I don’t like reg.8, no no… I love it

Mohamoud v Birmingham CC [2014] EWCA Civ 227

As all of our readers doubtless know, the way that decision making in homelessness cases works is something like this: a first decision is made by someone on behalf of a local housing authority; if that is in the applicant’s favour, all well and good; if it isn’t, the applicant can ask for a review; that review is carried out by someone else on behalf of the authority, who might overturn the original decision or who might confirm it; if they confirm it, the applicant can appeal to the county court.

Recognising that at the review stage it is quite possible that the authority might realise that there had been a bit of a mistake in the original decision (which is inevitably bashed out in 20 minutes as a cut-and-paste job from various templates), provision is made in the review procedure for the authority to tell the applicant that they think there has been a mistake, but that they are nonetheless planning on upholding the first decision. The relevant provision is regulation 8(2) of the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999:

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 or in writing.

So, the reviewing officer has to consider whether there is a deficiency or irregularity in the first decision. For these purposes, “deficiency” has been held to mean “something lacking” which is of sufficient importance to justify the safeguards afforded by reg.8: see Hall v Wandsworth LBC [2004] EWCA Civ 1740; [2005] HLR 23.

Importantly, that “something lacking” might be the failure to deal with events after the first decision, even though they (fairly obviously) could not have been dealt with at that time: see Banks v Royal Borough of Kingston-upon-Thames [2008] EWCA Civ 1443; [2009] HLR 29. In Banks, the initial decision had been that the applicant was not homeless or threatened with homelessness. After that decision, but before the review decision, he was given notice to quit by his landlord. The council nonetheless upheld the decision on the basis that, although he was now homeless, he was not in priority need. He was not given any opportunity to make representations about the council’s intention to find that he was not in priority need. His appeal was allowed by the Court of Appeal (who also made some acerbic comments about the whole thing being a waste of money because in that case it was clear that he would have had a right to make a fresh application).

Turning then to the facts of this case. M had separated from her husband and was staying with a friend. M was asked to leave by that friend when she discovered that M was pregnant. M applied to BCC for housing under Housing Act 1996. Her homelessness application form, which would have been filled in by a council employee while M was present, recorded that M spoke English and did not require an interpreter. It also said, several times, that M had been told that BCC would only make her one offer of housing.

In due course, BCC made an offer of a 2-bed flat to M. That offer was contained in a letter which stated that:

[W]e only have to offer you accommodation once. We are offering you this accommodation as your one and final offer in order to discharge our duty to you …

If you turn this offer down without good reason we will not offer you any more accommodation.

M rejected the offer on the basis that it was too small, she was frightened of heights and did not want to live in a high-rise flat. BCC decided that the offer discharged its duty under the 1996 Act.

M then went to solicitors (Shelter West Midlands), who asked for a review on her behalf. In that request for a review, it was said that:

[Y]ou have failed to consider all of Miss Mahamoud’s circumstances leading up to the refusal- including the fact that English is not her first language and she found the entire process confusing and there was no support to make it less confusing for her.

… At the time when the full housing duty was accepted, she was advised by several friends that she would be entitled to up to three offers of permanent accommodation. Miss Mahamoud had seen them go through similar circumstances and had no reason to question the advice they gave her. English is not Miss Mahamoud’s first language and she did not fully understand the section 184 letter that was sent to her. She relied on friends to advise and guide her as they had gone through the homelessness process themselves.

Miss Mahamoud was confused by the bidding process, she understood that she could bid on three properties per week and thought that this supported that her friends advised her she would get three offers.

The review officer upheld the first decision. M appealed to the county court, arguing (amongst other things) that there was a deficiency in the first decision which should have triggered reg.8. As no notification had been given by BCC in accordance with reg.8, the decision should be quashed.

On first appeal, the county court judge find against M, holding that the situation was different to Banks. In that case there had been a change of circumstances after the original decision and before the review decision. Here, the matters complained of had been within the applicant’s knowledge before the first decision, but had not been advanced. The judge held that the first decision “did not become deficient as a result of the review officer dealing with additional matters raised by Shelter or in subsequent interview on the facts of this case”.

M appealed to the Court of Appeal. The principal judgment was given by Proudman J, who allowed the appeal. Moore-Bick LJ added a few words of agreement, while McFarlane LJ simply agreed with Proudman J.

In Proudman J’s view, the analysis preferred by the county court judge and put forward again by BCC failed to give reg.8(2) “the purposive construction required by the decision in Banks, the relevant purpose being one of overall fairness in giving the applicant the opportunity to make representations for the purposes of the review.” ([38]). Proudman J went on at [39]-[40] to say that:

While it is superficially attractive to draw a distinction between new matters and matters known to the applicant from the outset, I do not see that there is any real distinction between a new matter and a matter, such as confusion, which is capable of explaining the very reason why the point was not taken at the point of the original decision.

It follows that Banks was interpreted too narrowly by the judge below, confining the principle that one can look at new matter to determine deficiency only to cases where the point could not have been taken by the applicant at the outset.

BCC had 3 other arguments in support of the review decision. First, that the “the question whether there is a deficiency in an original decision is a matter for the reviewing officer having regard to the relevance and importance of the matter raised by the applicant on the review”. On the facts of this case, that did not assist because ([46]):

Some common sense has to be applied. To the extent that the assertions were manifestly insupportable [the review officer] was entitled to hold that there had been no deficiency in the original decision in failing to consider them and therefore no requirement for a “minded to find” notice. If she were to make such a finding, however, she should have given full and detailed reasons for doing so which would enable this court to take a view as to the sufficiency of that finding. If on the other hand Ms Mohamoud’s reasons were at all plausible, more than shadowy, a “minded to find” notice should have been sent to enable Ms Mohamoud to argue the point.

Secondly, that the decision under challenge, i.e. BCC’s decision to discharge duty following the refusal of an offer of accommodation, related to the suitability of the property and the reasonableness of rejecting it, but not whether or not M had understood the process. That was rejected by Proudman J – reg.8 is about procedural safeguards to ensure that an applicant is fairly treated.

Thirdly, there had been no complaint about the alleged deficiency during the review process. That was also rejected by Proudman J as going

against the finding in Johnston [Lambeth LBC v Johnston [2008] EWCA Civ 690 (our note here)] that a reviewing officer’s failure to serve a “minded to find” notice is not cured by the applicant having had the opportunity to make representations before the decision. In Ibrahim [Ibrahim v Wandsworth LBC [2013] EWCA Civ 20 (our note here)] the lack of complaint was merely one of the matters which Etherton LJ took into account in deciding that the outcome would have been the same in any event. I observe that in the present case Shelter did draw the reviewing officer’s attention to the relevant matters. ([51])

Therefore, M’s appeal was allowed, notwithstanding that

this means that there will be an extra layer of bureaucracy and that the Council will fear that an applicant, unsuccessful at the stage of the original decision, can have another bite at the cherry at the review stage by asserting fresh matters already known to him. However, each case depends on its own facts and where, as here, the applicant’s case is one of confusion it strikes at the heart of the fairness of the procedure. ([55])

Anyway, just for S and J, here is Dreadlock Holiday.

About chief

chief is a barrister in the big city. he specialises in public law, landlord & tenant, football and rock 'n' roll (the last two are only when his clerks aren't watching). he sometimes pops by here, but not as often as he'd like. he will occasionally eschew capital letters. the reasons for this odd affectation are lost in the mists of time.
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6 Comments

  1. Surely this is a bonkers decision? Is it not just inviting applicants who don’t like their decisions to submit a claim that they were “confused”? How are local authorities supposed to be able to validate such claims? And so local authority must then comply with Reg 8 and issue a minded to letter if upholding the original decision. As the post says, another layer of bureaucracy. Are we headed for the courts telling local authorities to issue minded to letter whenever the original decision is going to be upheld?

    • Not necessarily, just that the review officer needs to be clear in giving their reasons if finding that the ‘new’ matter does not amount to a deficiency in the original decision – see para 46.

    • Thanks for your reply Giles. I think that’s my concern. How is a local authority ever going to be able to say, decisively, that an applicant’s claim to be “confused” doesn’t amount to a deficiency.

      Maybe this will be restricted down to its facts but if the local authority had reasonable information that she did know what was going on (and assuming their statement that she spoke English without any problems was not just made up!) and even then they fell foul of Reg 8 it does seem that it’s an easy target for disgruntled applicants. And local authorities will start issuing minded to letters as a matter of course – which may be no bad thing, I’m not sure.

    • The Court of Appeal was careful to note that the appellant’s assertions were plausible (which is not to say they were right) in this case. It will be an issue of assessment of fact, along with all the other elements of the review.

  2. The draft Homelessness (Review Procedure etc) Regulations 2018 move the obligation to give a “minded to” notification forward to reg.7, thus ruining a perfectly good pun. Bah!

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