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Time to respond to ‘minded to’ letters, and getting affordability right


Our grateful thanks to Alice Irving of Doughty Street Chambers for this note of a section 204 appeal decision, which is interesting in the approach to representations in response to ‘minded to’ letters, to affordability assessments and on the timing and role of skeleton arguments in s.204 appeals.

Tapper v Royal Borough of Kingston upon Thames (unreported, 4 January 2022, County Court at Central London, HHJ Parfitt)

This was a section 204 Housing Act 1996 (‘HA 1996’) appeal against a review decision finding that the Appellant was intentionally homeless.

The Appellant had previously occupied a property provided by the London Borough of Richmond pursuant to the main housing duty under section 193 HA 1996. The Appellant lived there with his two dependent sons. The rent was £268.47 per week and paid for by housing benefit.

In September 2015, the Appellant’s housing benefit was suspended after it was reported by the Jamaica High Commission that he had paid a deposit for a property in Jamaica. The Appellant denied this and stated his name had been used for the transaction by someone else. However, the Appellant was unsuccessful in having his housing benefit reinstated. Further applications in 2016 and 2017 were also refused. Significant arrears accrued and in October 2019 the Appellant was evicted from the property. He became street homeless, and his children went to stay with a friend.

In April 2020, the Appellant applied to the Respondent for homelessness assistance. In December 2020, he was notified that he had been found to be homeless, eligible and in priority need, but intentionally homeless. Thereafter, there was a dispute as to whether a request for review was made in time, and judicial review proceedings followed. A review was finally completed on 4 April 2022 which upheld the decision the Appellant was intentionally homeless.

The Appellant challenged this on appeal on two broad bases:

  • Breach of reg 7 of the Homelessness (Review Procedure etc) Regulations 2018/223 and/or procedural unfairness

The review had taken a long time, with both sides seeking and agreeing extensions. A reg 7 ‘minded to’ letter was issued on 17 March 2022. The reviewing officer requested any further representations by 28 March 2022. She refused a request for an extension to 1 April 2022. In the event, submissions were provided on the morning of 4 April 2022, and the review decision issued that afternoon. The reviewing officer did not consider the representations. The Appellant argued this was a breach of reg 7 and/or procedurally unfair.

HHJ Parfitt held that the question he had to determine was whether the Appellant was effectively deprived of the right to respond to the ‘minded to’ letter by the procedure which the reviewing officer insisted upon.

He held that the limited time given to respond rendered the important reg 7 procedural safeguard less valuable than it should have been. In the circumstances, the bare minimum period for response that should have been provided was 14 days. Further, the submissions were received before the review decision was issued. The reviewing officer should have considered them before issuing the decision. On this basis, the appeal was allowed.

  • Legal error and/or irrationality

The Appellant raised several other grounds, including legal error in the assessment of affordability, breach of s.11 Children Act 2004 and breach of s.149 Equality Act 2010. What they all boiled down to was a criticism of the approach taken by the reviewing officer in focussing on the loss of housing benefit in 2015. She stated that because the property was affordable with housing benefit, it was reasonable to continue to occupy. Further, the Appellant’s disability (depression) which arose in 2018 and his childcare responsibilities, which prevented him from working more hours, were not relevant. The disability arose after the Appellant lost housing benefit and his childcare responsibilities would not have been an issue if he had continued receiving the benefit.

The Appellant submitted that this was wrong. The reviewing officer had made an express finding that the Appellant’s housing benefit had been correctly stopped. That is, she found that the Appellant was not entitled to housing benefit. Accordingly, in determining affordability the reviewing officer should not have taken into account housing benefit. In turn, this meant that the Appellant’s later disability and his childcare responsibilities were relevant and should have been considered.

HHJ Parfitt accepted this argument. He distinguished this case from cases where benefits are refused due to a lack engagement or failure to provide information that is requested. This was not a case where the applicant was entitled to a benefit (or might have been) but had failed to access it. It was a case where the reviewing officer had concluded the applicant was not entitled to housing benefit.

Consistently with this, the reviewing officer should have considered affordability and the other aspects of the case on the basis that the Appellant was not entitled to housing benefit. Instead, the reviewing officer’s analysis was framed on the basis that he was so entitled – for example, she concluded the property was affordable because it had been when benefits were in payment. That was wrong. The appeal was allowed on this basis also.

This case is also useful for a procedural point. The Respondent had served their skeleton argument exceptionally late. It was due in mid-September, but served on 28 December 2022 when the hearing was listed for 4 January 2022.

Relying on R (Liberty) v SSHF [2018] EWHC 976 (Admin), the Appellant argued that an application for an extension of time for a skeleton argument is akin to an application to relief from sanctions, and subject to the Denton/Mitchell principles. HHJ Parfitt agreed. He also observed that a formal application for an extension of time should have been made. He allowed an oral application at the hearing.

The Defendant accepted that the breach of directions was serious and there was no good reason for it. However, they argued that the lateness of the skeleton was not significant in the circumstances. HHJ Parfitt rejected this. He observed that in section 204 appeals, skeleton arguments are frontloaded. They ensure visibility of what the case is about, so that further evidence can be filed if necessary and settlement negotiations are possible. They are not like skeleton arguments just before trial in a case where there have already been pleadings. Skeleton arguments are very important in section 204 appeals.

HHJ Parfitt considered that the natural way of dealing with any potential prejudice to the Appellant caused by the late skeleton argument was to adjourn the hearing, but the Appellant did not want this given the already significant delay in the case. HHJ Parfitt rejected the argument that the Respondent should not be able to rely on their skeleton argument or participate in the hearing. Instead he ordered that the Respondent should pay the costs of the appeal, in any event. He noted that the disruption to the Appellant’s preparation caused by the late skeleton needed to be marked as significant. As to how parties in these appeals conduct themselves in future, he observed that respondents should not ignore directions for skeleton arguments without serious consequences arising.

The Appellant was represented by William Ako of Burke Niazi and Alice Irving of Doughty Street Chambers.


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.


  1. Todd

    It’s odd to see the HB disentitlement dealt with in a vacuum as though it were a primary fact. We don’t know the full facts of course, but on the basis of the available information, the applicant’s disentitlement to HB appears to be a corollary of the fact that he has at least £16k in capital available to him by reference to his interest in the Jamaican property. That seems to be quite relevant to any consideration of affordability.

    • Giles Peaker

      This misses the point entirely.

      The review officer had decided affordability on the basis that applicant could afford the property if getting housing benefit. But the review officer also found it was correct that he wasn’t entitled to housing benefit (for whatever reason – that is beside the point). So that was not the correct approach. What should have been considered was whether the applicant could afford the property in their actual position – not being entitled to HB. The review officer was having their cake and eating it, without any analysis of what the applicant’s actual position was, (so the alleged failing you complain of was the council’s failing).

      As to the alleged capital in a property in Jamaica, that was and apparently remains denied by the applicant. There was no finding that he was not homeless by reason of having a property elsewhere he could occupy, so obviously the council could not establish the supposed deposit for/ownership of a property in Jamaica either.

      • Todd

        I’m not supporting the reviewing officer’s approach. I am saying that their incuriosity as to the implications of what it meant to say that the applicant was disentitled to HB led them down a wrong path. HB (dis)entitlement isn’t just some arbitrary fact – it’s a consequence of a person’s actual position.

        The two scenarios, broadly were either that the applicant had the capital or he didn’t. If he had it, then it followed both that he didn’t qualify for HB but also that he had access to capital – from which he could have paid his rent (at least until it reduced, at which point he would be once again entitled to HB/UC). If he didn’t have it, then he was actually entitled to HB all along and the issue of affordability needn’t come into it as his homelessness is simply the result of erroneous decision making by the LA’s HB department.

        I’m suggesting therefore that the reviewing officer should have found that the applicant was disentitled to HB because of his having access to substantial capital – and that because of having that capital, which could have been applied to the rent, the property was affordable.

        If the reviewing officer was not able to properly reach that finding on the evidence, then that seems to undermine all the HB decision making, because these sort of issues are ones which the LA has the burden of proving.

        • Giles Peaker

          Again, if the applicant proveably had the property in Jamaica, then that should have come in at the homeless decision stage. Having found the applicant was homeless, that was by the by.

          But even assuming that it was the case that the applicant had some capital in a Jamaican property (which was denied), that could not be part of an affordability decision without assessing the position on that – could it be extracted and used to pay rent, for example. Were these the applicant’s funds or on trust for someone else?

          Have you dealt with the quality of HB decision making much?

          But again, you are missing the issue with the reviewing officer’s approach and therefore why the decision was quashed on appeal. A s.204 appeal is not for re-deciding the facts – it is expressly not and can’t be for that. So when you evince surprise that the court didn’t consider affordability further on the facts, that is precisely not the role of the court on a s.204 appeal. The sole issue is the lawfulness of the review decision. Here the review decision was badly flawed in its approach to affordability. So that was the end of it. There will have to be a fresh decision by the LA.

          I don’t think your view on what the review officer should have considered adds much to the judgment, save for further adding to the point that the decision was wrong in law.

  2. Todd

    I am not “missing the issue”. I understand what a s.204 appeal is. I understand the logic of the CJ’s decision which is of course coloured by the way that the reviewing officer’s decision was (erroneously) framed. I am exploring a tangent which I found interesting. I hadn’t expected that to be quite so irksome.

    The various points about trusts, inaccessible capital etc. are all matters which ought to have been considered in the HB decisions. If they were not, they could have been appealed at the time or any time revision could be sought even now. Alternatively, bad HB decision making leading to arrears is surely a point that could have been taken on review.

    • Giles Peaker

      Irksome? You were criticising the judgment for not addressing something that it couldn’t address. Then offering a wholly speculative alternative version of the review decision based on assumed facts (and facts not given in the note of judgment, which inevitably suggests that you have had involvement in this specific case that you are not disclosing).

      And you assume the basis and facts of the HB decision. Again, do you want to declare your involvement?

      • Todd

        This is bizarre. My opening comment was to the effect that I thought it was “odd” that the case had proceeded on the basis that it didn’t matter why HB was refused when the refusal of HB seemed to go to the question of affordability. That was a fairly anodyne comment not aimed at anyone in particular, but as you have pointed out it was critical of the review officer if anyone, because they were the ones who decided to proceed in that way.

        In between half a dozen ways of you then saying I don’t know what I am talking about in so many words, you have ascribed all kinds of positions to me which I never expressed and now it is culminating in a baseless allegation that I am “inevitably” involved in the case.

        No I am not involved in the case. And if I was, I am sure that I would try to come up with a better defence of the council’s position than “isn’t a small part of that secondary ground of appeal a little bit weird?”

        I do appreciate your blog Giles but I think I’ve had my head bitten off for no good reason here. Next time, I will keep my thoughts to myself.

        • Giles Peaker

          Todd – I apologise sincerely. It was a long, busy day and my head stopped working (particularly on the involvement bit – forgot that you were referring to the capital thresholds with the £16K, not an actual amount).

          I think we were at cross purposes from ‘the case had proceeded’ – if you meant by ‘case’ the homeless application decision making, as I read it as referring to the appeal case.

          But the affordability ground of appeal wasn’t weird at all. It was, I think, quite right based on what the review officer had done/decided/found.

          Any failure to consider the alleged capital amount happened as an omission in decision making earlier on, and so not part of the appeal.

  3. Todd

    Thanks Giles, I understand and know the feeling. I hope you are well and have had a better day.

    And yes I agree with all of that! I could have been much clearer that I was going off on a tangent and not really talking about the appeal decision as such.


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