearing, and had done so in these other regulations, there was no such express provision in Reg 8.

Although troubled by this, as a telephone call does not afford the same opportunities for advocacy as a hearing, the Court found that a telephone call could be sufficient for oral representations under Reg. 8.

Appeal dismissed.

A difficult point and the finding perhaps goes against the tenor, if not the letter, of the judgment in Lambeth LBC v Johnston. Is there a second appeal in the offing?

From Ms Makisi, CLP and James Stark, for Birmingham CC, Emily Orme

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 +.
Posted in Homeless, Housing law - All and tagged , , .

19 Comments

  1. Only a quick typo post but you put full section 183 in the post. Only a rather trivial thing really, bit of a harsh decision!

  2. The D/deaf point (D/deaf being all forms of deafness)does have interest (and distinction?) for the ordinary meaning of an oral hearing and oral representation. The comment was not simply a flippant one.

    • JH – it is a fair point and i didn’t think you meant it flippantly. Oral representations are not obligatory – it is at the request of the applicant – but I could understand how some D/deaf people would certainly want face to face, even if a telephone call was possible. But arguably a failure to provide the chance for an oral hearing in that situation would be a failure to make reasonable adjustment and fall foul of the DDA, giving another ground of challenge.

  3. Regulation 8 already provides that oral (and/or written) representations can be made by someone acting on behalf of the applicant. In circumstances where an applicant had a disability, surely that would be the answer rather than having to rely on the DDA? In any event, the use of a representative (whether it be a legal representative or some other person) would presumably amount to a reasonable adjustment.

    • That is assuming that a) they have someone else acting on their behalf and b) when Birmingham call them that the person acting is in a position to take instruction.

      In my view – doesn’t work except in certain clearly delimited circumstances and would certainly require the applicant to agree that a telephone call to the person acting for them would be acceptable. Surely can’t be the basis for a general disregard of DDA requirements. Hell, I’d run it.

  4. Given the nature of communication need with a deaf person should not the council (or homeless dept) provide an interpreter? If they dont provide one are they in breach of DDA and homeless legislation?

  5. Makisi and two other linked appeals also involving Birmingham and another appeal on another issue – is listed next Monday and Tuesday before LJJs Maurice Kay, Etherton and Rimer.

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