ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
Her Honour Judge Baucher
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE SULLIVAN
LORD JUSTICE LEWISON
| ROBIBUL ALAM MITU
|- and -
|LONDON BOROUGH OF CAMDEN
Emma Godfrey (instructed by Andrew Maughan, Borough Solicitor) for the Respondent
Hearing date : 18 October 2011
Crown Copyright ©
Lord Justice Lewison:
i) If a person is intentionally homeless but does not have a priority need the duty is a duty to provide advice and assistance: section 190 (3);
ii) If a person is intentionally homeless and has a priority need the duty is a duty to provide advice and assistance and also to provide accommodation for a period to give him a reasonable opportunity to find accommodation: section 190 (2);
iii) If a person is not intentionally homeless and has no priority need, the duty is a duty to provide advice and assistance: section 192 (2). The duty is thus the same duty as arises where a person is intentionally homeless but does not have a priority need; but in this category of case that duty is coupled with a discretionary power to secure accommodation for him: section 192 (3);
iv) If a person is not intentionally homeless and has a priority need the duty is a duty to secure accommodation for him, unless the application is referred to another housing authority: section 193 (2).
"The Council has a duty to provide you with advice and assistance to help you find your own accommodation."
"You refer to a medical report by our client's doctor Dr Jackson we do not know what report you have considered as neither the writer nor the client knows who Dr Jackson is."
"Your letter included no new medical information to consider and confirmed our existing understanding of Mr Mitu's medical condition … You have received a copy of the completed medical assessment form, completed by Dr Jackson on behalf of Mr Mitu's usual[ly] GP, Dr Emma Parsons using information taken from the patient's notes. You pointed out that your client did not know who Dr Jackson was but, in these circumstances, I am satisfied the information is reliable."
"I am satisfied that Mr Mitu is eligible for assistance and homeless but that he is not in priority need for accommodation. This means that the Council's duty is to provide him with advice and assistance to help him find his own accommodation.
I note that the Council has discretion to accommodate people who are not in priority need and also are not intentionally homeless. I am satisfied, having reviewed this case carefully, that there are no special circumstances that should persuade us to use our discretion to secure that accommodation is available to Mr Mitu."
"The Council does not have a duty to accommodate Mr Mitu on grounds of homelessness. However, the Council has a duty to provide him with advice and assistance to help him find his own accommodation."
"(3) The authority … concerned shall notify the applicant of the decision on the review.
(4) If the decision is—
(a) to confirm the original decision on any issue against the interests of the applicant, …
they shall also notify him of the reasons for the decision."
"If the reviewer considers that there is a deficiency or irregularity in the original decision, or in the manner in which it was made, but is minded nonetheless to make a decision which is against the interests of the applicant on one or more issues, the reviewer shall notify the applicant—
(a) that the reviewer is so minded and the reasons why; and
(b) that the applicant, or someone acting on his behalf, may make representations to the reviewer orally or in writing or both orally and in writing."
"(1) If the local housing authority have reason to believe that an applicant may be homeless or threatened with homelessness, they shall make such inquiries as are necessary to satisfy themselves—
(a) whether he is eligible for assistance, and
(b) if so, whether any duty, and if so what duty, is owed to him under the following provisions of this Part.
(2) They may also make inquiries whether he has a local connection with the district of another local housing authority in England, Wales or Scotland.
(3) On completing their inquiries the authority shall notify the applicant of their decision and, so far as any issue is decided against his interests, inform him of the reasons for their decision."
"Thus, the requirement for advance notice of the intended decision in certain cases does not derive directly from the statute itself. The thinking behind such a requirement seems to be that a bare right to make representations on the first decision will not be sufficient, if that decision was itself flawed in some respect, so that it does not represent a full and reliable consideration of the material issues. In that event the applicant's rights are reinforced in two ways: first, by requiring the reviewing officer to give advance notice of a proposed adverse decision and the reasons for it; and, secondly, by allowing the applicant to make both written and oral representations on it." (Emphasis added)
"… an important objective of reg. 8(2) is to ensure that, where the reviewing officer is minded to confirm a decision on different grounds, the applicant should be given an opportunity to make representations."
"29 …The word "deficiency" does not have any particular legal connotation. It simply means "something lacking". There is nothing in the words of the rule to limit it to failings which would give grounds for legal challenge. If that were the intention, one would have expected it to have been stated expressly. Furthermore, since the judgment is that of the reviewing officer, who is unlikely to be a lawyer, it would be surprising if the criterion were one depending solely on legal judgment. 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" … on which the officer's conclusion will only be challengeable on Wednesbury grounds.
30 To summarise, the reviewing officer should treat reg.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." (Emphasis added)
"Where the reviewer rejects the factual basis of the original decision and proposes to substitute a different factual basis leading to the same conclusion, it seems to me that the review has identified a "deficiency" within the meaning of reg. 8(2)."
"… although the original decision itself cannot be faulted, it came to have a deficiency which was of sufficient importance to justify the additional procedural safeguard, in the sense that further representations made in response could have made a difference to the decision that the reviewing officer had to make." (Emphasis added)
"Further, as the present case shows, a decision can often survive despite the existence of an error in the reasoning advanced to support it. For example, sometimes the error is irrelevant to the outcome; sometimes it is too trivial (objectively, or in the eyes of the decision-maker) to affect the outcome; sometimes it is obvious from the rest of the reasoning, read as a whole, that the decision would have been the same notwithstanding the error; sometimes, there is more than one reason for the conclusion, and the error only undermines one of the reasons; sometimes, the decision is the only one which could rationally have been reached. In all such cases, the error should not (save, perhaps, in wholly exceptional circumstances) justify the decision being quashed."
"…reg.8(2) is not a discretionary option that the review officer can apply or disapply according to whether or not he or she considers that the service of a "minded to find" notice would be of material benefit to the applicant. Regulation 8(2) imposes a dual, mandatory obligation upon the review officer. First, to "consider" whether there was a deficiency or irregularity in the original decision or in the manner in which it was made. Secondly, if there was—and if the review officer is nonetheless minded to make a decision adverse to the applicant on one or more issues—to serve a "minded to find" notice on the applicant explaining his reasons for his provisional views. In my judgement, there is no discretion on the review officer to give himself a dispensation from complying with either of those obligations. As regards the first part of it, I have referred to the fact that it is not a purely subjective exercise but that failure to arrive at the right "consideration" can be challenged on usual public law grounds. As regards the second part, the language of reg. 8(2) is unambiguously mandatory—"the reviewer shall notify …"."
"It is one thing for an applicant to be able to make representations on the matters in issue and then apprehensively await the review officer's decision, whichever way it may go. It is quite another for an applicant, not just to be able to make such representations, but then also to be given (i) advance notice of the review officer's reasons for his provisionally adverse views, and (ii) the opportunity not just to make further written representations as to why those views are not justified by his reasons, but also oral representations to that effect. Previously the applicant will simply have addressed the issues as best he can. Now he will have the opportunity to respond specifically to the review officer's own reasons as to how he proposes to deal with the issues. That is a most important advantage to the applicant. It may well, in many cases, enable him to engage in no more than an exercise of advocacy. But advocacy can turn a case. There can be few judges who, having formed a provisionally adverse view on a skeleton argument advanced in support of a case, have not then found their view transformed by the subsequent oral argument for which, in the art of advocacy, there is no comparable substitute. The opportunity open to an applicant to try, by written and/or oral argument, to persuade the review officer that his reasoning for his provisional conclusion is mistaken is—at the very least—potentially of great benefit to an applicant. To be deprived of that right is or may be seriously prejudicial."
Lord Justice Sullivan:
Lord Justice Rix :
"that decision was itself flawed in some respect, so that it does not represent a full and reliable consideration of the material issues" (at para 26).
Carnwath LJ went on (at para 29) to describe the necessary deficiency in broad terms – "It simply means "something lacking" – but he again underlined the need for something more, viz –
"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 "evaluative judgment"…on which the officer's conclusion will only be challengeable on Wednesbury grounds."
"71 A literal interpretation of reg.8(2) would make it difficult to reach the conclusion that "there is a deficiency…in the original decision". On a literal approach the natural meaning of the words suggests that the focus is on the position as at the date of the decision…But…I was convinced by the argument for Mr Banks that a purposive construction should be given to reg.8(2) to ensure that its objective is achieved. Mr Banks having become homeless, the original decision had become deficient in that it did not address the question of priority need…
72 Consequently I am satisfied that, although the original decision itself cannot be faulted, it came to have a deficiency which was of sufficient importance to justify the additional procedural safeguard, in the sense that further representations made in response could have made a difference to the decision that the reviewing officer had to make."
"54 In the circumstances, I have come to the conclusion that Ms Samuels' failure to consider that this was a case in which the facts required the giving of a "minded to find" notice to Mr Johnston under reg.8(2) was indefensible and unlawful. I regard that failure as having vitiated the integrity of her review decision. I consider that Mr Recorder Barker was properly entitled to find and conclude that it meant that her review decision of February 1, 2007 was fatally flawed."