England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WANDSWORTH COUNTY COURT
HIS HONOUR JUDGE WELCHMAN
2WT00908

		Royal Courts of Justice Strand, London, WC2A 2LL
		07th November 2013

Lady Justice Gloster :

The issue

1. This case raises the issue as to the circumstances in which, for the purposes of sections 198(2) and 199 of the Housing Act 1996 (as amended by the Homelessness Act 2002) ("the 1996 Act"), an applicant for housing assistance has a local connection with the district of the authority to which his or her application is referred pursuant to section 198(1) of the 1996 Act. In particular this case raises the question whether a person's residence in a refuge in a particular local authority district, as a result of having been the victim of domestic violence, is a "residence of his own choice" within the meaning of section 199(1)(a) of the 1996 Act.

Introduction

2. This is an appeal by the London Borough of Wandsworth ("the Appellant") from the judgment of His Honour Judge Welchman, sitting in the Wandsworth county court, dated 11 December 2012 ("the judgment"). By the judgment the judge varied a review decision dated 26 July 2012 ("the review decision") made by Ms Marcia Anglin, the Senior Reviews Officer of the Appellant ("the SRO") pursuant to section 202 of the 1996 Act.
3. By the review decision the SRO confirmed an earlier decision made by the Appellant dated 7 March 2012 under section 184 of the 1996 Act ("the initial decision") whereby it concluded that NJ, the respondent to this appeal ("the Respondent"), was unintentionally homeless, was an eligible person and was in priority need within the meaning of the 1996 Act, but that she did not have a local connection with the Appellant. Accordingly the Appellant concluded that it had no statutory obligation to house the Respondent and referred her application to the London Borough of Lambeth ("LBC") purportedly pursuant to its powers section 198 of the 1996 Act, on the grounds that the Respondent had a local connection with LBC on the basis of her residence at a women's refuge in Lambeth from June 2011 to March 2012, and that neither the Respondent nor her daughter would run the risk of domestic violence in that other district.
4. By his order dated 11 December 2012, the judge; i) allowed the Respondent's appeal; ii) quashed the review decision; iii) ordered the Appellant to ensure that accommodation was available for occupation by the Respondent and her daughter pursuant to section 193 of the 1996 Act.

The facts

5. The respondent is in her late twenties. Her daughter was born in 2005. In June 2011, as a result of serious domestic violence, the Respondent left her home in Leicester and decided to travel to London to seek refuge. With the assistance of the Safeguard Project, she was found a place in a refuge in Lambeth, which she accepted. It was the first place which had become available.
6. The refuge arranged counselling for the Respondent in Lambeth and provided her with services designed to help her, and her daughter, overcome the effects of the domestic violence. The Respondent was also treated for depression by a GP in Lambeth.
7. After six months in the refuge the Respondent was considered by the staff to be ready for life in mainstream accommodation and, with their assistance, she applied on 18 January 2012 to the Appellant under Part VII of the 1996 Act. She chose to apply to the Appellant in order to make a "fresh start", because she had friends in its area and because she intended that her daughter should go to school there. She claimed that her residence in Lambeth had not been by choice.
8. In February 2012, the Respondent's former partner was charged in relation to a very serious assault on the Respondent committed in February 2011. He had not been charged previously as (i) the Respondent had not felt safe enough to report the incident to the Police; and (ii) he had been in a coma for a period following a car accident.
9. On 7 March 2012 the Appellant made the initial decision pursuant to section 184 of the 1996 Act. It decided that, although the Respondent qualified for housing assistance, because she had no local connections with Wandsworth, but did have a connection with Lambeth, the "referral conditions" set out in section 198 of the 1996 Act were satisfied. Accordingly the Appellant exercised its discretion to refer the Respondent's application to LBC pursuant, or purportedly pursuant, to its powers under section 198. In its letter dated 7 March 2012 the Appellant stated:-

"You have pointed out that your residence in a Lambeth women's refuge was not by choice. However, it is evident that regardless of how or the reason why you lived in Lambeth, you voluntarily accepted accommodation there, and hence it became your normal residence. Therefore, this council is satisfied that you have established a local connection with Lambeth, and not with this local authority."

10. On 16 March 2012 the Respondent telephoned the Appellant and requested a review of the Appellant's decision.
11. On 30 March 2012 the SRO sent the Respondent a "minded to find" letter stating that, although the Appellant was taking

" all reasonable steps to obtain as much information in relation to the matters which you have raised in relation to this review and to ensure that the review is dealt with fairly",

and that the SRO had yet to reach a decision on review, the SRO was minded to uphold the Appellant's original decision that the Respondent's local connection rested with Lambeth and not with the Appellant. The SRO identified the specific issues in respect of which she was minded to find against the Respondent. These included:

i) the reasons why the Respondent wanted to be housed in Wandsworth, namely friends and her attendance at church there;

ii) the question as to whether the Respondent's residence in Lambeth was her normal residence of choice.

12. On 14 May 2012 the Respondent moved to a refuge in Southwark following a visit from a friend from Leicester and concerns over her safety, because of the fear that her former partner might try to find out where she was living.
13. Subsequently, on 11 July 2012, the Respondent's solicitors sent extensive written review representations to the Appellant. These contended that the Appellant's failure to provide the Respondent with accommodation in Wandsworth was in breach of the Appellant's statutory duty and that the latter's referral of the Respondent's application to LBC was unlawful for the following reasons:

"1. Local Connection is a discretionary requirement and the authority should not apply it in these circumstances;

2. Our client does in any event have a local connection to Wandsworth;

3. Our client does not have a local connection to Lambeth because a refuge cannot be a 'residence of choice', and she formed no real connection with the area; and

4. Even if our client did have a local connection to Lambeth, she should not be referred there because she is at risk of violence in the borough. If the Authority had made inquiries before making the referral, they would have discovered that our client was at risk in the area and would not have made the referral."

14. Subsequently, the SRO made further factual inquiries of the Respondent, which were recorded in attendance notes of telephone conversations dated 24 and 26 July 2012.
15. On 26 July 2012 the SRO sent a further very detailed letter to the Respondent setting out the review decision. The letter stated that the SRO had concluded the Appellant's review and had decided to confirm the initial decision. In that letter she made it clear that she had taken into account:

i) all the information available to date;

ii) the issues relating to residence of choice;

iii) the issues relating to risk of violence in the Lambeth area;

iv) the facts relating to special circumstances; and

v) the facts relating to the Respondent's daughter's place at a school in Wandsworth.

16. On 5 October 2012 LBC wrote to the Respondent pursuant to section 184 of the 1996 Act informing her that it was satisfied that she was eligible for assistance, homeless, in priority need, not intentionally homeless and had a local connection with Lambeth. LBC accordingly accepted its obligation to house the Respondent.

The relevant statutory provisions

17. Part VII of the 1996 Act sets out a housing authority's duties to those who are homeless or threatened with homelessness. The relevant provisions are as follows:

i) Section 184(1) provides:

"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".

The authorities demonstrate that the burden is on the authority to make appropriate inquiries, which should be pursued vigorously and fairly. An applicant must be given an opportunity to respond to matters the authority is minded to weigh substantially against him. Any doubt or uncertainty must be resolved in the applicant's favour (see e.g. R v. Gravesham B.C, ex parte Winchester (1986) 18 HLR 208 QBD).

ii) Section 184(2) provides that:

"They may also make enquiries whether he has a local connection with the district of another local housing authority in England, Wales or Scotland."

iii) Section 184(3) provides that the authority is obliged to give reasons for its decision. The reasons must be intelligible and deal with the substantial points which have been raised; see e.g. per Megaw J in Re Poyser & Mills Arbitration [1964] 2 QB 467.

iv) Section 188(1) provides that:

" If the local housing authority have reason to believe that an applicant may be homeless, eligible for assistance and have a priority need, they shall secure that accommodation is available for his occupation pending a decision as to the duty (if any) owed to him under the following provisions of this Part".

v) Section 188(3) provides that:

"the duty ceases when the authority's decision is notified to the applicant, even if the applicant requests a review of the decision (see section 202). The authority may continue to secure that accommodation is available for the applicant's occupation pending a decision on a review".

vi) Section 189 (1) provides that:

"The following have a priority need for accommodation –

…..(c) a person who is vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason, …"

vii) According to the Homelessness (Priority Need for Accommodation) (England) Order 2002 SI 2051, an applicant has a priority need if he or she is:

"vulnerable as a result of ceasing to occupy accommodation by reason of violence from another person or threats of violence from another person which are likely to be carried out".

viii) Section 193, so far as material, provides as follows:

"(1) This section applies where the local housing authority are satisfied that an applicant is homeless, eligible for assistance and has a priority need, and are not satisfied that he became homeless intentionally.

(2) Unless the authority refer the application to another local housing authority (see section 198), they shall secure that accommodation is available for occupation by the applicant."

ix) Section 198, so far as material, provides as follows:

"(1) If the local housing authority would be subject to the duty under section 193 (accommodation for those with priority need who are not homeless intentionally) but consider that the conditions are met for referral of the case to another local housing authority, they may notify that other authority of their opinion.

(2) The conditions for referral of the case to another authority are met if—

(a) neither the applicant nor any person who might reasonably be expected to reside with him has a local connection with the district of the authority to whom his application was made

(b) the applicant or a person who might reasonably be expected to reside with him has a local connection with the district of that other authority, and

(c) neither the applicant nor any person who might reasonably be expected to reside with him will run the risk of domestic violence in that other district."

x) As to the meaning of "local connection", section 199 (1) provides as follows:

"(1) A person has a local connection with the district of a local housing authority if he has a connection with it—

(a) because he is, or in the past was, normally resident there, and that residence is or was of his own choice,

(b) because he is employed there,

c) because of family associations, or

(d) because of special circumstances."

xi) Sub-sections 199(3),(4) and (5) set out the grounds where residence cannot be one of choice:

"(3) Residence in a district is not of a person's own choice if—

(a) he becomes resident there because he, or a person who might reasonably be expected to reside with him, is serving in the regular armed forces of the Crown, or

(b) he, or a person who might reasonably be expected to reside with him, becomes resident there because he is detained under the authority of an Act of Parliament.

(4) In subsections (2) and (3) "regular armed forces of the Crown" means the Royal Navy, the regular forces as defined by section 225 of the Army Act 1955, or the regular air force as defined by section 223 of the Air Force Act 1955.

(5) The Secretary of State may by order specify other circumstances in which—

(a) a person is not to be treated as employed in a district, or

(b) residence in a district is not to be treated as of a person's own choice."

xii) Section 202 provides that an applicant has a 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 authority under section 198 (1) (referral of cases).

xiii) Regulations have been made pursuant to section 203 of the 1996 Act as to the procedure to be followed in connection with a review under section 202. In particular, Regulation 8 of the Allocation of Housing and Homelessness (Reviews Procedures) Regulations 1999/71 ("the Regulations") provides:

"8.....

(2) If the reviewer considers that there is a deficiency or irregularity in the original decision, or in the manner in which it is 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."

xiv) Section 204 provides a dissatisfied applicant with a right to appeal to the county court on a point of law:-

"(1) if an applicant who has requested a review under section 202-

(a) is dissatisfied with the decision of the review, or

(b) is not notified of the decision on the review within time prescribed under section 203,

he may appeal to the county court on any point of law arising from the decision or, as the case may be, the original decision.

(2) ……

(3) On appeal the court may make such order confirming, quashing or varying the decision as it thinks fit."

A "point of law" includes not only matters of legal interpretation but also

"The full range of issues which would otherwise be the subject of an application to the High Court for judicial review, such as procedural error, and questions of vires to which I add, also of irrationality and (in)adequacy of reasons."

See per Auld LJ in Nipa Begum v L.B. Tower Hamlets LBC [2000] 1 WLR 306, CA at 313E-F. In other words the scope of proceedings under section 204 is equivalent to that of judicial review proceedings in the High Court.

The current approach in relation to the section 184 and section 202 review procedure

18. In Maswaku v Westminster City Council [2012] EWCA Civ 669, the Court of Appeal considered what is meant by a "deficiency" in the original decision for the purposes of Regulation 8. Mummery LJ said at [23].

"23. In that context, "deficiency" simply means that there is "something lacking", not just failings that would give grounds for legal challenge. The "something lacking" has to be of sufficient importance to the fairness of the procedure to justify an extra procedural safeguard, such as failure by the original decision- maker to address, or to address adequately, an important aspect of the case: Hall v. Wandsworth LBC [2005] 2 All ER 192 paragraphs 29 and 30. In such a case, if the reviewer intends to confirm the original 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 submissions. See also Mitu v. London Borough of Camden [2011] EWCA 1249 . The reviewer must consider whether the deficiency is of sufficient importance for him to give the statutory "minded to find" notice under Regulation 8(2) , so that there is an opportunity for the applicant to make further representations and to attempt to persuade the reviewer not to confirm the original decision."

In Hall v Wandsworth LBC [2005] 2 All ER 192 it had been held:

"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."

19. It is clear from the authorities that the local housing authority is the sole arbiter of fact in making a decision under section 184 or section 202. The weight to be given to the evidence considered by a local authority in coming to its decision under section 184 and section 202 of the Housing Act 1996 is a matter for it alone. In R v L.B. Hillingdon ex p. Puhlhofer [1986] 1 A.C. 484 Lord Brightman said at p.518:

"The plight of the homeless is a desperate one, and the plight of the applicants in my present case commands the deepest sympathy. But it is not, in my opinion, appropriate that the remedy of judicial review, which is a discretionary remedy, should be made use of to monitor the actions of local authorities under the Act save in the exceptional case. The ground upon which the courts will review the exercise of an administrative discretion is abuse of power - e.g. bad faith, a mistake in construing the limits of the power, a procedural irregularity, or unreasonableness in the Wednesbury sense - unreasonableness verging on an absurdity: see the speech of Lord Scarman in Reg v Secretary of State for the Environment, Ex parte Nottinghamshire County Council [1986] AC 240, 247-248. Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely."

That remains the correct approach under the 1996 Act: see Adel William v Wandsworth [2006] EWCA Civ 535 at [19]-[20] and Bubb v Wandsworth LBC [2011] EWCA Civ 1285 per Neuberger LJ at [19]-[21], where he emphasised that:

"there is no jurisdiction under the statutory scheme for the county court to set itself up as a finder of the relevant primary facts for itself."

20. Lord Neuberger also recently gave guidance on the correct approach to adopt when considering review decision letters. Thus in Holmes-Moorhouse v Richmond-upon-Thames BC [2009] UKHL 7; [2009] 1 WLR 413 he said:

"50. Accordingly, a benevolent approach should be adopted to the interpretation of review decisions. The court should not take too technical a view of the language used, or search for inconsistencies, or adopt a nit-picking approach, when confronted with an appeal against a review decision. That is not to say that the court should approve incomprehensible or misguided reasoning, but it should be realistic and practical in its approach to the interpretation of review decisions."

The judgment

21. The basis upon which the judge varied the review decision and ordered the Appellant to secure that accommodation was available for the Respondent and her daughter can be summarised as follows:

i) First, he concluded that the SRO had misdirected herself as to the test to be applied when deciding whether or not the Respondent's residence in Lambeth was of her own choice. He held that the SRO should have asked herself the question "did you choose to live in Lambeth" as opposed to the question which she did ask, namely "did you choose to reside in the refuge"; had the SRO asked the first question, it would have produced the answer "No"; see paragraph 14 of the judgment.

ii) Second, having referred to Al Ameri v Kensington and Chelsea RLBC [2004] 2 AC 159, the judge concluded that, on the facts, the Appellant had not chosen to live in Lambeth. At paragraph 15 he said:

"Had A presented herself to any local authority that could be said to have been a matter of choice but she did not. What she sought and was provided with was a refuge by a charity that has a number of refuges. They placed her where they had a space and that happened to be in Lambeth. I agree with the submission that the Senior Reviews Officer asked herself the wrong question living in Lambeth and in doing so made an error of law. On the facts of this [case] A did not choose to live in Lambeth she was placed there and the fact that other choices may have been available does not mean in my judgment that it was a matter of choice".

iii) Third, the judge concluded that the initial decision (i.e. the section 184 decision) had been defective and that, accordingly, it was unreasonable for the SRO not to have invoked the Regulation 8(2) procedure so as to afford the Respondent a further opportunity to make representations. He dealt with the issue at paragraph 24 of his judgment in the following terms:

"24. In this case the issue of domestic violence was stated in the 184 decision although not explored or expanded upon and it is clear that the Reviewer took account of further representations and made some enquiries. It is of interest to compare and contrast what is said in the 184 decision and the review decision. In the 184 decision (pages 15-16) there is an acceptance of the fact that there had been historic domestic violence without more whereas the review decision deals with the possibility of a continuing risk over the best part of 2 pages - from the middle of page 42 to the top third of page 44. Does that amount to a "deficiency"? In all the circumstances of the case I consider it does. There have been significant developments. A has been seen by other people who know her ex-partner and has been moved out of Lambeth to another refuge in the adjoining borough of Southwark. The threat of violence to A is at the heart of this case and this appeal. A has been denied the opportunity of commenting on the reasons why the risk of future violence has been discounted. This is a case where it can be said that it was in the Wednesbury sense unreasonable not to have invoked the Regulation 8(2) procedure. This may be a case where the reviewer thought that further representations would have made no difference but that is not the test."

The issues which arise in the appeal

22. On the basis of the Appellant's notice of appeal, the issues which originally arose in the appeal were as follows:

i) First, was it open to the Appellant on the information before it to conclude that the Respondent's residence in Lambeth was "residence ... of [her] own choice"?

ii) Second, when reaching its decision had the Appellant complied with Regulation 8(2) of the Regulations?

23. By a Respondent's notice of appeal dated 28 March 2013, the Respondent sought to rely upon a further ground of appeal against the review decision dated 27 July 2012, namely that, in reaching its decision to refer the Respondent to the LBC, the Appellant failed to comply with section 149 of the Equality Act 2010.
24. On 20 June 2013 Aikens L.J. made an order that permission be granted to the Respondent to argue that new ground of appeal without prejudice to the right of the Appellant to argue that the Court of Appeal should reject this ground on the basis that it had not been argued below and that the Appellant would be prejudiced as a result, if the new point were taken.
25. Having heard submissions from both parties, this court refused to allow the Respondent to rely upon this new ground of appeal at this stage of the proceedings. In the interests of the proper administration of justice, the Respondent should have raised the point before the judge in the county court. As Chadwick LJ said in Adel William v Wandsworth (2006) HLR 42 at [72], final sentence:

"On an appeal under s. 204 of the Housing Act 1996 an applicant should bring before the county court all the matters on which he or she wishes to rely by way of challenge to a review decision."

Finality of litigation is an important principle of substantive justice. Parties to litigation are entitled to know where they stand. It is in the interests of every litigant and the system as a whole that there should be an end to litigation. A litigant should put his full case before the court at trial and should not be allowed to have a second bite at the cherry without a very good reason indeed: see e.g. per Hale LJ in Hertfordshire Investments Ltd v Bubb [2000] 1 WLR 2318, at 2324C.

26. Moreover, had the new ground been raised before the county court, it might well have been the case that the Appellant would have wished to have put evidence before the court relating to the allegation that the Appellant was applying some sort of discriminatory policy when exercising its right to refer, where the conditions of referral were met. On any basis the Appellant was justified in saying that it would have wished to have given consideration to so doing.
27. In the circumstances, this court took the view that it was inappropriate that we should entertain the new ground of appeal without there having been full consideration of the point in the county court, on the basis of any relevant evidence.

Discussion and determination of the first issue - was it open to the Appellant to conclude on the material before it that the Respondent's residence at the refuge in Lambeth was of her own choice

28. I remind myself, that as emphasised in R v LB Hillingdon ex parte Puhlhofer, and other cases, factual decisions are for the reviewer not for the courts. Thus, in a case such as the present, only if a reviewer has applied the wrong legal test to determine normal residence, or the facts relied upon by a reviewer are not "capable" as a matter of law of satisfying the requirement that normal residence was of the applicant's own choice (see per Lord Hope in Al-Ameri at [40]), is it appropriate for a court to interfere with the factual findings of the reviewer.
29. Did the SRO in the present case apply the wrong legal test or base her conclusion that the Respondent was resident of "her own choice" in Lambeth on facts which were not capable in law of satisfying such requirement?
30. Mr Martin Westgate QC and Mr Jamie Burton, counsel for the Respondent, submitted that, applying the approach set out in Al-Ameri the judge was correct to conclude that the SRO asked the wrong question. Thus Mr Westgate submitted:

i) The question posed by section 199(1)(a) was whether residence in a particular district was the individual's own choice; see Al-Ameri paragraphs 41 and 46.

ii) Where the choice was made by someone else it did not become the applicant's choice merely because s/he "was content to reside there, or ... went there voluntarily" or because s/he could "stay where he was when the offer was made" see Al-Ameri at [§41].

iii) Therefore where the fact that someone resided in a particular district was because of some other choice, for example a choice between being homeless and having accommodation, or someone else's choice, the statutory test was not met.

iv) Insofar as it could be said that the Respondent made a "choice" at all, it was limited to the decision to flee domestic violence and to enter the refuge system. However, that choice did not concern the one choice to which section 199(1) was directed – namely the choice to live in the district of the LBC or indeed any other district. That decision was made by the refuge system and was no more the Respondent's choice by her having acquiesced in it. There was no way therefore in which it could be said that the Respondent's residence in Lambeth was "of her own choice". The failure to acknowledge this was the fundamental flaw in the SRO's decision.

v) The judge was therefore correct to find that the SRO asked the wrong question, namely "did [the Appellant] choose to reside in the refuge?", when she should have asked "did [the Respondent] choose to live in Lambeth?"

vi) The judge was equally right to conclude that, had the correct question been asked by the SRO then only one answer would have been permissible, namely "no". He acknowledged that it was accepted that the Refuge had "placed [the Respondent] where they had a space", that it was the only available refuge in London and therefore the Appellant did not "choose to live in Lambeth she was placed there". This being so he correctly concluded that "there is no "real prospect that [the Appellant] acting rationally with the benefit of further inquiry" will come to any other conclusion than [the Respondent] had not chosen to live in Lambeth".

vii) The judge's decision was sound. The Respondent came to be in Lambeth not because of her decision to reside there but because of her decision to seek sanctuary in a woman's refuge. She was then "placed" in Lambeth.

viii) As Baroness Hale are said in R(Aweys) v Birmingham City Council [2009] 1 WLR 1506 at [43]

"a refuge is not simply crisis intervention for a few nights. It is a safe haven in which to find peace and support. But it is not a place to live. There are rules which are necessary for the protection of residents but make it impossible to live a normal family life. It is a place to gather one's strength and one's thoughts and to decide what to do with one's life. The choices facing a woman who flees domestic violence are complex and difficult".

This supported the argument that it could not be said that, by simply accepting a place in a refuge that happened to be located in Lambeth, the Respondent had made a "choice" normally to reside in Lambeth.

31. Contrary to Mr Westgate's submissions, I consider that, on the basis of the factual material before the Appellant, the SRO was as a matter of law entitled to conclude that the Respondent's residence in Lambeth was of her own choice and that, accordingly, she had a local connection with the district of LBC for the purposes of section 199. My reasons may be shortly stated as follows.
32. First, I do not consider that the SRO asked herself the "wrong question". Whilst she did ask herself the two questions: "a) do you normally reside in the refuge in Lambeth? b) Did you choose to reside in the refuge?", adopting a "realistic and practical approach" to the relevant passages in her letter dated 26 July 2012, it is clear that she fully appreciated that the refuge was in Lambeth and that the relevant question was whether the Respondent had chosen to reside in Lambeth. To construe her letter as not addressing the question as to whether the Respondent had chosen to live in Lambeth is to adopt the technical and nit-picking approach condemned by Lord Neuberger in Holmes-Moorhouse v Richmond (supra). As Mummery LJ emphasised in El Goure v RBKC, its 2012] EWCA Civ. 70 at 44, if the relevant passages are read in the context of the decision as a whole, it is manifestly clear that the SRO was addressing her mind to the right question.
33. Second, although the effect of the Al-Ameri case has been reversed by statute so far as National Asylum Support Service Accommodation ("NASS") is concerned, the statements made by the House of Lords in Al-Ameri in relation to the phrase "of his own choice" are still applicable to cases such as the present. But, in my judgment, neither the reasoning, nor the actual decision, in Al-Ameri provides any support for the Respondent's contention that, on the basis of the materials before the SRO, she was unable as a matter of law to conclude that the Respondent resided of her own choice in Lambeth.
34. The facts in Al-Ameri were very different from those in the present case. In Al-Ameri the applicants had been provided with accommodation in Glasgow by NASS. The question arose as to whether they had thereby acquired a local connection with Glasgow. It was accepted that, whilst in the NASS accommodation, they had been normally resident in Glasgow and the case turned on whether that residence had been of their own choice (paragraph [16]).
35. The House of Lords held (at paragraphs [17], [41]-[44] and [54]-[59]) that the residence had not been of their own choice and that an applicant's residence in NASS accommodation could never be of the applicant's own choice. The argument that the applicants had chosen to reside in Glasgow because they had a choice as to whether or not to accept the NASS accommodation was rejected. The location of the accommodation to be offered was chosen by NASS and the statutory provisions specifically required any preference expressed by an asylum seeker as to the locality of the accommodation to be disregarded (section 97(2) of the Immigration and Asylum Act 1999). Support by NASS was offered as part of a package so that, if the accommodation offered was refused, it was likely that no subsistence support would be available. An asylum seeker who refused the support offered might be placed in detention (see Al-Ameri at [54]).
36. In those circumstances, as Mr David Lintott, counsel for the Appellant, submitted, it was not surprising that the House of Lords decided that it would be an abuse of language to say that the applicants had chosen to live in Glasgow. They faced a choice of moving to Glasgow, destitution or detention.
37. In contrast, in the present case, the SRO was, in my judgment, entitled to conclude on the material before her that the Respondent had voluntarily chosen to come to London (as opposed to any other part of the country) and had voluntarily chosen to seek assistance from the particular charity which housed her. Whilst it was true that, apparently, the only refuge place available in London was in Lambeth, nonetheless the Respondent had voluntarily chosen to accept the refuge's offer and to reside in Lambeth. As the SRO pointed out, when the Respondent arrived in London in June 2011 she had the right, as a homeless person, to apply to any local authority for accommodation. Indeed she could have chosen to live in any other area of the country apart from London. Instead she chose, for understandable reasons, to reside in the women's refuge place offered to her in Lambeth. Whilst she might have preferred to live in another district, and whilst she might have considered that, given her need for support, she had, from a practical point of view, a very limited range of options given her wish to live in London, other than to accept the Lambeth placement, nonetheless in my view the SRO was, as a matter of law, entitled to conclude that the Respondent's residence in Lambeth was of her own choice. On any basis, it was one made by her voluntarily.
38. It follows that I do not accept Mr Westgate's arguments that either the decision in Al-Ameri or the particular facts of this case predicate the conclusion as a matter of law that the Respondent's residence in Lambeth was not "of [her] own choice".
39. Accordingly, in my judgment it was not open to the judge to quash the SRO's decision on this ground. Nor was he entitled to vary the review decision so as to provide that the Appellant "shall secure that accommodation is available for occupation by the Appellant and her daughter pursuant to section 193 of the [1996 Act]."

Discussion and determination of the second issue - when reaching the review decision did the Appellant comply with its obligations under Regulation 8(2) of the Regulations?

40. The short issue here is whether the SRO was in breach of her procedural obligations under Regulation 8(2) of the Regulations. The Respondent's argument, which was accepted by the judge, was that the initial decision was defective because (necessarily) it did not address the subsequent events relating to the Respondent's concerns about the possibility of her ex-partner trying to find out where she and their daughter lived, the potential risk of violence in the Lambeth area, and the Respondent's consequential transfer to a different refuge located in the London Borough of Southwark. Accordingly Mr Westgate submitted that it was incumbent upon the SRO, before making her final decision, to write a further letter to the Respondent, notifying her that the SRO was nonetheless minded to affirm the initial decision and her reasons for so doing, and giving the Respondent, or someone on her behalf, an opportunity to make further submissions orally or in writing, or both orally and in writing.
41. In my judgment, and despite Mr Lintott's submissions that the identification of a "deficiency" was a factual matter for the SRO's decision alone, there was indeed a material deficiency in the initial section 184 decision; and the judge was right so to conclude. That was because the Appellant's initial decision in its letter of 7 March 2012 that "we are satisfied that you would not be at risk of domestic violence in the [Lambeth] area", necessarily did not, and could not, take into account the subsequent evidence relating to the Respondent's new concerns about her ex-partner tracking her down at the Lambeth refuge, and her consequent move to the Southwark refuge.
42. It is clear from the court's decision in Banks v Kingston-upon-Thames RLBC [2008] EWCA Civ 1443 that a purposive interpretation has to be given to Regulation 8(2) and that an original decision may subsequently be rendered "deficient" in the light of intervening events which occur between the date of the original decision and that of the review decision; see e.g. per Lawrence Collins LJ at 70-72.
43. In the present case there was, in my view, no, or no adequate, consideration by the SRO as to whether the initial decision was deficient on these grounds. That was perhaps not surprising since it was only after the SRO's original "minded to find" letter dated 30 March 2012 that the SRO was informed, in the further written representations made by the Respondent's solicitors dated 11 July 2012, of the Respondent's fears that her ex-partner was seeking to locate her and her subsequent move to the Southwark refuge in the light of those concerns. The nearest that the SRO came to considering whether there had been a deficiency in the initial decision on these grounds was her statement at page 5 of the review decision that:

"it is impossible to accept your representatives submissions that this council failed to make enquiries whether you were at risk of violence in Lambeth, when you never made such a claim".

44. She did however in her section 202 review decision extensively and carefully consider the further written representations made in relation to the issue of "risk of violence in the Lambeth area". She concluded that there was no such risk.
45. The question is therefore whether, notwithstanding that the Respondent's written representations in relation to risk of violence in the Lambeth area had been carefully considered by the SRO, she was nonetheless under a procedural obligation to serve a further "minded to find" notice under Regulation 8(2).
46. In my judgment the SRO was indeed required, in the events which had happened:

i) to conclude that there had indeed been a material deficiency in the initial decision because of the superseding events; and

ii) as a result, to send a further "minded to find" letter indicating the reasons why she was nonetheless minded to uphold the initial decision, thereby giving the Respondent an opportunity to make further written or oral representations commenting on the SRO's reasons for discounting the risk of future violence in Lambeth.

The SRO was required to adopt the mandatory Regulation 8(2) procedure, notwithstanding that she had already received the Respondent's written submissions in relation to the issue of violence in Lambeth and considered them, and irrespective of whether she thought that they would not make any difference to her decision. That was because, unless she did so, the Appellant was denied the opportunity of commenting on the SRO's reasons why the risk of future violence has been discounted.

47. That such a procedural obligation arises is apparent from decisions such as Lambeth LBC v. Johnston [2008] EWCA Civ 690 and R(Mitu) v Camden [2011] EWCA Civ 1429. In the latter case Lewison LJ (with whom Sullivan LJ agreed) stated at [22]- [27] as follows:

22 In the present case the question is not (or not simply) whether Ms Brown's original decision can stand or even whether Mr Bond's ultimate conclusion can stand. It is whether, on the way to reaching his ultimate conclusion, Mr Bond ought to have given a "minded to find" notice under Regulation 8 (2) . This is a procedural rather than a substantive question. It is not an issue that Lord Neuberger addressed (because it did not arise in Holmes-Moorhouse v Richmond-Upon-Thames LBC).

23 In Lambeth LBC v Johnston Rimer LJ said (§ 51):

"…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 …"."

24 Rimer LJ went on to say (§ 52) that a "minded to find" notice may be more valuable in some cases than in others. On the facts of that case the applicant knew what was in issue and had in fact had the chance to make representations on those issues. Nevertheless this court held that the reviewing officer had a duty to give a "minded to find" notice. As Rimer LJ explained (§ 53):

"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."

25 In her very attractive argument Ms Godfrey, appearing for Camden, submitted that a flaw in a decision would only amount to a "deficiency" if (a) it was a relevant flaw, in the sense that it was a flaw in the reasoning on an issue on which the reviewing officer was minded to find against the applicant despite the existence of that flaw; and (b) it was a sufficiently serious flaw to justify the invocation of the additional procedural safeguard. Thus a flaw in the reasoning of the original decision on an issue on which the reviewing officer was minded to find in the applicant's favour would not count as a "deficiency".

26 The first of these submissions entails writing words into the Regulation that are not there. This particular appeal to a purposive construction, in my judgment, narrows the purpose of the Regulation as explained by Carnwath LJ (see §14 above). It also narrows Carnwath LJ's authoritative explanation of what a "deficiency" means (see § 16 above). The second of these submissions does not take into account Lawrence Collins LJ's explanation of how one is to approach the question when the additional procedural safeguard is justified (see §19 above). In the case of a Regulation which is plainly intended to give protection to an applicant who is (or is likely to be) homeless, I see no warrant for excluding from the ambit of the Regulation cases which fall within its literal words.

27 If one is looking for an analogy, it seems to me that a proper analogy is an application for permission to appeal to this court. The Court will consider the application on paper. If permission is refused then in almost all cases the appellant is entitled to renew his application orally. In the case of a review under section 202 the "minded to find" letter gives the applicant one last chance to persuade the reviewing officer not to confirm the decision. I do not consider that the applicant should be deprived of that chance because the reviewing officer thinks that further representations will make no difference. That, in my judgment, would be to prejudge the very issue that further representations might be expected to address."

48. Rix LJ agreed with the result that, in the circumstances of the case, a further "minded to find" letter should have been sent, but stated that he differed from Lewison LJ in relation to the nature of the deficiency or irregularity required to trigger the obligation to send a further letter. At [34] he said:

"34 Where, with respect, I differ from Lewison LJ is that I would regard the jurisprudence of this court as teaching that the Regulation is to be interpreted purposefully and not literally, and that in that connection it requires something more than the mere finding of any deficiency or irregularity: what is needed is the finding of a deficiency or irregularity of sufficient importance to the fairness of the procedure to justify an extra procedural safeguard. That involves the reviewer both in finding an inadequacy in the original decision and in an evaluative judgment that the inadequacy is material to the fairness of the procedure. It seems to me that this is the result of the decisions in this court in Hall v. Wandsworth LBC and Banks v. Kingston-Upon-Thames RLBC."

49. In my view, irrespective of such difference, if any, which there might have been between the respective approaches of Lewison LJ and Rix LJ in Mitu, in the present case there can be no doubt that the inevitable "failure" of the initial review to address the subsequent concerns about risk of violence in Lambeth and the Respondent's consequential move to a different refuge in Southwark, was a deficiency or irregularity of "sufficient importance to the fairness of the procedure to justify [the] extra procedural safeguard" required by Regulation 8(2); see per Lewison LJ in Mitu at [19].
50. Accordingly, in my judgment the judge was correct to conclude that a further "minded to find" letter should have been sent by the Appellant.

Disposition

51. Accordingly, I would allow this appeal to the extent of setting aside paragraph (2) of the judge's order (which imposed a mandatory requirement upon the Appellant to secure that accommodation was available for occupation by the Appellant and her daughter). The effect of that order will be that the Appellant will be required to determine the outstanding request for a review pursuant to section 202(4) Housing Act 1996.

Lord Justice Kitchin

52. I have had the benefit of reading in draft the judgments of Gloster and Lewison LJJ. I agree with both of them, and with the disposition of the appeal that they propose.

Lord Justice Lewison:
 


53. I agree both with the judgment of Gloster LJ, and the disposition of this appeal that she proposes. I add a short judgment of my own in deference to the excellent arguments on both sides.
54. Section 198 of the Housing Act 1996 applies where a local housing authority would be subject to the duty under section 193. Section 193 applies where a local housing authority are satisfied that an applicant is unintentionally homeless and in priority need. In such a case the duty is a duty to secure that accommodation is available for the applicant. In our case both the local housing authorities concerned (Wandsworth LBC and Lambeth LBC) were so satisfied. So the issue is not whether NJ will be accommodated. She will. Lambeth have accepted the full housing duty in her case. But she does not want to live in Lambeth. She wants to live in Wandsworth.
55. The relevant parts of section 198 are as follows:

"(1) If the local housing authority would be subject to the duty under section 193 (accommodation for those with priority need who are not homeless intentionally) but consider that the conditions are met for referral of the case to another local housing authority, they may notify that other authority of their opinion.

(2) The conditions for referral of the case to another authority are met if—

(a) neither the applicant nor any person who might reasonably be expected to reside with him has a local connection with the district of the authority to whom his application was made,

(b) the applicant or a person who might reasonably be expected to reside with him has a local connection with the district of that other authority, and

(c) neither the applicant nor any person who might reasonably be expected to reside with him will run the risk of domestic violence in that other district.

…

(3) For the purposes of [subsection] (2)… "violence" means—

(a) violence from another person; or

(b) threats of violence from another person which are likely to be carried out;

and violence is "domestic violence" if it is from a person who is associated with the victim."

56. NJ left her home in Leicester as a result of domestic violence. She took a train to London. She was put in touch with Refuge, a charity which operates a network of refuges throughout the country. Their only available space in London was at a refuge in Lambeth where she was accommodated between June 2011 and May 2012. When she applied to Wandsworth for accommodation in January 2012 she had been accommodated in the refuge in Lambeth for some seven months, and by the time of the initial decision she had been accommodated there for some eleven months. Wandsworth decided to refer her to Lambeth on the ground that she had a local connection with Lambeth.
57. The relevant ground on which Wandsworth made that decision was that NJ was "normally resident" in Lambeth and that residence "is or was of [her] own choice". It was not disputed that NJ was, at the relevant time, normally resident in Lambeth. The question was: was that residence of her own choice?
58. In Al-Ameri v Kensington and Chelsea Royal London Borough Council [2004] UKHL 4 [2004] 2 AC 159 two asylum seekers had been housed in Glasgow while their applications for asylum were processed. The scheme under which they had been housed was administered by the National Asylum Support Service and was known as the compulsory dispersal scheme. The statutory underpinning of the scheme was the Immigration and Asylum Act 1999. Section 96 of that Act empowered the Secretary of State to provide accommodation. But section 97 (2) prohibited him from having any regard to "any preference that the supported person or his dependants (if any) may have as to the locality in which the accommodation is to be provided." In accordance with the scheme the two asylum seekers were sent to Glasgow. It was accepted that Glasgow was the place where they were normally resident. The question was whether that was the district of their choice. The House of Lords unanimously said "no". Lord Bingham said:

"So the question to be asked of each respondent is "Did you reside in Glasgow of your own choice?" To that question there can be, in the case of each respondent, only one possible answer: "No. I was given no choice about where I resided. I resided in Glasgow because, and only because, that was the only place where I was offered accommodation and the means to meet the most basic of human needs.""

59. Lord Hope said:

"It is not enough to show that the person was content to reside there, or that he went there voluntarily. Nor is it enough to show that he had a choice between going to the place chosen for him by NASS and staying where he was when the offer was made. The statutory language does not permit that approach. What it requires is that he chose to live in that particular district. The choice to live in that particular district must have been his own choice, and not one that was dictated to him by the choice of someone else."

60. But Lord Hope also drew attention to the features of the compulsory dispersal scheme:

"It is clear beyond any doubt that the destitute asylum-seeker has no choice as to the locality in which support under section 95 of the 1999 Act is to be provided to him. The law and the practice are at one on this point. Section 97(2) requires the Secretary of State to disregard any preference that the supported person and his dependants may have about this. He may make it clear that he wants to remain in London, or he may make it clear that he wants to go to Glasgow. But, whatever his preference may be, it is to be disregarded. So far as the statute is concerned, the choice lies with the Secretary of State and with him alone."

61. Lord Scott said:

"The question asks whether the individual chose that particular district to be the district of his or her residence. It is directed to the choice of the district. It seems to me clear on the evidence that neither Mr Al-Ameri nor Mrs Osmani chose Glasgow. Glasgow was chosen for them by NASS. The circumstance that each of them decided to travel with their respective families to Glasgow and to take up residence there rather than to expose themselves to the privation and uncertain future that would have followed upon their failure to do so may be represented as a choice. But it was not the choice that section 199(1)(a) is directed to."

62. The decision in that case has been reversed by section 11 of the Asylum and Immigration (Treatment of Appellants etc) Act 2004 inserting sub-section 199 (6) into the Housing Act 1996. But the reasoning of the House of Lords on what amounts to choice remains binding on this court.
63. The initial decision letter in our case said:

"You stated that you were told that the only refuge space available in London was in Brixton and seem to be suggesting that you did not have a real choice as to where you lived."

64. In her "minded to find" letter of 30 March 2012 the reviewing officer said that she was minded to find against NJ on the question of normal residence of choice.
65. This gave NJ, with the aid of her solicitors, the chance to marshal whatever evidence they chose in order to show that her residence in Lambeth was not residence of her choice. In their letter of 11 July 2012 NJ's solicitors dealt with the question of choice as follows:

"Our client was advised and referred to the refuge via Safeguard Project. She was advised that this refuge was the only refuge in London with a vacancy at the time and she was clearly under duress as she had to move away from her home quickly … and needed to leave the Leicester area…"

66. The reviewing officer's decision of 26 July 2012 said:

"You may wish to argue that you did not have a real choice as to where you lived because you were advised that the only refuge space in London was located in Lambeth. I accept that you may have found the support [of] a Women's Refuge in Lambeth desirable. However, there is nothing to suggest that it was essential to your well being, or that such support could only have been offered by this particular refuge out of all women's refuges in the UK."

67. It is important to note that NJ's case as presented to Wandsworth was not that the refuge in Lambeth was the only refuge space available anywhere. It was that the refuge space in Lambeth was the only refuge space available in London. Suppose, for example, that when NJ contacted Refuge, they offered her a place in Truro or Newcastle; but when she said that she wanted to go to London, they said that the only available refuge space in London was in Lambeth. Or suppose that, wishing to live in London, she approached more than one provider of refuges, but the only one that had an available space in London had a space which happened to be in Lambeth. In those circumstances it would, in my judgment, have been open to Wandsworth to find as a fact that she chose to live in Lambeth. In Al-Ameri the asylum seekers had no choice at all. There was only one national agency that allocated housing and that agency was required to ignore any preference of the asylum seeker. That, in my judgment, is some way away from our case. In our case:

i) NJ chose to leave her home in Leicester. I would accept that, because she left as a result of serious domestic violence, that was not a relevant choice for the purposes of section 198. But:

ii) She chose to come to London as opposed to any other city in the UK.

iii) She chose to approach a charity providing refuges as opposed to presenting herself to a local housing authority as homeless.

iv) She chose the particular charity as opposed to any other charity providing women's refuges.

v) When offered the place in Lambeth she chose to accept it as opposed to trying to find another charity which might have been able to accommodate her in a district more to her liking; or at that stage applying to a local housing authority as a homeless person.

68. Given this cumulative series of choices, in my judgment on the material before the reviewing officer she was entitled to find that NJ was normally resident in Lambeth; and that that residence was residence of her choice. The judge not only quashed Wandsworth's decision. He went on to decide that NJ had no local connection with Lambeth. In my judgment he was wrong on both counts. Even if Wandsworth had not asked itself the right question, there was still the possibility that further investigation of the facts would have revealed that NJ had indeed made a choice, even if it was a limited choice from a set of restricted options. A choice from the menu is no less a choice than a choice à la carte. I would allow the appeal on that issue.
69. That leads on to the second issue. Under regulation 8 of the Allocation of Housing and Homelessness (Review Procedure) Regulations 1999:

"(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."

70. In my judgment the following propositions are established by authority:

i) Regulation 8 (2) imposes two mandatory duties on a reviewing officer: (a) a duty to consider whether there is a deficiency in the original decision and (b) if the reviewing officer considers that there is a deficiency a duty to serve a "minded to find" notice: Lambeth LBC v Johnston [2008] EWCA Civ 690 [2009] HLR 10 at [51].

ii) Whether a reviewing officer has complied with these duties is capable of challenge on public law grounds: Hall v Wandsworth LBC [2004] EWCA Civ 1740; [2005] HLR 23 at [29]; Lambeth LBC v Johnston at [51].

iii) The reviewing officer should treat regulation 8 (2) as engaged whenever he or she considers that an important aspect of the case was either not addressed, or not addressed adequately, by the original decision-maker: Hall v Wandsworth LBC at [30].

iv) That inadequacy may arise because of a subsequent change in the facts which was unknown to the original decision-maker, in which event the original decision may have become deficient: Banks v Kingston Upon Thames RLBC [2008] EWCA Civ 1443 [2009] HLR 29 at [71].

v) The deficiency must be one that is of sufficient importance to the fairness of the procedure as to justify an extra procedural safeguard: Hall v Wandsworth LBC at [29]. Whether a deficiency has this character is to be tested by asking whether further representations could have made a difference to the decision that the reviewing officer had to make: Banks v Kingston Upon Thames RLBC at [72]. If further representations could have made no difference to the decision then it is not a relevant deficiency: Ibrahim v Wandsworth LBC [2013] EWCA Civ 20 at [38]. But the reviewing officer must be careful not to prejudge that issue: Mitu v Camden LBC [2011] EWCA Civ 1249 [2012] HLR 10 at [27].

71. In the light of those principles I would hold as follows:

i) Where new facts emerge that relate to an important issue in the case the reviewing officer must consider whether those new facts expose a deficiency in the original decision.

ii) They will expose a deficiency in the original decision if in the light of those new facts that issue was either not addressed or not adequately addressed.

iii) Although it will usually be the case that there was a deficiency in the original decision if the reviewing office decides to uphold it on different grounds, there may yet be a deficiency if the reviewing officer decides to uphold the decision on the same grounds.

iv) If the reviewing officer comes to the conclusion that there was a deficiency (in the extended Banks sense) in the original decision but nevertheless is minded to uphold it (whether on the same or on different grounds) he or she must serve a "minded to find" notice.

v) If the reviewing officer concludes that there is no deficiency, that conclusion is susceptible to judicial review on the usual public law grounds.

72. As mentioned, one of the conditions for referral that must be met is that the applicant will not run the risk of domestic violence in the other district to which she is to be referred. In our case the original decision letter stated:

"Although the council is satisfied that you left your Leicester address due to domestic violence there are no grounds upon which to exercise our residential discretion not to refer your application to the London Borough Lambeth as we are satisfied that you would not be at risk of domestic violence in that area."

73. Not surprisingly there was no reasoning to amplify that statement, because the issue had not then been raised. In response to that statement NJ's solicitors provided new material. The new material raised was the allegation that NJ had been seen by associates of her ex-partner in the Brixton area; and that in consequence there was a risk that she would be exposed to domestic violence in Lambeth. That, indeed, she said was the reason that she had moved from the refuge in Lambeth to another refuge in Southwark. The letter was supported by a letter from the police in Leicester and from the refuge itself. This material clearly went to the issue under section 198 (2) (c) whether NJ would run the risk of domestic violence in Lambeth. If the answer to that question was "yes" then the conditions for a referral by Wandsworth to Lambeth would not have been met. The reviewing officer did not serve a "minded to find" notice before proceeding to her decision to uphold the original decision. That she did not do so can only be attributable to one of two reasons:

i) In breach of duty under regulation 8 (2) she failed to consider whether there was a relevant deficiency; or

ii) Having considered the question she came to the conclusion that there was no deficiency in the original decision.

74. We do not have any evidence from the reviewing officer which of these is correct, but the probability is that it was the latter (compare Ibrahim v Wandsworth LBC [2013] EWCA Civ 20).
75. As the judge pointed out, the reviewing officer dealt with the new material point by point explaining why she did not consider that NJ was at risk of domestic violence in Lambeth. That explanation occupied two closely typed pages of a seven page letter. It clearly went to the heart of the case. The very fact that the reviewing officer thought it necessary to deal with the question in such detail, where the original decision letter merely stated a one sentence conclusion without reasons, seems to me to show that there was in fact a deficiency in the original decision, in the sense that it did not adequately address the question of the risk of domestic violence in Lambeth; and that the reviewing officer had identified that deficiency. Mr Lintott emphasised that the question was not whether any deficiency required the service of a "minded to find" notice. That duty was restricted to a case in which the reviewing officer considered that the deficiency was such as to affect the overall fairness of the review. That was a matter for her decision and it was an evaluative decision that was capable of challenge only on public law grounds.
76. However, the criterion to be applied in making that evaluative judgment is whether further representations could have made a difference to the decision that the reviewing officer eventually made. This is not a question of discretion, because the obligation to serve a "minded to find" notice is mandatory. I am in no doubt that if NJ had been permitted to make further representations on the question of the risk of domestic violence in Lambeth those representations could have made a difference to the reviewing officer's decision. I do not see how any other conclusion is possible. In my judgment it must therefore follow either that the reviewing officer applied the wrong test; or that she reached a decision that no reasonable reviewing officer, directing herself properly in law, could have reached.
77. Accordingly in my judgment the judge was correct on this issue. It follows, in my judgment, that the actual decision must be quashed. But because of the conclusion I have reached on the first issue, I would not uphold the judge's order requiring Wandsworth to house NJ. I would remit the matter to Wandsworth for reconsideration.