In Norris v Milton Keynes Council [2010] EWCA Civ 77 (not on Baili, Lawtel or Westlaw yet, but, thanks to the Chief’s special powers, we have a copy), Rimer LJ considered that a second appeal was merited on two points – LAG, which brought this case to our attention, notes that the appeal was compromised following the grant of permission.

In brief, the facts are that MK offered Ms Norris a property on 30.10.2008 in discharge of their Part VII duties under s 193(7).  MK knew that Ms Norris suffered from epilepsy and needed a shower, rather than a bath, because of the risk of drowning.  The property only had a bath.  At the viewing on 05.11.2008, Ms Norris was told that any subsequent OT assessment would be followed, including if necessary the fitting of a shower cubicle.  Ms Norris sought a review of the suitability of the offer.  The reviewer found it suitable on the basis of the assurances at the viewing.

There were two grounds of appeal, and both of them are really quite interesting generally.

The first issue concerned whether the Regulation 8(2), Allocation of Housing and Homelessness (Review Procedures) Regulations 1999, was engaged because of a deficiency in “the” decision.  Adrian Marshall-Williams for Ms Norris argued that “the” decision to be reviewed was the offer letter of 30.10.2008, a decision which was clearly deficient.  MK and the HHJ had said it was not engaged because it had been supplemented with the subsequent assurances at the view; Rimer LJ was also initially of the view that it was not engaged but changed his mind and considered that it was a point of some general importance on which there is only limited authority, if any.  Now, this is a really important point, I think (and not one that I’d given much thought to before reading the decision) because it does raise both a technical ground of appeal as well as, much more importantly in my eyes, an important right for the applicant on a review to make written/oral submissions (on which see our notes of Banks v Kingston-upon-Thames LBC [2009] HLR 29 & Lambeth LBC v Johnston [2009] HLR 10, esp at [53], again per Rimer LJ).  There’s definitely food for thought there.

The second ground of appeal was whether the assurance at the viewing on 05.11.2008 was sufficiently certain to satisfy the Boreh criterion regarding assurances (at [27] in Boreh).  Rimer LJ regarded this as an arguable point and was satisfied about its importance on the basis that this point had not been the subject of argument in Boreh and, as it had been raised directly in this case, could now be the subject of full argument as to its ambit.

Sadly, of course, the case will never be heard; but I should record congrats to Adrian Marshall-Williams for convincing Rimer LJ of the two grounds when it didn’t seem as if, on reading the papers, he was that convinced at all.