Bury Metropolitan Borough Council v Gibbons [2010] EWCA Civ 327

This was the Court of Appeal judgment on a second appeal from a s.204 Housing Act 1996 appeal in the County Court. At issue were the Circuit Judge’s findings that Bury had:
a) failed to give advice to Mr Gibbon on first application as homeless as required by para 2.12 of the Homeless Code of Guidance for Local Authorities
b) should have addressed this failure in their s.202 review, but failed to do so
c) failed to address an error in the s.184 decision as to the level of savings held by Mr Gibbon in the s.202 review
d) failed to hold an oral hearing which Mr Gibbon’s legal representatives could attend, as required by Regulation 8(2) of the Allocation of Housing and Homelessness (Review Procedure) Regulations 1999

Bury appealed.

Brief facts… Following some personal difficulties, Mr G sold his house in November 2007, receiving some £23,000 over the mortgage, and he and his daughter moved to private rented accommodation. His personal difficulties continued. He was largely unemployed but not claiming housing benefit or any benefit, and was drinking heavily. By June 2008, he was in rent arrears and was given 2 months notice. A further letter told him to leave by 27 September 2008. Mr G did not know he was entitled to remain until a possession order was made. He approached Bury on 9 September 2008 and made a housing application for himself and his daughter, stating on the form and in person that he was to be imminently homeless. Bury did nothing at all at this point.

Mr G and daughter moved into a caravan on 17 September 2008. he went back to Bury on 26 September and told them he was homeless. Bury didn’t believe his daughter was living with him, and sent him away as not being in priority need (apparently without s.184 decision being made).

In December 2008, Mr G again approached Bury as homeless and told them he was being kicked out of the caravan. This time Bury accommodated him and his daughter while making enquiries. The s.184 decision in December 2008 was that he was intentionally homeless because he had left due to rent arrears while having £7,048.72 in savings (This was not the case.)

On review, with Bury Law Centre representing him, Mr G had a meeting with the review officer on 20 march 2009. On 31 March, the review officer wrote a ‘minded to’ letter stating that she was minded to find Mr G intentionally homeless due to non-payment of rent, frivolously spending his capital from the sale of his house and voluntarily leaving the rented accommodation. On 2 April, Bury Law Centre asked for an extension of time to 9 April for a response to this letter. On 8 April, Bury Law Centre sent a further letter asking for a meeting between the review officer, themselves and Mr G to make representations. By co-incidence, Mr G was in the Council offices that day, talking to a different officer. Mr G said in that conversation that ‘he had nothing to add’ to the minded to letter.

Bury granted an extension of time to 15 April, but no meeting took place or was arranged by the review officer. On 16 April, Bury confirmed the decision of intentional homelessness as in the minded to letter.

On s.204 appeal to the County Court, the judge ordered a fresh decision, as set out above. Bury appealed.

Bury argued that:
i) the application of 9 September 2008 did not trigger their Part 7 Housing Act 1996 obligations
ii) It was not important that the reviewing officer had failed to address whether Mr G was or could have claimed housing benefit and di not address whether his failure to do so was an act or omission in good faith or ignorance under section 191(2) and anyway Mr G had not acted in good faith.
iii) There was no requirement for an oral hearing as regulation 8(2) was not engaged and even if it was, there was no requirement for a full oral hearing as opposed to by telephone.
iv) There was no legitimate expectation of a full oral hearing arising.

The Court of Appeal held:

On i) the Council had failed to provide any assistance or guidance to Mr G when he first approached in September 2008. Advice on housing benefit may have been crucial.

If a person informs the local housing department that he is threatened with homelessness because he has received notice to quit for non-payment of rent, and if the Council does not give appropriate advice, it cannot automatically be assumed that this does not matter. In the present case, the Council’s omissions at a crucial time, namely when Mr Gibbons was about to move out of 5 Park View Court and become homeless, were relevant to the question whether Mr Gibbons became homeless intentionally. This was a matter of substance which, in accordance with the guidance in Holmes-Moorhouse at paragraphs 49 to 51, the reviewing officer should have taken into account.

On ii) this was not crucial to the outcome below, however, the judge was right to find that the reviewing officer should have taken into account that Mr G was not provided with advice in September 2008 on housing benefit.

on iii) the s.184 finding that Mr G had £7,000 savings was wrong. The reviewing officer had come to the conclusion that it was wrong in the course of the review and her decision was based on a different factual basis. Following Carnwarth LJ in Hall v Wandsworth LBC, Carter v Wandsworth LBC [2004] EWCA Civ 1740 at 29 and 30:

Where the reviewer rejects the factual basis of the original decision and proposes to substitute a different factual basis leading to the same conclusion, it seems to me that the review has identified a “deficiency” within the meaning of regulation 8(2).

While there may be some circumstances in which a telephone call would suffice for Regulation 8(2) oral representations, that would not suffice in this case. “It was clear that without legal assistance Mr Gibbons did not have the ability to make any relevant submissions or comments concerning the “minded to” letter dated 31st March 2009. Mr Gibbons made this plain when he attended the housing department on 8th April 2009″. In these circumstances, “the only way the Council could receive any relevant oral representations on behalf of Mr Gibbons was by acceding to Bury Law Centre’s request for a meeting.”

On iv) this was rendered somewhat academic by the finding on Regulation 8(2) at iii). However, there was nothing in the ‘minded to’ letter, which simply referred to further written submissions or a telephone call, that would give rise to a legitimate expectation of an oral hearing, if Reg 8(2) had not been engaged. Bury would have succeeded on this ground of appeal if the circumstances were otherwise, but it wasn’t so they didn’t. In any event, “following the despatch of the “minded to” letter dated 31st March, it became apparent that the only way of receiving the relevant oral submissions from or on behalf of Mr Gibbons was by holding a meeting as requested by Bury Law Centre.”

Appeal dismissed.

This is an interesting case on oral submissions under Reg 8(2). We have seen a telephone call being held to suffice previously (Makisi v Birmingham City Council) , and it is not ruled out here, but it is also clear that where there is legal representation (and certainly where that representation is key to submissions being made) then a full oral hearing is required.

it is also interesting and potentially useful on whether a Council’s inadequate or non-existent advice on a previous occasion is something that should be considered in s.184 inquiries and s.202 review. If it is material – for instance on housing benefit claims as here – then it should be a factor in the Local Authory’s considerations.