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Makisi & Ors v Birmingham City Council [2011] EWCA Civ 355

Does the right to make oral submissions to a review officer on a s.202 Housing Act 1996 review, following a ‘minded to’ letter, mean that the applicant has the right to insist on a meeting?

This was the Court of Appeal hearing of three joined second appeals, from s.204 appeals to the County Court. All three appellants were appealing review decisions by Birmingham City Council. One of the County Court appeals, that of Ms Makisi, we previously reported here. The other appellants were Mr Yosief and Mr Nagi.

I won’t go into detail of the facts in each case. It is sufficient to note that in each case, a s.202 review was underway, whether of a s.184 decision, or of suitability of a final offer of accommodation. In each case, save for that of Mr Nagi (to which we’ll come back at the end), a ‘minded to’ letter under 8(2) of the 1999 Review Procedures Regulations was sent, indicating that the review officer was minded to hold against the applicants despite deficiencies in the original decision. The letters invited the applicants to make further submissions, orally or in writing.

In each case, the applicants’ solicitors requested an ‘oral hearing’ by way of a face to face meeting, not least because credibility was an issue. In each case Birmingham rejected (repeatedly) a face to face meeting and insisted that oral submissions would be by phone, with an interpreter if required. Birmingham then phoned the applicants (not their solicitors) and promptly made adverse decisions.

In each case, as in our report on Ms Makisi’s case, the s.204 appeal on grounds that the applicant had the right to request face to face oral submissions (with their representatives present) failed, with the Circuit Judges holding that reg 8(2) did not make express provision for an oral representation being by face to face meeting, or confer a right to such a meeting.

At the Court of Appeal, the appellants did not dispute that oral representations can include representations made by telephone, Bury MBC v Gibbons [2010] EWCA Civ 327 [our report here], but argued that it was for the applicant, not the authority, to decide whether the representations should be at a meeting rather than by phone.

They argued that the 1999 regulations were made pursuant to s.203(2) HA1996 which says that provision may be made by regulations as to the circumstances in which the applicant is entitled to an oral hearing and by whom he may be represented at that hearing (which was the view expressed by Carnwath LJ in Hall v Wandsworth LBC [2004] EWCA Civ 1740).

Further, paragraph 19.12 of the Code of Guidance, commenting on Reg 8(2), is headed ‘Oral Hearings’, where 19.10 and 19.11 are headed ‘written representations’.

As Reg 8(2) gives the applicant the choice of making written or oral representations, or both, it would be odd for the Authority to then have the right to determine how these representations should be delivered, an there was no express provision for them to have that right.

The appellants argued for the value of such a right, citing Rimer LJ in Lambeth LBC v Johnston [2008] EWCA Civ 690 [our report here]:

That is a most important advantage to the applicant. It may well, in many cases, enable him to engage in no more than an exercise of advocacy. But advocacy can turn a case. There can be few judges who, having formed a provisionally adverse view on a skeleton argument advanced in support of a case, have not then found their view transformed by the subsequent oral argument for which, in the art of advocacy, there is no comparable substitute. The opportunity open to an applicant to try, by written and/or oral argument, to persuade the review officer that his reasoning for his provisional conclusion is mistaken is—at the very least—potentially of great benefit to an applicant. To be deprived of that right is or may be seriously prejudicial. [53]

For those with a weak case, or poor writing skills or where credibility was in doubt, this was a valuable right, but these were also the cases where the review officer was most likely to refuse a request for an oral hearing.

The appellants further argued that an oral hearing could include evidence from third parties:

44. […]The appellants point out that an applicant can provide new evidence at any time prior to the conclusion of the review, and that to bring third parties to an oral hearing might be the best way to do so.

45. Ms Tueje envisaged that the review officer might also ask third parties to give evidence at such an oral hearing, and, if they did, that the applicant or the applicant’s representatives would be able, in effect, to cross-examine them. Mr Stark also considered that there might be circumstances in which a third party could be cross-examined by the applicant or the applicant’s representative. Mr Nicol, on the other hand, submitted that the review officer could refuse to permit any cross-examination at such a hearing.

Birmingham argued that under Part VII Housing Act 1996 generally and indeed under the 1999 Regulations, matters of procedure were usually a matter for the Local Authority. Under s.184 it is for the Authority to make enquiries and satisfy itself, with no place for representations set out and no right to make them. At 6(2)(b) of the Regulations, where a request is made for a review under section 202 of the Act the Authority shall “notify the applicant of the procedure to be followed in connection with the review”.

It was extremely unlikely that Parliament had intended the applicant to have the right to such an extensive hearing, with cross examination of third parties, contended for by the applicants, and there was nothing in Reg 8(2) which required the Authority to notify the applicant of a right to a hearing.

Birmingham argued that Regulation 8 had not been made pursuant to s.203(2)(b), rather it was made pursuant to “the more general provision in section 203(1) of the Act, which stipulates that the Secretary of State may make provision by regulations as to the procedure to be followed in connection with a section 202 review.” The reference to s.203(2) in the preamble to the Regulations was actually a reference to s.203(2)(a) – requiring a person of appropriate seniority who was not involved in the original decision – and pointed to Reg 2, which addressed that requirement.

There was no argument or issue on the question of oral representations in Hall v Wandsworth London Borough Council, so the appellants could not rely on Carnwath LJ’s views. Moreover, Hall v Wandsworth did hold that:

“the role of the reviewer remains that of an administrator, not an independent tribunal”. The review process, Mr Manning observed, is not a judicial one but an administrative one: the right of an applicant to demand a hearing, certainly of the kind envisaged by the appellants, is not consistent with such an administrative, non-judicial, process.

The Regulations should be compared with the Introductory Tenants Review Regulations and the Demoted Tenancies Review Regulations, both of which confer on the tenant in express terms a right to request an oral hearing and specify with some detail the procedure to be followed at such a hearing. The absence of such express terms in the Regulations would indicate that a right to an oral hearing was not being conferred, particularly as the first set of review procedure regulations (the current being the third) were made at the same time as the Introductory Tenancy Review regulations, and made no reference to an oral hearing at all.

The kind of extensive hearing sought by the appellants would be to judicialise an administrative process and impose a significant resource burden. Birmingham argued that:

in the field of statutory social welfare schemes, where the administering authority’s obligations under the scheme could, equally viably, be construed (1) in two or more ways, one of which would permit a significantly lower expenditure of resources than the other or others, or (2) as permitting the authority to take account of its resources in deciding how to perform the duty, the court should prefer the construction that allows resources to be conserved rather than an alternative construction which would require the greater expenditure of resources. In other words, the authority should be allowed the benefit of a choice to perform its functions in a less expensive manner. The respondent’s skeleton argument cites in support of that proposition R v Gloucestershire County Council ex p Barry [1997] AC 584, esp at 604E-F and 605 (Lord Nicholls), R v East Sussex County Council ex p Tandy [1997] AC 714, esp at 747B (Lord Browne-Wilkinson), and Ali v Birmingham CC [2010] UKSC 8; [2010] 2 AC 39, at [4] –[6] (Lord Hope). [57]

And finally, Bury v Gibbons was a case in which the Authority had simply ignored a request for an oral hearing and not on the point of whether the Authority could decide what form those took.

Held, in Etheton LJ’s lead judgment:

1. Regulation 8(2) gives the applicant the right to demand an oral hearing. Regulation 8(2)(b) of the 1996 Review Procedures Regulations was made pursuant to section 203(2)(b) of the Act, and this view was supported by the Code of Guidance and the heading to the relevant section being ‘Oral Hearings’. Rimer LJ in Lambeth v Johnston was right to describe the opportunity of face to face advocacy as “a potentially invaluable procedural right in all cases”. It would further be odd if the Authority was to be given the power to decide on whether that invaluable right should or should not be exercised without any express provision in the Regulations to allow them to do so.

Birmingham’s argument on the general procedural powers of the Authority was not accepted, s.184 and Reg 6 concerned earlier and different stages of the homeless application. Neither di the comparison with the Introductory and Demoted tenancy review regulations assist, as these “concern a local authority landlord’s decision to terminate an existing tenancy and to obtain possession, bringing to an end an existing property interest and the current right of enjoyment of residential accommodation” and it was wholly understandable why in such circumstances detailed rights and prescriptions should be set out. In contrast, the S.202 process was an administrative one, which does not engage Article 6.

2. The applicant did not have the right to call any third party witnesses to such a hearing or to cross examine. Reg 8(2) solely concerned representations by the applicant (or on his behalf) made to the reviewer. The review officer is “able to determine where and when the hearing takes place and the procedure to be followed, including finding out in advance who will attend”.

3. On Birmingham’s argument on interpretation according to impact on resources:

I do not accept the respondent’s submissions that the issue of resources supports its interpretation of regulation 8(2). Aside from what I have said about the limited nature of a hearing under that regulation, I do not consider that this aspect of the respondent’s case is supported by the authorities on which the respondent relies. R v Gloucestershire County Council ex p Barry and R v East Sussex County Council ex p Tandy were cases concerned with the quite different question of the extent to which a local authority was entitled to take into account resource considerations in deciding what welfare services it should provide. Ali v Birmingham City Council was concerned with whether Article 6 of the Convention was engaged by decision-making functions of a local housing authority and its review officer under the homelessness provisions of Part 7 of the Act. That is not an issue in the cases under appeal. In any event, the short procedural answer to the respondent’s submissions on resources is that there was no evidence in any of the trials of the cases under appeal, and there is no evidence before us, as to the resource implications of applicant’s right under regulation 8(2) to demand a hearing of the kind I have described; and there is no respondent’s notice in any of the appeals raising the issue of resources.

Appeals of Ms Makisi and Mr Yosief allowed.

Mr Nagi was in a rather different position. While the reviewers in the other two cases had admitted that there were deficiencies in the orginal decisions (in one instance saying the applicant was intentionally homeless without giving reasons or explaining what it meant!) and thus that Regulation 8(2) was engaged, this was not so in Mr Nagi’s case.

The s.202 review was of a finding that the property he had been given by Birmingham remained suitable, where Mr N had sought a transfer saying it was no longer suitable by reason of his wife’s medical condition. The review officer had written saying that “he was minded to hold against Mr Nagi. The review officer said that, although he did not consider there to be any irregularity or deficiency in the original decision, he was nonetheless offering an opportunity for Mr Nagi to respond. He said that, if Mr Nagi or his wife wished to provide any further information on those matters on which the review officer was minded to find against them, they or someone acting on their behalf could make oral representations, further written representations, or both oral and written representations.” From there, the same path of insisting on a telephone hearing was followed.

The question, then, was whether Regulation 8(2) was engaged in Mr N’s case. And that turned on whether there was a deficiency or irregularity in the original decision. Mr N’s s.204 appeal on that ground had been rejected and the Court of Appeal heard his second appeal on that.

Following Carnwath LJ in Hall v Wandsworth:

To summarise, the reviewing officer should treat reg 8(2) as applicable, not merely when he finds some significant legal or procedural error in the decision, but whenever (looking at the matter broadly and untechnically) he considers that an important aspect of the case was either not addressed, or not addressed adequately, by the original decision-maker. …” [30]

Therefore Mr N had to establish:

that no reasonable review officer could have concluded that regulation 8(2) was not engaged because the letter of 20 October 2010 disclosed neither a significant legal or procedural error nor that the respondent had failed to address, or address adequately, an important aspect bearing on the decision. In making that evaluative judgment as to whether an important aspect had not been addressed, or addressed adequately, the review officer would, as Carnwath LJ said, look at the matter in a broad and untechnical way.

Holmes-Moorhouse was (inevitably) quoted on housing officers not being lawyers in support of taking the broad and untechnical view.

For Etherton J, while the letter was poorly written and bore all the hallmarks of a clumsily adapted form letter, it could not have left a reasonable reader in any doubt as to the basis of the decision, even if at times it referred to ‘your medical condition’ rather than that of Mr N’s wife.

The letter expressly referred to both Mrs Hassan’s physical difficulties and, more particularly, the safety aspects of her use of the stairs in her medical condition. Moreover, the bullet points stated expressly that the respondent had taken into account the information in Mr Nagi’s application form, the information he had supplied about his wife’s medical condition, and the advice given by NowMedical. No reasonable review officer could have been left in doubt that all the significant issues had been addressed.

Accordingly Etherton LJ dismissed Mr N’s appeal

Maurice Kay LJ agreed but was less convinced by the decision letter

81. […] I am more critical of it than Etherton LJ is. It is not an impressive document. Leaving aside its drafting shortcomings, I have come close to concluding that, even on the basis of the broad approach we are required to take, it falls short of achieving sufficiency of reasons. In particular, the sentence “I conclude that your wife’s condition does not prevent her undertaking some stairs” is taken from the report of Dr Keen. However, that report was more explicit. It went on to say:
“I acknowledge her concern regarding safety on stairs, but the description of her fits … does not indicate that these are of sudden or dramatic onset and are preceded by a period of shakiness which acts as sufficient warning to her if on stairs.”

82.In my view, the decision would have been more intelligible if it had included this explanation. I am content to agree that the reasoning in the decision letter was sufficient but the carelessness and the laconic nature of the explanation did cause me to hesitate.

Mr N’s appeal dismissed

James Stark for Ms Makisi
Patricia Tueje for Mr Yosief
Nik Nicol for Mr Nagi
All instructed by Community Law Partnership

Jonathan Manning, Emily Orme, Stephanie Smith and Annette Cafferkey for Birmingham CC.

Postscript
I noted in the report of the first appeal in Makisi that the decision that the Local Authority could insist on a telephone call only went strongly against the spirit of Lambeth LBC v Johnston and it is good to see the Court of Appeal taking the view that it does. While representations by telephone call may be sufficient, it is hard to see on what basis (other than their own pressures of time) a review officer could come to a considered assessment of whether face to face or by telephone was called for. Now it is established that the right to decide whether to make oral submissions by telephone or by a face to face hearing is the applicant’s.

Seeking third party witnesses and cross examination may have been a stretch for the appellants. Hearing representations is not necessarily quasi judicial and seeking such elements in what was conceded to be an administrative matter would be distinctly new.

Also interesting to see Birmingham’s resource argument. While it is fairly summarily kicked out of touch here – and would have to be, given the findings on Reg 8(2) – I suspect that we will see versions of this argument again in the future.

As a complete aside, back in 2009 we actually had someone from Birmingham’s HPU – a review officer I think – post a comment on Nearly Legal masquerading as a Shelter volunteer and seeking our views on whether the applicant could insist on an oral hearing in a Reg 8(2) situation. Luckily, the Birmingham officer wasn’t very good at pretending to be a Shelter volunteer and was exposed. You can see it in the comments to this post. She or he may have had to wait for a while, but now they’ve got a definitive answer.

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, Uncategorized and tagged , , , , .

7 Comments

  1. So, even though judges may conduct telephone hearings [via CPR 3.1(2)(d)], the Court of Appeal don’t trust local authorities to do likewise? – well, not where the applicant/his solicitors want to insist upon a face-to-face meeting.

    So if the applicant and his solicitor trek out to the offices of the HPU for the opportunity to make oral representations face-to-face and are met by some work experience trainee clutching a tape recorder, are we all happy with that? I doubt you would be. The Regulation does say that the applicant/a person acting on his behalf “may make representations TO THE REVIEWER orally or in writing …”. On that basis talking to a pimply sixth-former who’s in charge of working a tape recorder wouldn’t be enough even if he were to assure the applicant and his solicitor that the decision-maker will listen to the tape at some stage before the review decision is made.

    But if the applicant and his lawyer on arrival at the HPU were to be told that the reviewing officer is working from home that day but that they can make their representations to him via video link/a computer with a web cam, would that be enough? I don’t see why it shouldn’t be.

    • Chris B – I’m genuinely puzzled by your comment. Not sure where you’re going with it.

      Telephone hearings at Court are for CMCs and the like, nothing involving evidence or significant submissions, so no comparison, but in any event, the CoA didn’t say a telephone call wouldn’t do – it may well – but this issue was does the authority have the right to decide in what form oral submissions are made. The answer is no.

      Don’t know where the work experience chap came from – that has nothing to do with the judgment and would obviously be inadequate, for the very reason you note.

      Video link? Same point would apply – no reason why it could not be adequate if the applicant agreed, but it is not for the authority to decide that is the only way it will take submissions.

  2. I remain concerned about (a) the cost of setting up these oral hearings [not just the cost to the local authority, but also the cost to the legal aid/LSC budget in funding these little excursions], and (b) what new challenges might spring up because of things done or said by the reviewer at these oral hearings. If the reviewer were to appear anything less than utterly captivated by the spellbinding bit of advocacy that he or she is being treated to might an appeal be run? If the reviewer were to request that the applicant remove her face-covering might an appeal or a complaint follow?

    Given that the Court of Appeal have sensibly said that these oral hearings are not to be turned into mini-trials with witnesses being examined and cross-examined I think there won’t actually be that much interest on the part of applicant’s lawyers in having them. After a couple of instances where the lawyer concerned has shlepped out to the HPU and said his piece in front of a bored-looking and uncommunicative reviewing officer, the novelty of it all will quickly wear off.

    Given that the Regulation does not stipulate that the applicant must be given an oral/face-to-face hearing I was somewhat surprised that the Court of Appeal have decided that it is up to the applicant to dictate that there must be an oral hearing if he wants one. If an applicant were to decide that he would like to make his written representations by writing in the mud at the beach at Southend-on-Sea, must the reviewing officer trot off to the seaside?

    • Just to be clear – no extra cost to the LSC. Homeless reviews are done on a fixed fee legal help. Worth about £174. Usually takes more than that just to do decent submissions. So any meeting is at a loss to the applicant’s solicitors.

      Look again at the regulation and the interpretation of it in view of the Guidance, as set out in this case. According to the Court of Appeal, the regulation does say, inter alia, that the applicant can chose to make oral submissions and that includes face to face.

      Appeal is, as ever, on a point of law. Can’t quite see how the reviewer’s facial expressions might give rise to a point of law. But give me time…

  3. Apparent bias perhaps – a reviewer who sat there , sneered at submissions and made no notes at all of what was said to him or her

    • Evidence would be fun! But would be a question of whether submissions were adequately dealt with in the review decision?

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