7th November, 2013 Lewison, Kitchin, Gloster LJJ
David Lintott successfully appeared for the Appellant local authority. The Court of Appeal has allowed the Appellant's appeal and held that the occupation in a women's refuge could be of choice and accordingly Welchman HHJ had been wrong to vary a decision under s.202 of the Housing Act 1996 to provide otherwise, the Court of Appeal also held that the Appellant local authority had 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).
A local authority can only refer an applicant to another local authority if the criteria in s.198(2) are met, one of which is that he must have a local connection with that authority. S. 199(1) provides that to have a local connection residence must be "of his own choice". In Al-Ameri v RBKC  2 AC 159 the House of Lords held that National Asylum Support Service Accommodation was not of choice (this decision has since been overturned by statute but the ratio of the decision is still applicable).
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 eligibility for assistance including any decision of a local housing authority to notify another local authority under section 198(1). 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  1 W.L.R. 306; (1999) 32 H.L.R. 445.
The Respondent made an application to rely upon an additional ground not argued below, that the Appellant local authority had acted in breach of s.149 of the Equality Act 2010. The Court of Appeal refused to allow the Respondent permission to argue the ground applying the dicta of Chadwick L.J. in Adel William v Wandsworth (2006) H.L.R. 42 at , in the interests of justice the Respondent should have raised the point below.
In June 2011 the Respondent left her home in Leicester as a result of domestic violence and decided to travel to London where she and her daughter took up a place in a refuge in Lambeth. She remained in that refuge until May 2012 when she was moved to a refuge in Southwark following a visit from a friend from Leicester.
Whilst in Lambeth the Respondent was treated for depression by a GP in Lambeth and she received 13 weeks counselling from a Centre in Effra Road Brixton, Lambeth. However, the Respondent did not wish to apply for assistance in Lambeth. Instead in January 2012 she completed an application requesting housing from the Appellant authority. She claimed that her residence in Lambeth had not been of choice.
On 07 March 2012 the Appellant made a decision pursuant to section 184 deciding that the referral conditions were met and that it would refer the Respondent to Lambeth. The Respondent sought a review of the section 184 decision and the Appellant sent the Respondent a letter explaining that it was minded to confirm the section 184 decision and giving an opportunity for further submissions. Subsequently written review representations were sent on behalf of the Respondent. Inquiries were made, including inquiries in relation to the visit by the Respondent's friend who also knew her partner.
The section 202 review decision letter, dated 26 July 2012, was appealed to the county court and varied by HHJ Welchman. HHJ Welchman also ordered the Appellant to secure that accommodation is available for occupation by the Appellant and her daughter.
Court of Appeal
The appeal was allowed. The Court of appeal held that neither the decision in Al Ameri nor the facts of the case predicate the conclusion as a matter of law that the Respondent's residence in Lambeth was not "of [her] own choice", accordingly HHJ Welchman had not been entitled to quash the decision on this ground or to vary it to provide that the Appellant shall secure that accommodation is available for the Respondent : paragraphs -,  and -.
The Court of Appeal also held that there had been a failure of the initial 184 decision to address matters relating to concerns about the risk of violence in Lambeth which came to light after that decision, and that this was a deficiency or irregularity of sufficient importance to the fairness of the procedure to justify the extra procedural safeguard of Regulation 8(2) and therefore a minded to letter pursuant to that regulation should have been served: paragraphs ,  and . In particular Lewison L.J. held at  that, although the decision as to whether such a letter was served was for the reviewing officer, the criterion to be applied when making that evaluative judgement is whether further representations could have made a difference to the decision which the reviewing officer eventually made.
Accordingly it was ordered that HHJ Welchman's order varying the decision should be set aside and the matter be remitted back to the Appellant authority for reconsideration.