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Facing up to it


Kamara v London Borough Of Southwark (2018) EWCA Civ 1616

In Makisi & Ors v Birmingham City Council (2011) EWCA Civ 355 (our report), the Court of Appeal decided that the right to make ‘oral submissions’ in response to a ‘minded to’ letter under 8(2) of the 1999 Review Procedures Regulations meant a right to request ‘face to face’ advocacy in making representations.

In these three joined appeals, the sole issue was whether this meant that the ‘minded to’ to letter had to specify the right to a face to face meeting for representations.

In each of the cases, ‘minded to’ letters had been sent to the appellants, saying either that they “may make further oral and/or written representations” or that they may make further representations “either orally or in writing or both”. In each case, the appellants’ solicitors had made further representations in writing, and not sought to make oral submissions.

However, the issue was whether, in the light of Makisi, the 1999 Review Procedure Regulations should be interpreted as to require the ‘minded to’ letter to set out a right to face to face representations.

The basis for this argument was that it was necessary for homeless applicants to be aware that they had the right to ‘face to face’ representations and not to be mislead as to what ‘oral representations’ might mean.

The Court of Appeal dealt with this briefly.

Although, as is clear from Makisi, the right to make oral representations may be exercised at a face-to-face meeting, that is evident from the language of regulation 8(2)(b) itself. Like Etherton LJ, I consider that the most obvious meaning of that phrase is one which connotes some kind of meeting or hearing at which the applicant or his representative can make their points in response to the minded-to letter. It is not necessary to expand the scope of the notification in order for an applicant or his advisors to understand that.

My other reason for rejecting the Appellants’ construction of regulation 8(2)(b) is that it would be productive of uncertainty in relation to what is intended to be a straightforward administrative procedure carried out by the staff of local housing authorities. The courts have made it clear on a number of occasions that homelessness review decisions should not be scrutinised and interpreted as if they were the judgments of a court or the opinion of a lawyer: see e.g. Holmes-Moorhouse v Richmond-upon-Thames London Borough Council (2009) UKHL 7. The same context governs the operation of the Review Regulations. They are made by the Secretary of State under s.203 in order to set out the procedure to be followed by local housing authorities on a s.202 review. Regulation 8(2)(b) sets out what the reviewer must notify the applicant of. It does not in terms indicate that any further detail is required. If the regulation is to be construed so as to require the reviewer to set out the various ways in which oral representations could be made then it would create the obvious danger (already alluded to) that the list provided could be criticised as incomplete. The express inclusion of one method of making oral representations might be regarded as suggesting that other methods are excluded. By contrast, if the regulation does no more than to require the reviewer to set out the provisions of regulation 8(2)(b) verbatim, it provides a simple, certain instruction which, if followed, informs and allows the applicant to elect to make his representations in the way he finds most convenient. There is nothing obscure or unfair in that process.

I am not therefore persuaded that it is either necessary or correct to interpret regulation 8(2)(b) in a way which requires the reviewer to spell out the effect of the decision in Makisi. That would require words to be read into regulation 8(2)(b). There is certainly nothing in Makisi itself which is supportive of that argument and the administrative context in my view favours a literal construction of the regulation. This is supported by the 2006 Code of Guidance published by the Secretary of State under s.182 HA 1996 which in [19.12] states that under regulation 8 the reviewer should notify the applicant:
“that the applicant, or someone acting on his or her behalf, may, within a reasonable period, make oral representations, further written representations, or both oral and written representations.”

For these reasons I would dismiss these appeals.


This is not a wholly surprising outcome, given what was said in Makisi about ‘oral representations’ in the regulations meaning face to face, or at least the option of it.

While the review regulations have now been replaced by the Homelessness (Review Procedure etc) Regulations 2018 (2018 No. 223), the new Reg 7 is in the same wording as the old Reg 8, so this will be of continued application (as will Makisi).

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.


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