11/10/2020

Tell me why – ‘Minded to’ letters and reasons

Scanlon v London Borough of Lambeth, Central London County Court 14 September 2020 (We’ve see a note of the decision).

This was a section 204 Housing Act 1996 appeal following Lambeth’s review decision that Ms S had made herself intentionally homeless. This was the trial of a preliminary issue concerning Lambeth’s ‘minded to’ decision letter sent during the course of the review.

During the course of the review, Lambeth had sent Ms S’ solicitors a “minded to” decision pursuant to Reg 7(2) Homelessness (Review Procedure etc). Regulations 2018/223, finding that the original decision was deficient as it failed to address affordability, this being a mandatory requirement in assessing reasonableness to continue to occupy, but was nonetheless minded to find the Appellant to be intentionally homeless. The letter went on to say that affordability would be considered prior to the conclusion of the review.

Lambeth made some futher enquiries about affordability, then, without putting the findings to Ms S for comment, reached the final review decision.

The appeal point was that Lambeth had not complied with Reg 7(2) as they had failed to notify Ms S at any time as to the reasons why they were minded to find against her, despite identifying the lack of address to affordability as being the deficiency in the original s.184 decision.

Ms S argued that this ground was unanswerable as, per Mitu v Camden LBC (2011) EWCA Civ 1249 (our note), compliance with Reg 7(2) is not optional.

Lambeth argued that any failure to comply with Reg 7(2) in this instance was a technicality concerning affordability, which was not an issue in the case and so didn’t affect the fairness of the review.

Lambeth also argued that the Court is entitled to confirm a decision where it is satisfied that a properly directed authority, which did not make the same error of law, would have inevitably reached the same decision – Ali and Nessa v Newham L.B.C. (2002) HLR 20.

The Court held that Reg 7(2) was a procedural safeguard. On that basis the failure to comply with the requirements was indeed an unanswerable ground of appeal, as it was a clear point of law that was plainly not complied with.

Appeal allowed.

Our thanks to Sioned Roberts of Hodge Jones & Allen for the note of the decision.

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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