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Falis Ibrahim v London Borough of Wandsworth [2013] EWCA Civ. 20

David Lintott successfully appeared for the Respondent local authority. The Court of Appeal has dismissed the Appellant's appeal and held that the Respondent local authority had not acted in breach of Regulation 8(2) of the Homelessness Regulations.

Upon an application being made under Part 7, Housing Act 1996, the local housing authority  must determine whether the applicant is homeless, eligible for assistance, has a priority need and has not become homeless intentionally. At that point they have a duty to secure that accommodation is available for occupation by the applicant (unless they refer to another authority) (s.193(2), Housing Act 1996).

The local housing authority must make an initial decision on what duty is owed (if any) under s.184. On reviewing that decision, Regulation 8(2) of the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999  provides that the reviewing officer must consider whether there is a deficiency or irregularity in the original decision. If minded to make a decision against the interests of the applicant on one or more issues  in spite of such a deficiency, the reviewing officer must notify the applicant that he is so minded and the reasons why, and that the applicant may make representations (orally or in writing or both).

The applicant has the right to request a review of any decision of a local housing authority as to what duty, if any, is owed to him under s.193, 1996 Act (s.202(1)(b), 1996 Act). If the applicant is dissatisfied with the decision on review, he may appeal to the county court on a point of law (s.204(1), 1996 Act). "Point of law" includes the full range of issues which would otherwise be the subject of an application to the High Court for judicial review: Begum (Nipa) v. Tower Hamlets LBC [2000] 1 W.L.R. 306; (1999) 32 H.L.R. 445.

Facts

The appellant, a Somali national with three dependent children, was evicted from private rented accommodation at the conclusion of an assured shorthold tenancy because, or so her landlord alleged, she had failed to pay the first eight weeks' rent. Since during those eight weeks she had received the full amount of rent in housing benefit (from then on payments had been made direct to the landlord), her failure to secure renewal of the tenancy was considered by Wandsworth, the Respondent council, to be her own fault, with the result that she was now intentionally homeless.

The original decision letter, dated 8th April 2011, spelt out in detail the council's reasons for considering the applicant to be intentionally homeless. However, under s.190(2) the council had an obligation to her, as a person with priority need because of her dependent children, to secure that accommodation was available to her for such period as they considered would give her a reasonable opportunity of securing accommodation for herself. The letter did not state this but the Respondent local authority did not act on the decision letter; instead, by letter of 3 May 2011, it had agreed to provide interim accommodation pending the review, and it has continued to provide such accommodation pending appeal first to the county court and now to the Court of Appeal. In real life, in other words, no detriment at any stage flowed from the error in the decision letter. The review decision correctly stated the Respondent's obligation under s.190(2) and on appeal to the county court under s.204, Judge Redgrave held that the reviewer had been entitled to conclude that the misstatement in the decision letter:

"was not of sufficient importance to justify engaging regulation 8(2). The issue between the parties was whether the appellant had made herself intentionally homeless, not whether the local authority had a duty to temporarily rehouse her. In the circumstances, where the appellant was being temporarily provided with accommodation, the reviewer's failure to engage regulation 8(2) was not unreasonable."

Court of Appeal

The appeal was dismissed. Although unanimous Lord Justice Mummery at [44] in essence agreed with Lord Justice Etherton's analysis as to why the appeal should be dismissed. At [34] Lord Justice Etherton held as follows:

"34. I would approach the appeal in three stages.  First, it is necessary to consider whether the deficiency or irregularity relied upon as falling within Regulation 8(2) was one which related to a relevant decision.  A relevant  decision is one which was adverse to the applicant and which the applicant wished to challenge by way of review.  Secondly, if there was such a deficiency  or irregularity, the reviewer was obliged to consider whether the deficiency or irregularity was of sufficient importance to engage the duty of the reviewer to notify the applicant as provided in Regulation 8(2)(a) and (b).  Thirdly, if the reviewer failed to carry out that exercise, or decided that the deficiency or            irregularity was of insufficient importance to engage that duty, then that failure or that decision was only challengeable by way of an appeal under section 204 on judicial review principles."

Having stated that in the present case, two decisions were made: (1) that no duty was owed to the applicant under section 193(2) as a person with priority need and who was not intentionally homeless; and (2) that the council's duty to the applicant as a person in priority need but intentionally homeless was limited to providing advice and appropriate assistance to enable her to find her own accommodation, and having further noted that the deficiency or irregularity relied upon on this appeal was that decision (2) was wrong, he continued:

"36. It is true that that decision was wrong since it did not correspond with the council's legal duty under section 190(2)(a) (to secure that accommodation was available for the applicant's occupation for such period as the council  considered would give her a reasonable opportunity of securing  accommodation for her occupation).  That decision, however, was not a  relevant decision for the purposes of Regulation 8(2) since (1) it was not the subject of any complaint by the applicant about the decision letter on the  review; (2) it was not a decision which the reviewer upheld; and (3) the reviewer did not make any decision on the same matter against the interest of   the applicant, but, on the contrary, stated the council's duty correctly.  Accordingly, Regulation 8(2) was not engaged, and that  is the end of this appeal."

Lord Justice Etherton went on to also hold that, in any event, at the second stage the reviewing officer would have been bound to conclude that there was no requirement to serve notice under Regulation 8(2) and there would have been no scope for a challenge under section 204 [37]-[39]. Sir Stephen Sedley held at [28] given that the appeal was in substance a judicial review, and applying the dicta of Lord Neuberger in Holmes-Moorhouse v Richmond-upon-Thames LBC [2009] UKHL 7 at [50]-[51], any failure to address the deficiency in the original decision was irrelevant to the outcome of the review and the Judge was right to confirm the review decision.