Jan Luba: homelessness dispute resolution & tips for reviewing officers

20.04.2017

His Honour Judge Jan Luba QC recently delivered the first Bryan McGuire Memorial Lecture. He chose Dispute Resolution in Homelessness as his subject.

A transcript of the lecture is available on Cornerstone and Garden Court Chambers' websites.

Opaque

The lecture's central theme is that we don't know how effective the methods of resolving homelessness disputes are. This is quite simply because no statistics are published about the ways in which homelessness decisions are challenged.

The statistical gap that's most regrettable is surely the absence of data about the thousands of requests made each year for a homelessness decision to be internally reviewed under s.202 of the Housing Act 1996.

This would be easy for the Department for Communities and Local Government to rectify. They could simply add indicators to the P1E quarterly return.

Well chosen indicators would add much needed transparency to issues such as:

  • the number of homelessness decisions challenged in this way
  • the types of decisions reviewed
  • the proportion of decisions overturned, and
  • the proportion of reviews completed in good time.

The need for transparency was underlined by data obtained by Inside Housing back in 2011. They found that on average 42% of initial homeless decisions were overturned on review by the English councils who responded to their survey.

More worryingly they also found very wide variations in 'success rates'. The percentage of reviews overturned by councils varied between 7% and 65%. This suggested very poor decision-making on initial homelessness decisions by some authorities, even when taking into account factors such as late receipt of information, changes in circumstances and the exercise of discretion in the applicant's favour at review stage.

Hopefully the DCLG will consider this gap when reviewing what data councils must provide, ahead of the Homelessness Reduction Act 2017 amendments coming into force. The Government's response to the CLG Select Committee reports on homelessness confirms that a cross-Government Homelessness Data and Analysis Working Group has been established to improve homelessness data (see para 11).

Jan Luba suggests that, in the absence of statistical releases, academic research should be undertaken. He points out that the last such research was undertaken by Cowan et al in 2003.

Ignorance of right to review

Interestingly, two of the findings from the Cowan et al research was that only a small proportion of negative homelessness decisions are reviewed and that many applicants don't even appreciate they have a right to review (despite being informed in writing).

Homelessness managers who wish to address this lack of knowledge and adopt a more informative approach might be interested in my summary of the review process for applicants which can be adapted for use as a guide or webpage.

Suggestions for reviewing officers

Anyway, back to Jan Luba's lecture.

In 2015 he was appointed as a circuit judge. He sits at the County Court at Central London. In his lecture he shares some observations on s.204 homelessness appeals, aided by the fact that for six months he case managed all (although didn't hear all) appeals at the court.

At paragraphs 105 to 110 he helpfully makes five suggestions for those undertaking s.202 reviews. If you review homelessness decisions it's worth reading at least this section.

But since his observations deserve to be circulated as widely as possible to reviewing officers I've summarised them below:

  1. Use paragraph numbers and page numbers in review decision letters. This makes them much easier to navigate (including for advocates and judges on appeal).
  2. Proof read your decision letters. Many seen by HHJ Luba were poorly expressed, and contained typos and factual errors. This reflects poorly on the authority, and creates an impression that deflects attention from what might otherwise be a well-reasoned decision.
  3. Include the name and contact details of the authority's solicitors or legal department on whom any appeal would need to be served. This will avoid appeals being directed to the wrong place (e.g. to the reviewing officer) which can cause delays and avoidable costs.
  4. At the end of the review decision letter indicate that you would welcome advance notice from the applicant's legal representative of any anticipated appeal (there is no homelessness pre-action protocol or requirement on an applicant to give notice before appealing). This enables your legal department to advise you before an appeal is issued. Considerable savings are made when cases are conceded at this stage (including when you agree to quash and re-take the review decision).
  5. Where appeals are made that plainly lack merit local authorities should consider making representations to the Legal Aid Agency about reversing their grant of legal aid. While the LAA don't appear to publish guidance on making such representations the Scottish Legal Aid Board's Guidance for opponents in civil legal aid cases is worth referring to.

All good advice. I'll be quietly amending my homeless review decision templates shortly.. (but only to address a couple of the above points!)

The lecture also includes suggestions for solicitors conducting homelessness appeals (at paras 106 to 123).

It isn't too long and, as with anything written by Jan Luba, it's well worth a read.

Make a donation

The lecture was held to raise funds for various homelessness charities, namely Z2K, St Mungo’s, The Lodge at St Ursula’s and the Church Housing Trust.

You can donate using the above links.

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