Watch your steps

22.09.2017

I regularly train staff on how to carry out reviews when homeless applicants ask for decisions to be reconsidered under section 202 of the Housing Act 1996.

Banana skin

Nowadays the training absolutely has to cover the public sector equality duty and when a "minded to" letter must be sent to the applicant. 

This is because the duties under section 149 of the Equality Act 2010 and the Review Procedure Regulations have become fertile ground for applicants' solicitors when they're challenging homelessness decisions.

Avoiding the pitfalls

When making a decision on someone's homeless application you want of course to make the 'right' decision, i.e. the decision you consider is warranted given the merits of the case and the particular circumstances.

But whether a decision is a 'good decision' in a legal sense depends on whether the decision-maker has avoided making a legal error. An error of law is the basis on which applicants can appeal a review decision to the county court.

In Begum v Birmingham CC [2017] EW Misc 10 (CC) the council made what might appear (certainly to your average homeless officer) to be a reasonable decision. 

This was a homelessness appeal in the county court and so doesn't create any binding precedent. However it illustrates how pretty run of the mill decisions are vulnerable to legal challenge if the applicant can assert that the way in which the decision was made was procedurally unfair or otherwise unlawful.

Regulation 8(2)

When conducting a homelessness review the decision-maker must always (under Reg. 8(2)) consider whether there was a deficiency or irregularity in the original decision, or in the manner in which it was made.

In Hall v Wandsworth LBC [2004] EWCA Civ 1740 it was held:

29. [...] The word "deficiency" does not have any particular legal connotation. It simply means "something lacking" [...] On the other hand, the "something lacking" must be of sufficient importance to the fairness of the procedure to justify an extra procedural safeguard. Whether that is so involves an exercise of "evaluative judgment" [...] 30. To summarise, the reviewing officer should treat regulation 8(2) as applicable, not merely when he finds some significant legal or procedural error in the decision, but whenever (looking at the matter broadly and untechnically) he considers that an important aspect of the case was either not addressed, or not addressed adequately, by the original decision-maker. In such a case, if he intends to confirm the decision, he must give notice of the grounds on which he intends to do so, and provide an opportunity for written and (if requested) oral representations.

After Hall the courts went on to hold that a 'deficiency' may occur even when the original decision did not contain any errors at the time it was made.

In Banks v Kingston-upon-Thames RLBC [2008] EWCA Civ 1443 the applicant was originally found to be not homeless. After this decision, but before the review was determined, the applicant's landlord served him with a notice to quit. The council overturned the 'not homeless' decision on review but decided that a duty to provide accommodation was still not owed as the applicant did not have a priority need. 

On a literal interpretation of Reg.8 (which refers to "a deficiency or irregularity in the original decision") the reviewing officer would not have been required to notify the applicant and invite further representations. 

However the court adopted a broad interpretation. It was held that an important objective of Reg 8(2) was to ensure that where the reviewing officer was minded to confirm a decision for different reasons the applicant should be given an opportunity to make representations.

Accordingly, while the original decision could not be faulted (at the time) it became deficient when the applicant became homeless, in the sense that it did not address the issue of priority need. That deficiency was of sufficient importance to justify the additional procedural safeguards provided by Reg.8(2).

Begum v Birmingham CC

In Begum Birmingham accepted a duty to secure accommodation for Ms Begum because she was unintentionally threatened with homelessness and in priority need.

Ms Begum placed a bid via the council's choice based letting scheme for a three bedroom maisonette. Birmingham subsequently confirmed that the accommodation would be offered as a 'final offer' and so end the homelessness duty.

The accommodation was accessed via stairs. Ms Begum viewed the accommodation and on the same day requested a review, asserting that the maisonette was unsuitable. At this stage the applicant's reasons for requesting the review related to the location of the accommodation, including its distance from her children's school and nursery.

A few weeks later the council notified the applicant that its duty to secure accommodation had ended because she had refused the accommodation, which was considered suitable for her. 

In a subsequent telephone conversation with the reviewing officer the applicant referred to her position as a self-employed single mother, her need to remain close to the school and nursery and a need to retain support from her parents.

A month later the council issued a "minded to" letter. The reviewing officer accepted that there was a deficiency in the original decision in that the public sector equality duty had not been considered. (It is unclear from the judgment precisely why the council accepted that the PSED was engaged).

So, at this stage the council had complied with the requirements of Reg.8(2), which are to:

  • notify the applicant of its view that there was a deficiency or irregularity in the original decision
  • confirm the reasons why it had reached that conclusion, and
  • give the applicant an opportunity to make representations to the reviewer orally and/or in writing.

The applicant replied to the "minded to" letter in writing. For the first time she cited the fact that the property did not have a lift. She asserted that, as she took her three young children out by pushchair and was a single mother, it would have been impossible to access and leave the accommodation while keeping an eye on the children (who at the time of the viewing were aged 4 years, 2 years and 9 months).

Shortly after receiving this letter Birmingham concluded the review. The council confirmed its earlier decision (that the duty had ended because a final offer of suitable accommodation had been refused).

In the decision letter the reviewing officer addressed the applicant's assertions about the lift. It was stated that the maisonette was family accommodation and that there were many other families with young children who negotiate stairs. The decision referred to there being "one flight of stairs". It was pointed out that the eldest child could have negotiated the stairs independently while the applicant carried the baby and held the hand of the other child. It was also observed that the entrance to the building was secure. The applicant could therefore have secured the safety of the children and then collect the pushchair. 

The reviewing officer also referred to the fact that the location of the property was clearly advertised. She was satisfied the applicant knew about the location when she placed her bid.

Appeal

Ms Begum appealed to the county court, primarily on the basis that the council had not complied with the mandatory requirements of Regulation 8(2).

The applicant relied on NJ v Wandsworth LBC [2013] EWCA Civ 1373. NJ applied the principle from Banks and held that the emergence of new or additional facts during a review may expose a deficiency in the original decision. The appellant in NJ challenged a review of a decision that the local connection referral conditions were met. When she applied as homeless the applicant had resided in a refuge for six months that was located in the district of the council to which she had been referred. On this basis the two councils agreed that the applicant had a local connection in the area.

During the review the applicant relied on fresh information, namely that she was now in fear of violence in the district to which she had been referred. As a result she had left the original refuge and moved to a refuge in a third district.

The Court of Appeal acknowledged that the applicant's representations in relation to the risk of violence had been carefully considered by the reviewing officer. However it was held that the reviewing officer had wrongly failed to adequately consider whether the original decision was deficient for not addressing the later events, i.e. the subsequent evidence relating to the risk of violence in the area to which her case had been referred.

In Begum HHJ Grant accepted the applicant's submission that Reg.8(2) governs the review process until the review decision is made. The fact that a "minded to" letter has been issued does not necessarily mean that a further minded letter is not required. Whether a further "minded to" letter is required depends on the particular facts.

Once the applicant had articulated her concerns about the anticipated problems with entering and leaving the accommodation and associated child safety issues the council should have sent a further "minded to" letter dealing with those matters. It was incumbent on the council to offer Ms Begum a further opportunity to make representations before making the review decision.

While the reviewing officer referred to "one flight of stairs" in her decision she had no apparent first-hand knowledge of the physical characteristics of the property. Further, photographs exhibited to the applicant's witness statement showed two flights of around 14 steps, broken in the middle by a landing. Consequently, someone on the higher flight of stairs could not see down to the lower flight.

The point raised by the applicant about access and her own circumstances was not manifestly insupportable or implausible and could not reasonably be considered as such by the reviewing officer, having regard to the all the circumstances of the case. 

The review decision was quashed and remitted to the council to reconsider.

It's the way you do it

This appears to be one of those cases where, following the appeal, the council might have been able to make an adverse decision on the review on the same substantive grounds, i.e. decide that the duty had ended because the accommodation refused was suitable and reasonable to accept in the particular circumstances. 

This serves to reinforce the fact that successful challenges to homelessness decisions are usually concerned with the way in which decisions are made rather than the merits.

The well known and often cited 'Bananarama principle' of public law and decision-making.


(With thanks to Legal Action Magazine for alerting me to the existence of this case).

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