By SJM
20/05/2012

Part VII and Procedure

Two very recent Court of Appeal judgements have looked at the extent of a Local Authority’s obligations under Reg 6(2) of the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999: Maswaku v Westminster CC and El Goure v RB Kensington & Chelsea.

In brief, the Regulation provides that once a request for a s.202 review has been made, the Authority is obliged to notify the applicant of their right to make further representations on review, either personally or by somebody on their behalf.

In both El Goure and Maswaku, the Authorities were criticised for failing to notify the Appellants or their solicitors once the requests had been made that the Appellants themselves, or somebody else on their behalf, might make review representations. Mummery LJ gave the lead judgement in both cases and remarked that the point was an empty one. The purpose of the Regulation was to protect unrepresented applicants, not those who already had the benefit of legal representation. There was no suggestion that the applicants failed to make the desired representations because of the lack of notification and it did not follow that the review decision ought to be quashed, even if the duty to notify was mandatory. There was nothing further that the Authority could reasonably have been expected to do as the underlying purpose of the Regulation had been achieved.

(Comment: it would be interesting to see how the Court would deal with this issue if an applicant, in ignorance of their rights, made their own representations on review)

The additional issue in Maswaku concerned the duty under s.193(5) of the Housing Act 1996 to notify the applicant of the ‘possible consequence’ of refusal of temporary accommodation. The applicant refused a placement in Dagenham because of the difficulties involved in attending training in Hackney. The Appellant complained on appeal that she had not been informed, inter alia, of her right to make a fresh application as homeless, the risk that she might be found intentionally homeless and the risk that she might lose priority on the waiting list.

The judge rejected this ground of appeal. The ‘possible consequence’ of refusal of temporary accommodation was the discharge of housing duty, which had been communicated. It was not incumbent on the council to spell out all the potential consequences of refusal of temporary accommodation.

The main issue in El Goure was the test that the Authority applied under s.189(1)(b) where the children’s residence was shared. The Appellant complained that the council had applied an ‘exceptionality’ test and had misdirected itself, whereas the statutory question was whether it was reasonable for the children to reside with the Appellant. The Court noted the use of the word ‘exceptional’ in the review decision but found that the way the reviewer reasoned the decision showed that the correct test had been applied. The reference to ‘exceptionality ‘ in Holmes-Moorhouse was intended (as in Pinnock) as an outcome and not a guide. The appeal was dismissed.

SJM is partner and head of the housing and public law department at Miles and Partners LLP, based in London E1.

1 Comment

  1. chief

    The Supreme Court has refused PTA in Maswaku. No word yet, so far as I know, on El Goure, which I seem to recall was the stronger one.

    Reply

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