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By J
11/11/2021

Review or repetition?

There is always a danger in reading too much into a Westlaw note of judgment and, as we all know, context is everything, but even allowing for that, the decision in R (Bereket) v Waltham Forest LBC QBD, 4 November 2021 (Westlaw note only) looks like a very mean decision to me and one I firmly hope is appealed.

Ms Bereket applied to LBWF for homelessness assistance. The authority accepted that it owed her a duty and offered her temporary accommodation in Luton. She rejected the offer as it was too far from her friends and family. The local authority explained why the property was suitable and gave a deadline for acceptance. Ms Bereket refused it again for the same reasons. The authority then decided that their duties had been discharged. She was told of her right to a review and, in a subsequent telephone call, was told the email address to use in order to request a review. She duly wrote to that address. Her email did not refer to any review but explained why the property was not suitable by reference to her need to stay in the local area (including, now, that her son had started school).

The LA decided this was not a request for a review and she sought judicial review. The issue, therefore, was whether there had been a request for a review.

The High Court found for the local authority. Whether the email amounted to a request for a review depended on its substance. There was no request to reconsider the decision; there was only a list of reasons why she was refusing the Luton accommodation.

 

Comment

I must say, that seems like a harsh decision to me. The purpose of giving all the reasons why Luton was rejected was, surely, to ask the LA to think again. What is that if not a request for a review? I hope this goes on appeal.

J is a barrister. He considers housing law to be the single greatest kind of law known to humankind and finds it very odd that so few people share this view.

16 Comments

  1. Elliot Kent

    Of course, as we are often told, review officers are not lawyers and it would be terribly unfair to be overly pernickety in analysing the words they have used to express themselves rather than the substance and intent they were aiming at. Evidently not a principle which goes both ways…

    Reply
  2. Ron Platt

    I agree with Mr. Kent. However, Ms. Bereket was given an email address to which she was supposed to submit a request for a review. The LA has found a way by sticking to the true meaning of “request a review” meaning exactly that and the High Court has concurred. Personally, I have a problem with what I call “misuse” of the English Language. By that I mean a Person not addressing the true meaning of the words making up a sentence. “Request a review” cannot in any way be construed to mean “tell us your reasons for refusing the Luton accommodation” and then expect us to interpret that as a request for a review. I will be interested to see the result of an appeal if there is one. Is Ms. Bereket, now, prevented from requesting a review?

    Reply
    • J

      ah, but context is everything. You’re supposed to take a generous approach to reading review requests: Nzamy v Brent LBC [2011] H.L.R. 20. So I come back to the critical point. Having been told that you write to X to seek a review, why on earth would you be writing to X *unless* you wanted a review?

      Reply
      • Paula Oligbo

        I completely agree with J, otherwise why else would she have sent the email to that address.

        Reply
  3. MJR

    Some authorities use dedicated e-mail addresses for the sole purpose of submitting s.202 review requests. I wonder if this was the case here? If so what other purpose would Ms Bereket have had in sending an e-mail to the address given, other than to make a request for a review? Of course if it was a more general e-mail inbox dealing with a range of queries this may not be relevant but just a thought.

    Reply
    • J

      The Westlaw note says it was an email address she was given for the purpose of requesting a review.

      Reply
      • Peter

        I find this approach of Waltham Forest Council asking them to send an email just another trap, because it is so open ended and expects the applicant to know what is expected of them. This is similar to when as part of a gatekeeping strategy Councils told applicants they had to provide medical evidence when in fact it was the Council’s duty to take them in and assess them, collecting evidence with the applicant’s consent.

        It seems to me that the applicant did what they were told to do.

        I would not object if a dedicated email address was connected to a zendesk type system where the case is never closed until the applicant confirms it is closed.

        Such a system could have an automated message that advises of their rights and gives them a link to a page to complete within a given time frame.

        The page should ask questions in such a way that is not ambiguous and makes it easy for the applicant to state the basis for their request for reconsideration.

        The case officer should then advise them in easy to understand plain English why the case was declined and tell them what they would need for the reconsideration to be successful.

        The Council has her email address, they had told her to email that email address, they knew the status of her case, they knew to what she was referring

        Imagine you receive such an email and it says

        “The property is not suitable because I need to stay in the local area because because this is where I have a local connection, support from family and friends who I need to help me in childcare so I can work and especially because my son has started school, a move to Luton would affect his social connections at this fragile age.”

        Are we to believe that the Council thought this was an enquiry about a bus pass or refuse collection?

        They knew her email address, she existed in their systems and it would have been apparent that this was a request for a review.

        It is surely the duty of Waltham Forest Council to show reasonable care and skill as the professional organisation they are (supposed to be).

        Reply
  4. Egle

    It’s interesting that the professional had no capacity during the phone call to summarise conversation & send that email. On the other hand, it’s a challenge to convince people that it’s in their best interest to move away from bad influence “family & friends”.

    Reply
  5. Peter

    Hi Giles, I find this behaviour by Waltham Forest Council simply disgusting, especially when the front page of their website talks about a fair deal.

    It somewhat ironic that an applicant has to show they have a local connection to make a claim in the first place but the Council feel it is OK to dump someone in a completely different place where they have no local connection, friends or family.

    Giles, I wonder what would happen if you were to write to Waltham Forest and ask them to email Ms Bereket to inform them you will be handling their appeal free of charge.

    Councils need to know that there is a consequence to their actions and if they knew that every time they behaved in this despicable way there would be a legal challenge all the way to the Supreme Court then maybe they would stop denying homeless people the most basic thing.

    Reply
    • Colm

      Hi Peter, having a local connection is not a requirement to making a homelessness application, though many Local Authorities would seem to prefer that applicants continue to believe this falsehood. Generally, once the LA has determined that a Relief or Main duty would be owed, then they can look at whether conditions exist to refer the application to a different LA where a local connection may exist. Of course this means making the necessary investigations to get to the point of determining an application, which is probably why this “gatekeeping” still exists…

      Reply
  6. Carl

    A request for a review need not be in writing (although it is clearly advisable). In the light of that, why was the telephone call when she requested a review, and was asked to put the details in an email, not treated as a request for a review?

    Reply
    • Giles Peaker

      Nothing in the report suggests she called to request a review, or that that was the content of the telephone call.

      Reply
  7. Ron Platt

    This is where the way a Person is “trained” in interpreting the uttering of another Person. I have a frienemy who usually interprets my utterings into something else. It is as if the frienenemy is thinking that I have some ulterior motive. I, therefore, frequently get an answer that is, to me, babble. Can be frustrating for both of us. I imagine that is/was Ms. Bereket’s feelings after the Judgment.

    Reply
  8. Egle

    Ron, well said & I love this term “frienenemy”.

    Reply
    • Ron Platt

      Thank you, Egle. There is another word I use for “enemy” which requires the loss of the “y” and its replacement with an “a”.
      I digress. This is a very interesting matter for me because it reinforces my belief that communication by email is of prime importance in all cases. A belief I have had for 2½ decades and have practised it. I, now, have an additional “proof” a 360° camera. I trust nobody to repeat utterances made. Therefore, I ensure that I and others speak the truth. In this case, a “report” that Ms Berekat was told to “request a review” is merely that. Has anybody provided evidence in the form of a recording of the conversation. The Court should have requested that as evidence. I do not like this policy of not requiring absolute proof in the County and High Courts. If that evidence was/is not available then Ms. Berekat’s submission should have been treated as a “request for a review”. Another argument for the use of email is “continuity”. Organisations like to avoid email because it can break the “continuity” of the “conversation”. Use of voice communication achieves that very successfully.

      Reply
      • Giles Peaker

        There was a letter informing her of her right to request a review. And I’m afraid your view on standards of proof in civil proceedings is neither here nor there. It is balance of probabilities.

        Reply

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