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.