Elbhiri v Royal Borough of Kensington and Chelsea. 9 December 2022. Central London County Court (Unreported – copy of judgment )

This is a s.204 appeal judgment that I have been sitting on for an inexcusably long time, ever since I was kindly sent the judgment. This is particularly inexcusable as it is a very interesting point at issue in this appeal.

The brief background was that RBKC owed Ms Elbhiri the full housing duty following her homeless application. Ms E had been placed in temporary accommodation under s.193 Housing Act 1996. She then sought a review under s.202 of the suitability of the accommodation. The review upheld the suitability of the accommodation and Ms E brought a s.204 appeal.

There were a number of grounds of appeal, but the parties agreed that one should be decided first, as it would be determinative of the appeal as a whole if upheld. This was the issue of whether regulation 7(2) of the Homelessness (Review Procedures etc) Regulations 2017 (the “minded to” provisions) was engaged.

Reg 7(2) requires a review officer to inform the applicant when they are minded to uphold a decision on different grounds to the original decision and to invite representations on this,

Ms E’s case was that on requesting the review, she had made detailed submissions on the detrimental impact of the location of the accommodation on her son, who had a two hour trip to school involving 3 buses,  and incurred the costs of the travel. This was supported by a letter from the school giving details of the impact on the son’s education and mental health. The travel time to school had not, Ms E argued, been considered on her homeless application or in her personal housing plan. It was not until the review – and the new information in the form of the letter from the school – that this was considered.

The original decision that the accommodation was suitable, when Ms E was placed there, was therefore flawed or had a deficiency. The review officer, who had addressed the travel time to school in the review decision, was therefore upholding the decision on different grounds to the original decision.

On that basis reg 7(2) was engaged and a minded to letter should have been sent.

RBKC argued that reg 7(2) was not engaged because there was no original written decision by which the review officer could ascertain the basis on which the original decision was made. There was no requirement to provide a written decision on suitability. Reg 7(2) only applied where there was a written adverse decision.

The Circuit Judge held that while there was no requirement to provide a written decision on suitability, that did not change the fact that a considered decision would ave to have been made by the local authority as to the suitability of the accommodation. There was nothing in Reg 7 that restricted it to where reasoned decisions had been given.

Reg 7(2) was clearly engaged as new facts had emerged on an important issue for suitability – the location of the accommodation. Following the guidance given by Lewison LJ at para 70-71in London Borough of Wandsworth v NJ (2013) EWCA Civ 1373 (our note) in relation to the predecessor version of the regulation, the review officer should have considered whether the new information raised a deficiency in the original decision, which it clearly did, and then whether to issue a minded to letter. That had not happened, so there was a breach of the regulations.

Appeal upheld and sent to the authority for a fresh review decision, with Reg 7(2) in mind.

Comment

This is clearly of significance for a lot of suitability decisions, where new information regarding suitability arises when a s.202 review request is made after the applicant has been in occupation, or where not previously considered.

It suggests that it would be good practice for local authorities to at the least keep a record of factors considered in the original suitability decision.

It also means that review officers on suitability reviews should be alert to this issue and to the potential engagement of reg 7(2), otherwise the review decision is clearly vulnerable.