COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BIRMINGHAM COUNTY COURT
His Honour Judge Worster
His Honour Judge Owen QC
Strand, London, WC2A 2LL
B e f o r e :
(Vice President of the Court of Appeal Civil Division)
LORD JUSTICE RIMER
LORD JUSTICE ETHERTON
| ISOKONDE MAKISI
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BIRMINGHAM CITY COUNCIL
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|BIRMINGHAM CITY COUNCIL
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|BIRMINGHAM CITY COUNCIL
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Patricia Tueje (instructed by Community Law Partnership) for the 2nd Appellant
Nicholas Nicol (instructed by Community Law Partnership) for the 3rd Appellant
Jonathan Manning, Emily Orme, Stephanie Smith and Annette Cafferkey (instructed by Birmingham City Council Legal Services) for the Respondents
Hearing dates : 14th and 15th February 2011
Crown Copyright ©
Lord Justice Etherton :
The statutory framework
"(1) The Secretary of State may make provision by regulations as to the procedure to be followed in connection with a review under section 202.
Nothing in the following provisions affects the generality of this power.
(2) Provision may be made by regulations—
(a) requiring the decision on review to be made by a person of appropriate seniority who was not involved in the original decision, and
(b) as to the circumstances in which the applicant is entitled to an oral hearing, and whether and by whom he may be represented at such a hearing.
(7) Provision may be made by regulations as to the period within which the review must be carried out and notice given of the decision."
"6(1) A request for a review under s. 202 shall be made –
(a) to the authority, where the original decision falls with section 202(1)(a), (b), (c), (e) or (f);
(2)….the authority to whom a request for a review under section 202 has been made shall –
(a) notify the applicant that he, or someone acting on his behalf, may make representations in writing to the authority in connection with the review; and
(b) if they have not already done so, notify the applicant of the procedure to be followed in connection with the review."
"8(1) The reviewer shall….consider
(a) any representations made under regulation 6 … ; and
(b) any representations made under paragraph (2) below.
(2) 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."
"19.12. Regulation 8 provides that in cases where a review has been requested, if the housing authority, authorities or person carrying out the review consider that there is a deficiency or irregularity in the original decision, or in the manner in which it was made, but they are minded nonetheless to make a decision that is against the applicant's interests on one or more issues, they should notify the applicant:
(a) that they are so minded and the reasons why; and,
(b) that the applicant, or someone acting on his or her behalf, may, within a reasonable period, make oral representations, further written representations, or both oral and written representations."
"If you have any further information in response to this decision which you would like to be taken into account, you or someone acting on your behalf may make oral representations, further written representations, or both oral and written representations. …"
"Please note that where oral submissions are made, these are ordinarily taken by telephone, unless there is a genuine practical reason why submissions cannot be made by telephone."
"Our client would like to make oral representations in person with a representative and an interpreter. We do not consider that making oral representations on the telephone would be adequate in this case, because it would be difficult to hear all of the information necessary at the same time. In order to ensure fairness, we consider that an oral hearing should be arranged where our client would be given the opportunity to make submissions or to have submissions made on her behalf, including by ourselves: this would also give us the opportunity to minute the hearing to ensure fairness."
"I note that you have stated that an 'in person' meeting would be preferable as it would not be possible to hear all of the information at the same time over the telephone. I consider that an in person meeting where all parties were attempting to present information at the same time would not be beneficial. I consider it far more beneficial to take representations over the telephone, where each person can speak in turn and make the relevant points. If your client wishes to have a representative speak on her behalf, I consider that this can be achieved over the telephone. Given that you have repeatedly commented on your client's lack of English, I assume that she will not be making the oral representations herself but will be making them through an interpreter. The City Council can provide an approved interpreter for your applicant."
"I note that you have expressed a preference to minute the meeting to ensure fairness. I am aware that review officers have previously conducted conversations with clients at your offices over the telephone whilst representatives of your firm have listened in on speaker phone. I consider that by doing the same, you would be able to minute the conversation to your satisfaction. These minutes can then be mutually agreed by fax or post prior to a final decision being made. I do not accept that there is any practical reason why making oral representations by telephone will not be possible in this case, or why this would be prejudicial to your client's review.
I intend to make my final decision in this case on 7th December 2009.
I note that you have taken instructions from your client in response to my minded to letter and that you have outlined her further submissions in your letter. I would invite you to clarify, no later than 4th December 2009, whether you wish me to consider the representations made in this letter or whether you will be making further oral submissions in the format proposed. If you wish to refuse the opportunity to make oral submissions via telephone, please contact me to confirm this no later than 5pm on Friday 4th December. If I receive no further contact by this time I will assume that you are refusing the right to make further oral submissions in the manner prescribed and I will make my decision accordingly on 7th December after considering the contents of your letter. Submissions received after the review has been completed will not be considered."
"At the conclusion of our conversation, I asked again if you had any further grounds for review that had not previously been submitted or if you wished to add any further information in support of your review, after being made aware of the contents of my letter of 16th November. You stated that the reason previously submitted remained your grounds for requesting a review of the decision and that you had no new information to add."
"We do not consider that a telephone hearing would give our client an adequate opportunity to put his case to you. We consider the best way for our client to make representations would be face to face and we could offer our office space to do this."
"59. I have to construe these regulations by considering the ordinary and natural meaning of the words in the context of their purpose and the enabling powers.
(i) Regulation 8(2)(b) provides for the applicant to make representations. The draftsman has allied the right to make oral representations with the right to make written representations – or to make both.
(ii) Despite the enabling provisions the draftsman has made no express provision for a hearing.
(iii) There is a real distinction between oral representations and oral hearings. Oral representations may be made at an oral hearing, but technology allows them to be made in other ways.
The natural and ordinary meaning of the words lead me to the view that the right to make representations orally does not require a face to face hearing. It includes any proper opportunity to make representations orally, and that can be done by telephone."
"66. The point which troubles me is the one which lies at the heart of what Mr Stark [counsel for Ms Makisi] says. It is that a telephone call does not give the same opportunity for the exercise of the art of advocacy as a face to face hearing. Although Lord Justice Rimer does not consider this question in [Lambeth LBC v Johnston  EWCA Civ 690;  HLR 10], what he says at paragraph  of his judgment suggests that he is contemplating the sort of opportunities normally associated with a hearing.
67. That said the use of technology allows representations to be made in other ways. Giving the words their natural and ordinary meaning in context I conclude that regulation 8 allows for representations to be made orally by telephone. A face to face hearing may be the best way to make that oral representation and to exercise the art of advocacy, but it is not the only way. Accordingly I dismiss Ground 5 and with it the appeal. ...."
"41. The Respondent owed no duty to convene a face-to-face meeting or an 'oral hearing' for the Appellant, for the purposes of Regulation 8(2) or otherwise. The regulation does not confer upon the Appellant any such right to any such hearing. It confers a right to make or have made representations. The form by which those representations may be made is a matter for the Appellant, namely, in writing or orally, personally or by her representative. However, the manner by which they may be received by the reviewer is a matter for him to determine.
42. Ms Tueje [counsel for Ms Yosief] submits that on the facts of this case there should have been an oral hearing as the only proper way fairly to determine the application and to arrive at a proper decision in relation to the review. Indeed, the Appellant's solicitors raised the prospect of there being a form of adversarial hearing before the reviewing officer. The Respondent is not obliged, by the operation of this regulation, or otherwise, to convene such a hearing. Doubtless, such 'face-to-face' hearing would give rise to complaints about the fairness, or not, of the hearing, the weight attached to particular 'evidence' or its conclusions. The applicant in these circumstances does not enjoy any such ('civil') right of the kind contended for. In my judgment, it is clear that the reviewing officer may determine, on the facts of the case, how he wants to assess the representations received under the regulation and he is not obliged to convene a hearing for the applicant (and her witnesses, and so on).
43. The Regulation does not in fact refer to a hearing, but it does confer upon an applicant the right to make representations or somebody acting on his or her behalf. It is quite clear that the decision not to convene an oral hearing, contrary to the submissions or representations made by the Appellant's solicitors, was a decision to which the review officer was entitled to come having regard to the plain terms of the regulation.
44. A further complaint or criticism is made that having arrived at that decision the Respondent failed to comply with the requirements of Regulation 8(2) in telephoning the Appellant on 7th December without notice sufficient to allow, for example, a three-way telephone conference facility to be arranged or at the very least without sufficient notice to allow it to take place with the solicitors in attendance. I am satisfied that there is no substance in that criticism. There was certainly no wrongful act on the part of the review officer in relation to this aspect of the process.
45. I am satisfied that there is no proper criticism to be made of the review officer on the facts of this case. It is quite clear that having made representations to the Respondent following the initial decision of 14th October 2009, detailed representations were made on her behalf in respect of a matter where the facts were fairly narrow and that having received the 'minded to' letter of 16th November the Appellant, through her representatives, made further representations (and that is the phrase used in their letter of 27th November and again in their letter of the 4th December).
46. Within the letter of the 4th December 2009 the Appellant's solicitors do not suggest that they had additional representations to make on behalf of the Appellant. Rather they sought, having made some representations, to press for the oral hearing. In those circumstances and where the Appellant is a capable person, as she plainly is, with access to the services of an appropriate interpreter and in circumstances where she was fully informed as to the purpose of the telephone conversation and the Appellant did not make any suggestion that she wished further representations to be made by her solicitor, and I am satisfied that the manner in which the review officer conducted this review shows that there is no merit in the assertion that there was any material irregularity or that there was any manifest injustice in the way in which it was conducted and in particular that there was any failure to comply with the provisions of Regulation 8(2). The Appellant had utilised representatives to make representations in writing on her behalf and on 7th December she made additional representations herself. It was in those circumstances that the essential requirements of the rights conferred upon the Applicant identified at the outset of this judgment were, in my judgment, respected and fulfilled and that there was no material irregularity."
"52. The first question that arises under this ground is whether there was a material deficiency or irregularity in the decision of 20th October  [notifying Mr Nagi of the Respondent's original decision that it did not consider Mr Nagi to be homeless] which required a letter or notice pursuant to Regulation 8(2). As I have previously indicated Mr. Nicol [counsel for Mr Nagi] submits that such a letter was necessary. Ms Kafaki, on behalf of the Respondent, challenges that assertion on the basis that there is no material deficiency or irregularity identified in the letter, or, indeed, on appeal. I prefer Ms Kafaki's submissions on that point.
53. ... Assuming for present purposes that Mr. Nicol's submission is correct and that such a letter was, in fact, required, without having to decide the matter, the practical question which arises in this case is whether or not the request by and on behalf of the Appellant for there to be an oral hearing and the Respondent's refusal to accede to that request was, in the circumstances, unreasonable; that is, given the facts, no reasonable decision maker could reasonably have refused the request for a face to face meeting or an oral hearing.
54. In this context, Mr. Nicol drew to the court's attention and cited the recent decision of the Court of Appeal in Bury Metropolitan Borough Council v John Gibbons  EWCA (Civ) 327 and the leading judgment of Jackson LJ ..."
"58. Mr. Nicol submits, in light of that decision in particular, that, in principle, an oral hearing could be acceded to but, as I understood his submission, it would depend on the facts of the case as to whether or not that was the only way in which oral representations sufficient to meet the rights conferred upon the person concerned, pursuant to Regulation 8(2), could be secured.
59. Given my principal findings, it is strictly unnecessary for me to deal with the ground 8 of the appeal but I do so in case I am wrong in relation to the preliminary point on this ground and having regard to the fact that it does constitute, as it were, a free-standing ground of appeal and I have heard submissions from both counsel on it.
60. It is my judgment that, having regard to the terms of Regulation 8(2), whilst a right is conferred upon the person concerned to make oral and/or written representations by himself or on behalf of his or her representatives, the Regulation does not, in fact, confer expressly upon that person a right to an oral hearing, that is, a face to face meeting of the kind contended for on behalf of the Appellant by his instructing solicitors. That is, whilst the local authority is duty bound to ensure that steps are taken to see that the right conferred upon the person in question to present oral representations is met, it does not follow that they are concurrently duty bound to accede to a request for an oral hearing in the context of a face to face meeting, as opposed to an oral hearing in the context of a telephone conference, which, in this case, was offered.
61. The decision of the Court of Appeal in Bury Metropolitan Borough Council appears to me to be explained on the basis that it truly is an exceptional case in that, on the facts of that case, which appear to be highly unusual, there was but one way and one way only in which the person concerned could enjoy the right conferred upon him by that regulation to make oral representations. The case is distinguishable on the facts from this case, in any event, since the evidence does not support the necessary conclusion that a face to face meeting was the only way in which this Appellant could make oral representations which would meet the right conferred upon him by Regulation 8(2).
62. Furthermore, I am not unhappy in arriving at this conclusion, certainly on the facts of this case. It is evident that if the Appellant's solicitors' request was bound to be acceded to, as their letter shows and as submissions developed by Mr. Nicol confirm, inevitably what would happen, as the Appellant's legal team appear to accept, is that the reviewing officer would then be bound to convene a quasi-judicial environment in which he, the reviewing officer, would be bound to hear evidence, see it tested, as Mr. Nicol said, "weigh the credibility or weight to be attached to such evidence," so as to come to his conclusion.
63. This request was made in the belief by the Appellant's instructing solicitors that it was pursuant to and concomitant with his Article 6 rights. That request on that basis was misconceived. If right, no doubt, it would follow as a ground of appeal that the reviewing officer prefers a particular person's evidence over and above somebody else's and when no properly directed fact finder could have come to that conclusion.
64. In short, I am satisfied that, on the facts of this case, the Respondent was not bound to accede to the request for the face to face hearing. The appropriate response on the facts of this case was to offer the Appellant the opportunity to make oral representations which could well have been made by him, or by his instructing solicitors, or whom he may ever have wished to have make those representations and that that method would have met the rights conferred upon him by Regulation 8(2)."
The grounds of appeal
"46. In the instant case, the question then arises whether the effect of regulation 8(2) is that Mr Gibbons was entitled to a full hearing before the reviewing officer, with both himself and his lawyer present. Mr Johnson submits that the requirements of regulation (2) may be satisfied if oral submissions are made by telephone. For my part, I can see that on some occasions a telephone call may suffice for the purposes of regulation 8(2). In the present case, however, after considering the "minded to" letter dated 31st March 2009 (setting out the proposed new factual basis) Bury Law Centre requested a meeting at which they and Mr Gibbons would be present. See the letter from Bury Law Centre to the Council dated 8th April 2009. The Council responded on 9th April 2009, granting an extension of time, but saying nothing about the request for a meeting. It was clear that without legal assistance Mr Gibbons did not have the ability to make any relevant submissions or comments concerning the "minded to" letter dated 31st March 2009. Mr Gibbons made this plain when he attended the housing department on 8th April 2009 …
47. In the circumstances of this case it seems to me that the only way the Council could receive any relevant oral representations on behalf of Mr Gibbons was by acceding to Bury Law Centre's request for a meeting. I have therefore come to the conclusion that the judge did not err in his interpretation of regulation 8(2) or his application of that regulation to the facts of this case."
" It can perhaps be said that the benefit that such a notice gives to an applicant may not in some cases – and the present one is probably a good example – appear obviously as valuable as it might in others. If, as in this case, the applicant has been able – in advance of the review decision – to address all the issues he knows the review officer is considering, the opportunity to make further representations in response to the review officer's reasons for his provisionally adverse views may not be as necessary to the applicant as, for example, it would in the extreme example given by Mr Holbrook to which I have referred. But, having said that, it appears to me that regulation 8(2) confers a potentially invaluable procedural right in all cases.
 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."
"19. I consider that if I had had an oral hearing it would have given me a much better chance to put my case to the Council and for the Council to understand what really happened. They could have also invited my previous Landlord to the hearing and I could have asked the friends that I had used to interpret for me to attend."
Mr Nagi's appeal – deficiency or irregularity in the original decision
" However, I would put it more broadly. 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' (see Runa Begum v Tower Hamlets London BC  1 All ER 731 at ,  2 AC at  per Lord Walker of Gestinghorpe), on which the officer's conclusion will only be challengeable on Wednesbury grounds.
 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. …"
"… housing officers … are not lawyers. It is not therefore appropriate to subject their decisions to the same sort of analysis as may be applied to a contract drafted by solicitors, to an Act of Parliament, or to a court's judgment."
Lord Justice Rimer:
Lord Justice Maurice Kay:
"I acknowledge her concern regarding safety on stairs, but the description of her fits … does not indicate that these are of sudden or dramatic onset and are preceded by a period of shakiness which acts as sufficient warning to her if on stairs."
Mr Nagi is a Somali national, who has been given leave to remain in the United Kingdom. He was joined by his wife ("Mrs Hassan") and their then four children in April 2006. He made an application for accommodation on the basis that he was a homeless person. The respondent accepted a full housing duty to him. He was allocated permanent accommodation at 29B Hunslet Road, Quinton, Birmingham ("Hunslet Road"). It is a first floor maisonette. A steep slope leads up to it, followed by a step into the hallway. There is a steep flight of stairs in the hallway, with handrails on either side. Mr Nagi and his family have resided there ever since, the family having grown in the meantime with the addition of three further children, and the eldest having left.
In September 2009 Mr Nagi made an application for a transfer. He contended that Hunslet Road was not suitable because of his wife's medical condition. His application form recorded his wife's medical diagnosis as "Epilepsy, back & leg problems", and that she "has regular seizures and requires the use of a walking aid at all times. She is finding it difficult to walk up flights of stairs and therefore is requesting a level access property."
The respondent referred all of the medical forms relied upon by Mr Nagi to Dr Keen of NowMedical, the respondent's medical adviser. He was specifically required to consider the medical condition of Mrs Hassan, having particular regard to her present and future accommodation needs. His report dated 16 October 2009 concentrated exclusively on Mrs Hassan's epilepsy, without reference to the other physical problems. Dr. Keen's conclusion was that her condition was not substantially disabling and did not preclude the use of some stairs. He advised that epilepsy was generally amenable to reasonable control with appropriate medication and that the priority was for Mrs Hassan to continue to engage with hospital neurology services to achieve that. So far as concerned the suitability of the accommodation, Dr Keen's conclusion was that, whilst there was some concern regarding Mrs Hassan's safety on stairs, it was not such as to suggest to him that relocation was necessary on medical grounds.
By letter dated 20 October 2009 the respondent notified Mr Nagi that it did not consider Mr Nagi to be homeless. The letter explained the reasons for that decision as follows:
"In reaching this conclusion I have taken into account the following:
- Homeless Application Form dated 01/09/09
- Information you provided regarding your wife's medical condition
- Medical Advice from NowMedical Ltd, dated 16/10/2009
The facts upon which we have based the decision are:
In respect of the medical condition you suffer from, which you have stated in your homeless application dated 01/09/09. We have taken into account your medical condition and personal circumstances when making this decision.
In making our decision we have made regard to the medical information you provided in support of your wife's medical condition and then sought advice from our independent medical advisors NowMedical Ltd. Having considered information provided by both you and NowMedical Ltd.
Therefore when making this decision I have taken into account information submitted by you, in support of your Homeless Application. I conclude that your wife's condition does not prevent her undertaking some stairs. I acknowledge her condition regarding safety on the stairs; however, I do not consider relocation necessary on any medical grounds.
Accordingly you do not qualify for assistance under Part VII of the Housing Act 1996. However, we will provide advice and assistance to help you find your own alternative accommodation."
On 9 November 2009 Mr Nagi's solicitors requested a review. Their letter said that Mrs. Hassan had lost consciousness whilst going up the stairs and that she lost consciousness about twice a week. They also said that she suffered from severe back and leg pain as a result of a gunshot wound she had sustained in Somalia, which made it impossible for her to go upstairs carrying a child or pushchair. The respondent requested further information about those matters, and also, as part of the review, contacted Mrs Hassan's general practitioner, Dr Harley-Mason. He replied by letter dated 18 January 2010. He confirmed that, whilst it was understood that she had fallen on the stairs in 2008, there was no record of this in her medical notes. He also confirmed that during that period of time she was suffering from back pain and pain in the leg as well as "funny turns" which were being investigated. It was noted at that time that there was not a history of a number of seizures at any time, but there were two occasions, once whilst on a 'bus and once whilst cooking. Dr Harley-Mason concluded:
"It is my professional opinion that a one storey flat with no lift access is unsuitable for Mrs. Hassan. She suffers from frequent epileptic attacks as well as ongoing severe leg and back pain and I think she is at risk of falling and injuring herself at any time and, in particular, whilst climbing stairs. She would, no doubt, be safer if supervised. However, given her busy family, this is probably an unrealistic expectation. I hope that you will be able to find alternative accommodation for her and her family as soon as possible."
The respondent also had available and considered letters of June 2008 provided by the then treating consultant, Dr. Pirie, which were copied to Mrs Hassan's treating consultant neurologist, Dr. Sterne. In that correspondence it was confirmed that Mrs. Hassan appeared to have episodes which sounded like epilepsy, although there was some uncertainty over the correct diagnosis. It recorded how such episodes manifested themselves, namely, that Mrs Hassan's hands began to shake, she would feel strange and then would lose consciousness for up to twenty minutes or so. It was on that basis that the doctors agreed that a reasonable diagnosis would suggest epilepsy, but that there were features raised which suggested that this was a non-epileptic attack disorder.
The respondent's review officer sent a detailed letter dated 22 January 2010 to Mr Nagi's solicitors notifying them that he was minded to hold against Mr Nagi. Among other matters, the review officer accepted and noted that Mrs. Hassan had mobility problems and suffered from epilepsy which rendered her vulnerable to injury. He said that he was minded to conclude that the current accommodation did not impact heavily upon that and, whilst there might well be some difficulty in using stairs, proper access was, nonetheless, enjoyed. He noted from the medical evidence that the condition was such that Mrs Hassan experienced an aura which gave some warning of an impending episode. He was minded to consider that it was not unreasonable for her to undertake the tasks she had to undertake within her existing accommodation and that, accordingly, it would not be unreasonable for Mr Nagi with his wife to remain or to continue to occupy those premises.
The reviewing officer indicated that, although he did not consider there to be any irregularity or deficiency in the original decision, he was nonetheless offering an opportunity for Mr Nagi to respond. He said that, if Mr Nagi or his wife, wished to provide any further information on the matters on which the review officer was minded to find against them, they or someone acting on their behalf could make oral representations, further written representations, or both oral and written representations.
Mr Nagi's solicitors replied by letter dated 11 February 2010. They pointed out, among other matters, that Dr Keen of NowMedical had not been aware of relevant matters and that the warning signs of an impending epileptic fit were insufficient for Mrs Hassan to protect herself from the risk of injury without assistance. They further said that, given an apparent conflict, if not between medical practitioners, certainly between Mrs Hassan's description of her condition and her ability to manage that condition when compared to the conclusions of, for example, Dr. Keen, Mr Nagi wished to have an opportunity to present representations orally at a face to face meeting. They said there should be an "oral face-to-face hearing because…you question [Mr Nagi's] credibility in relation to the fact that his wife fell down the stairs."
By letter of 15 February 2010 the review officer replied, expressing his view that an oral hearing was unnecessary but that he would be willing to take further representations by telephone conference
In their reply dated 22 February 2010 Mr Nagi's solicitors said:
"we do not consider that a telephone hearing would give our client an adequate opportunity to put his case to you. We consider the best way for our client to make representations would be face-to-face and we could offer our office space to do this."
That letter crossed with the respondent's review decision of the same date, which broadly followed the "minded to" letter, and concluded that Mr Nagi was not homeless for the purposes of Part 7. Among other things, it was noted that Mrs Hassan's medical records did not appear to support her version of events; and that, whilst the aura or potential for warning referred to by the doctors did not guarantee safety, it certainly reduced the risk of injury; and that there was no record, in fact, of Mrs. Hassan having suffered serious injury as a result of her condition. The review officer accepted that there were obvious mobility problems with potential vulnerability to injury from epilepsy and that Mrs Hassan might well benefit from a property with level access, but his judgment was that, having regard to Mrs Hassan's condition, it was not unreasonable for Mr Nagi to continue to remain in occupation the current property.