Mitu v London Borough of Camden [2011] EWCA civ 1249

In which the Court of Appeal splits over the proper interpretation of Regulation 8(2) of The Allocation of Housing and Homelessness (Review Procedures) Regulations 1999, while agreeing on the outcome in this case. Reg 8(2) being the provision that if, in reaching a s.202 Housing Act 1996 review decision:

If the reviewer considers that there is a deficiency or irregularity in the original decision, or in 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 reviewer 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.

The brief facts were that Mr M had applied as homeless to Camden. He said he was homeless as the result of a domestic dispute, that he suffered from depression and epilepsy, anxiety and anger management issues. A medical report was done by a Dr Jackson on the basis of Mr M’s medical records, but without seeing him. Dr Jackson was not Mr M’s usual GP.

Camden found Mr M intentionally homeless and not in priority need, owed only the s.190(3) duty to the intentionally homeless to provide advice and assistance. Mr M requested a review. Mr M’s solicitors made representations that the wrong legal test had been applied by the decision maker and that “You refer to a medical report by our client’s doctor Dr Jackson we do not know what report you have considered as neither the writer nor the client knows who Dr Jackson is.”

The review officer found that Mr M was not intentionally homeless but that he did not have priority need. The s.202 review decision addressed the medical report:

“Your letter included no new medical information to consider and confirmed our existing understanding of Mr Mitu’s medical condition … You have received a copy of the completed medical assessment form, completed by Dr Jackson on behalf of Mr Mitu’s usual[ly] GP, Dr Emma Parsons using information taken from the patient’s notes. You pointed out that your client did not know who Dr Jackson was but, in these circumstances, I am satisfied the information is reliable.”

The review officer also decided that Camden would not exercise its discretion under s.192(3) Housing Act 1996 to provide accommodation, but just owed the s.192(2) duty to advise and assist those not in priority need to find accommodation.

Mr M appealed to the County Court on the basis that the review officer had not followed the correct procedure. Either reg. 8(2) was engaged and Mr M should have been given the opportunity to make representations, or at the very least the review officer should have explained why reg 8(2) wasn’t engaged. The appeal was dismissed. Mr M made a second appeal to the Court of Appeal.

Lewison LJ found that:

i) ‘the original decision’ in reg 8(2) meant the whole s.184 decision, and although there were discrete decisions on eligibility and what if any duty was owed in s.184, it would be wrong to treat them as discrete in deciding if there was a deficiency in ‘the decision’.

ii) The words of reg 8(2) must be interpreted in the light of their purpose, set out by Carnwath LJ in Hall v Wandsworth LBC [2004] EWCA Civ 1740 at 26:

Thus, the requirement for advance notice of the intended decision in certain cases does not derive directly from the statute itself. The thinking behind such a requirement seems to be that a bare right to make representations on the first decision will not be sufficient, if that decision was itself flawed in some respect, so that it does not represent a full and reliable consideration of the material issues. In that event the applicant’s rights are reinforced in two ways: first, by requiring the reviewing officer to give advance notice of a proposed adverse decision and the reasons for it; and, secondly, by allowing the applicant to make both written and oral representations on it.

This was supported in Banks v Kingston-Upon-Thames RLBC [2008] EWCA Civ 1443 on the ‘objective’ of Reg 8(2).

The meaning of ‘deficiency’ was set out by Carnwath LJ in Hall v Wandsworth at 29:

29 …The word “deficiency” does not have any particular legal connotation. It simply means “something lacking”. There is nothing in the words of the rule to limit it to failings which would give grounds for legal challenge. If that were the intention, one would have expected it to have been stated expressly. Furthermore, since the judgment is that of the reviewing officer, who is unlikely to be a lawyer, it would be surprising if the criterion were one depending solely on legal judgment. On the other hand, the “something lacking” must be of sufficient importance to the fairness of the procedure to justify an extra procedural safeguard. Whether that is so involves an exercise of “evaluative judgment” … on which the officer’s conclusion will only be challengeable on Wednesbury grounds.

30 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. In such a case, if he intends to confirm the decision, he must give notice of the grounds on which he intends to do so, and provide an opportunity for written and (if requested) oral representations.

The relative importance of a flaw, which must be of sufficient importance, is to be considered as per Lawrence Collins LJ in Banks v Kingston-Upon-Thames RLBC; Makisi v Birmingham City Council [2011] EWCA Civ 355;

… although the original decision itself cannot be faulted, it came to have a deficiency which was of sufficient importance to justify the additional procedural safeguard, in the sense that further representations made in response could have made a difference to the decision that the reviewing officer had to make.

iii) The present case was on a procedural issue, not a substantive one on whether the decision could stand. Lord Neuberger’s obiter comments in Holmes-Moorhouse v Richmond-Upon-Thames LBC [2009] UKHL 7 on decisions being capable of surviving an error in reasoning were not relevant.

iv) In Lambeth LBC v Johnston [2008] EWCA Civ 690, Rimer LJ emphasised that the right to make further representations was not at the discretion of the reviewing officer, based on the officer’s view of whether the representations would be of any value.

v) Camden argued that “a flaw in a decision would only amount to a “deficiency” if (a) it was a relevant flaw, in the sense that it was a flaw in the reasoning on an issue on which the reviewing officer was minded to find against the applicant despite the existence of that flaw; and (b) it was a sufficiently serious flaw to justify the invocation of the additional procedural safeguard”. However, this meant writing words into the regulations, narrowing its purpose and narrowing the meaning of ‘deficiency’ set out by Carnwath LJ. It also went against Lawrence Collins LJ’s view of when the procedural safeguard was justified. There was no reason to exclude cases which fell within the ambit of the literal words of Reg 8(2)

vi) In the present case,  the review officer had rejected the original decision that Mr M was intentionally homeless, but confirmed the decision that Mr M did not have priority need. The review officer therefore decided an issue against Mr M’s interests. The review officer appears to have found that the original decision did not address the issue of Mr M’s intentional homelessness adequately, so it was not a reliable consideration of the material issues. ‘Broadly and untechnically’ if the review officer considers the decision was wrong on an important aspect of the case, then he has identified a deficiency in the decision. So the decision here was confirmed, in part, despite having identified a deficiency. The decision was ‘confirmed on different grounds’. A Reg 8(2) notice should have been issued. To hold otherwise was to say that the review officer had the power to decide that nothing the applicant could say would cause him to change his mind.

In his representations Mr Mitu, through his solicitors, had called into question the reliability of Dr Jackson’s assessment. Mr Bond nevertheless concluded that Dr Jackson was reliable. Further representations on that question would have given Mr Mitu a chance to persuade him that he was wrong. In addition the fact is that in the present case Mr Bond considered whether Camden should exercise its discretionary power to secure accommodation for Mr Mitu; and decided that it should not. Whether or not he was legally obliged to consider that question, if Mr Mitu had had advance notice that he was minded to reach that decision, he would have had the opportunity to persuade Mr Bond that the discretion should have been exercised in his favour.

Sullivan LJ agreed with Lewison LJ

Rix LJ agreed that the appeal should be upheld, but took a different view on when Reg 8(2) was engaged.

In this case:

the determinative factor is that the deficiency or irregularity identified by the reviewer in respect of the issue of intentional homelessness meant that, if he was minded, as he was, to uphold the original decision in finding that Mr Mitu was not a priority case, his ultimate decision on review would be that Mr Mitu was owed a section 192(2) duty, coupled as it was with a section 192(3) discretion, rather than a stand-alone section 190(3) duty. The effect of the reviewer’s way of looking at Mr Mitu’s application was that there was not only an inadequacy in dealing with the question of intentional homelessness but also and in any event an inadequacy in giving consideration to the question of Camden’s discretionary power under section 192(3). In such circumstances, the reviewer was obliged by regulation 8(2) to give Mr Mitu notice of what he was minded to decide and why, and to afford Mr Mitu an opportunity to make further representations, oral or in writing. It is ultimately clear in the light of Lewison LJ’s analysis that, even though the content of the section 192(2) duty is the same as the content of the section 190(2) duty, the fact that the former duty, unlike the latter duty, is coupled with a discretionary power to secure accommodation for the applicant entails that the statutory notice and the right to make further representations in the knowledge of what the reviewer is minded to decide are valuable rights which, on a purposive construction of the regulation, fairness to the applicant requires him to be afforded.

However, a purposive construction of the regulation, as set out in Hall v Wandsworth LBC and Banks v Kingston-Upon-Thames RLBC meant that what was required was more than the finding of any irregularity or deficiency. Rather the deficiency or irregularity must be of sufficient importance to the fairness of the procedure to justify an extra procedural safeguard. There is therefore a two stage process, first the identification of a deficiency or irregularity in the initial decision and then an evaluative judgment that the deficiency is material to the fairness of the procedure.

It is for the reviewer to evaluate whether the deficiency is of ‘sufficient importance’. Lambeth LBC v Johnston might seem to go against this view, but it was a case decided between Hall and Banks and should be considered on its own facts, as in that case the submission that the reviewer had a subjective discretion whether or not to send a notice could not succeed. The Recorder on first appeal in that case had also decided that it was a case where potential further representations had not been rendered otiose. So Rix LJ’s view that the flaw must be of sufficient importance to the fairness of the procedure to engage Reg 8(2) was not incompatible with Johnston.

If, therefore, in the present case, it could have made no difference to Mr Mitu whether he failed on the ground of intentional homelessness or on the ground of not being in priority need, I would have considered that the flaw identified in the original decision’s conclusion about the former issue could not have mattered, since the reviewer decided that issue entirely in Mr Mitu’s favour. As it is, however, the flaw did matter, and I agree that this appeal should be allowed.

Comment

I think I have to disagree with Rix LJ on this. The relevant ‘difference’ for Mr M is not between failing on intentionality and failing on priority need, but between failing and not failing at all. That is the point of the further representations. That would be so even if there was no difference at all in terms of outcome between failing on intentionality and failing on priority need.

Despite Rix LJ’s attempts to restrain Johnston to its particular facts, the statement of Rimer LJ  at para 51 is unqualified:

reg.8(2) is not a discretionary option that the review officer can apply or disapply according to whether or not he or she considers that the service of a “minded to find” notice would be of material benefit to the applicant. Regulation 8(2) imposes a dual, mandatory obligation upon the review officer. First, to “consider” whether there was a deficiency or irregularity in the original decision or in the manner in which it was made. Secondly, if there was—and if the review officer is nonetheless minded to make a decision adverse to the applicant on one or more issues—to serve a “minded to find” notice on the applicant explaining his reasons for his provisional views. In my judgement, there is no discretion on the review officer to give himself a dispensation from complying with either of those obligations. As regards the first part of it, I have referred to the fact that it is not a purely subjective exercise but that failure to arrive at the right “consideration” can be challenged on usual public law grounds. As regards the second part, the language of reg. 8(2) is unambiguously mandatory—”the reviewer shall notify …

The assessment of the importance of the flaw is, as Lawrence Collins LJ is quoted as saying above, to be considered in terms of whether further representations in response could have made a difference to the reviewing officer’s decision, not, as Rix LJ appears to suggest, whether there is a difference between failing on the original decision and the basis on which one fails the review. This cannot be a subjective decision for the review officer.

However, as Rix LJ was in the minority, it is Lewison LJ’s judgment that sets out when Reg 8(2) is engaged and what must be done.