Section 202 reviews, Reg 7(2) and explaining the substance of homeless applicants' rights

16.07.2018

A new Court of Appeal judgment has clarified an issue about the contents of 'minded to find' letters issued under Regulation 7(2) of the Homelessness (Review Procedure etc) Regulations 2018.

In fact Kamara v Southwark LBC [2018] EWCA Civ 1616 concerned three homeless reviews that were completed under the previous regulations. However, I'll refer to Reg.7(2) rather than the former Reg.8(2). There are no significant differences between them for present purposes.

Roy Lichtenstein pop art style cartoon: "Pssst...! You can meet the review officer!"

Should homeless applicants be explicitly told they can meet the reviewing officer in person?

Council officers responsible for reviewing homeless decisions will be aware that a statutory procedure is invoked where:

  • the reviewer considers there is a deficiency or irregularity in the original homelessness decision (that is under review) or in the manner it was made, but
  • the reviewer is nonetheless minded to make an adverse decision.

If this is the case the applicant must be notified. The notification must confirm:

  • that the reviewer considers there was a deficiency or irregularity in the original decision
  • that the reviewer is nonetheless minded to make an adverse decision
  • the reasons why
  • that the applicant (or someone acting on their behalf) may make representations to the reviewer, and
  • that those representations may be made orally, or in writing, or both orally and in writing.

This is known as the Reg.7(2) (formally the Reg.8(2)) requirement.

Reviewing officers will no doubt also know about the previous case of Makisi v Birmingham CC [2011] EWCA Civ 355 (or at least be aware of its effect). Birmingham City Council had had a practice of refusing to meet with homeless applicants at this stage in the process. Rather they insisted on oral representations being made by telephone.

The Court of Appeal held in Makisi that the choice as to whether or not oral representations are made during a face-to-face meeting lies with the applicant (assuming Reg.7(2) applies). The applicant may also have a representative to provide advocacy.

While this is often referred to as a right to an oral 'hearing' (reflecting the wording of section 203(2)(b)), the Court of Appeal made clear in Makisi that:

  • The hearing is only "a simple and relatively brief opportunity for the applicant to make oral representations to the review officer".
  • The reviewing officer is able to decide where and when the hearing takes place, and the procedure to be followed, including finding out in advance who'll be attending.
  • The applicant has no right to call or cross examine witnesses.

And clearly, if the applicant consents to a telephone call, or if they don't take up the opportunity to make oral representations, no meeting is necessary to ensure compliance.

Failure to comply

The Reg.7(2) requirements are mandatory. So a council who fails to comply with Reg.7(2) can't argue that this was of no consequence, for example because the applicant had an opportunity to make submissions in any event and wasn't prejudiced by the council's breach (Lambeth LBC v Johnston [2008] EWCA Civ 690).

Therefore, if a council fails to send a 'minded to find' letter or meet the other Reg.7(2) requirements, there is an error of law in how the decision was reached. The review decision can then be appealed to the county court, under section 204 of the Housing Act 1996.

Kamara

So, what was the issue in this most recent case?

The respondent councils in Kamara had, in three separate cases, conceded during the review process that there was a deficiency or irregularity in the original decision.

They had sent a 'minded to find' letter as required by Reg.8(2). The letter explained that the applicant could make further representations in writing or orally.

The explanation in the letter about the applicant's right to make oral representations mirrored the wording of the review regulations. However, the regulations (both old and current) do not state that the applicant must be informed of the right to make representations 'in person'.

So the councils had not explicitly stated that the applicant could make oral representations at a face to face meeting, should they wish to do so.

Now you might think that such a practice is rather unhelpful. Particularly given that most homeless applicants rely the council to explain their legal rights.

However, to be fair to the councils involved, all three applicants had the benefit of legal representation during the review process. Their lawyers would (or should) have known that a face to face meeting could be requested.

None did so.

Narrow issue

The narrow issue which the Court of Appeal had to decide was:

...whether the letter must specify in terms that the applicant (or a representative) may make representations to the reviewer orally at a face-to-face meeting
Para 1

In the event the court did not allow the appeals. Patten LJ stated:

Although, as is clear from Makisi, the right to make oral representations may be exercised at a face-to-face meeting, that is evident from the language of regulation 8(2)(b) itself. Like Etherton LJ, I consider that the most obvious meaning of that phrase is one which connotes some kind of meeting or hearing at which the applicant or his representative can make their points in response to the minded-to letter. It is not necessary to expand the scope of the notification in order for an applicant or his advisors to understand that.
Para 26
I am not...persuaded that it is either necessary or correct to interpret regulation 8(2)(b) in a way which requires the reviewer to spell out the effect of the decision in Makisi. That would require words to be read into regulation 8(2)(b). There is certainly nothing in Makisi itself which is supportive of that argument and the administrative context in my view favours a literal construction of the regulation. This is supported by the 2006 Code of Guidance published by the Secretary of State under s.182 HA 1996...
Para 28

The court observed that if the requirements of Reg.7(2) are reproduced verbatim in the 'minded to find' letter, this:

...provides a simple, certain instruction which, if followed, informs and allows the applicant to elect to make his representations in the way he finds most convenient. There is nothing obscure or unfair in that process.
Para 27

Consequently the obligation is simply to notify the applicant:

that the applicant, or someone acting on their behalf, may, within a reasonable period, make oral representations, further written representations, or both oral and written representations.
Homelessness Code of Guidance for Local Authorites (June 2018), para 19.20

Wider issue

Reviewing officers therefore have a choice how to word this particular aspect of their 'minded to find' letters.

Fair enough you might think. And this is certainly not the most earth-shattering homelessness judgment.

What I find interesting about this case though isn’t the narrow legal question of how the regulation should be interpreted.

Rather, it makes we wonder about the wider issue of how open and transparent we want to be when it comes to explaining the application process to homeless people?

Are we genuinely in the business of helping homeless persons? And do we recognise the potential, if we don't take steps to explain the nature and extent of their legal rights, for applicants to be denied the help to which they are (or might be) entitled?

The irony of Kamara is that most homeless applicants don't exercise their right to a hearing, even when they're explicitly offered a face to face meeting.

In these circumstances I find myself asking:

why wouldn't you want to make it absolutely clear that a homeless person can ask for a face to face meeting?

Making every effort

I suggest we should be making every effort to communicate to homeless people and those at risk of homelessness - using a variety of methods - what their rights are and how they can effectively exercise them.

In this context it's welcome that councils' general advice duty was strengthened on 3rd April. The amended section 179 of the Housing Act 1996 requires homelessness advice services to provide information and advice on peoples' rights and the council's duties under Part 7 of the 1996 Act.

Council's must also provide information and advice on what help is available in its district to homeless people (or those at risk of homelessness) from other agencies.

This raises the question of whether councils are helping applicants obtain independent advice.

If you've downloaded any of my letters for councils you may have noticed I've included sections on how people can obtain independent legal advice.

Now I know some council managers use my letters but prefer not to include this particular information. Fair enough. But it's worth asking ourselves - particularly when the homeless application process has just become more complex - what action we're taking to help applicants understand and navigate the system.

If you're familiar with people in housing crisis you'll know that most homeless applicants don't fully understand the system (even after it's been explained to them). Many aren't able to effectively make their case without a legal advisor or advocate.

Choice

Put simply, statutory services have a choice about how open and transparent they are. And there's no valid reason to take a restrictive approach when the information we give can make the difference between applicants accessing settled accommodation and an extended period of homelessness.

And an open and informative approach when it comes to legal rights doesn't just benefit the applicants. It also helps foster a culture that encourages staff to administer the homelessness safety net in a fair and lawful way.

Need a review letter?

If you conduct s.202 reviews you may wish to have a look at my review letters (Welsh versions here). They include, incidentally, a 'minded to find' letter which clearly explains at the outset the applicant's rights in connection with making further representations (Welsh version available here).

The letters are free to download if you've created an account with a council or RP email address.

I'm hoping to post another blog entry shortly listing all of my s.202 review letters.

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