England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WANDSWORTH COUNTY COURT
HHJ REDGRAVE

		Royal Courts of Justice Strand, London, WC2A 2LL
		30th January 2013

Sir Stephen Sedley:

The issue

1. How should the courts deal with a plainly deficient homelessness decision when the deficiency has had no adverse consequences for the applicant?
2. The question arises because of the formulation of regulation 8 of the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999:

Procedure on a Review

8. (1) the reviewer shall, subject to compliance with the provisions of regulation 9, consider-

(a) any representations made under regulation 6 and, in a case falling within regulation 7, any responses to them; 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-

that the reviewer is so minded and the reasons why; and

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.

The facts

3. What has happened in the present case is in its essentials the following. The applicant (now the appellant), a Somali national with three dependent children, was evicted from private rented accommodation at the conclusion of an assured shorthold tenancy because, or so her landlord alleged, she had failed to pay the first eight weeks' rent. Since during those eight weeks she had received the full amount of rent in housing benefit (from then on payments had been made direct to the landlord), her failure to secure renewal of the tenancy was considered by Wandsworth council to be her own fault, with the result that she was now intentionally homeless.
4. The applicant's answer was that she had paid the first eight weeks' rent to the landlord's brother (who had made the letting in the landlord's absence abroad) as his agent. The local authority accepted the landlord's denial that he had ever received the money without asking the brother for his account. While the brother might well have denied that he had been paid (there were no receipts), he might also have admitted payment but asserted that he had passed it on to the landlord. In that event the dispute would be between the brothers and the applicant be in the clear. But the reviewer upheld the original decision not to contact the brother. The question whether this was fair, or indeed rational, was canvassed on the s.204 appeal before the county court. It has not been revived before us, evidently because it was not part of the second appeal issue on which Lewison LJ gave permission to appeal; but it might well come alive again if the review were to be remitted for reconsideration as a result of this appeal.

The original decision

5. The decision letter, dated 8^th April 2011, spelt out in detail the council's reasons for considering the applicant to be intentionally homeless. It concluded:

"The Council's obligation towards persons considered to be in priority need but intentionally homeless is limited to providing them with advice and appropriate assistance to enable them to find their own accommodation. This means that you are not entitled to rehousing by the Council under the provisions of the above-mentioned Act. In order for you to obtain advice and assistance about the means by which you might find your own accommodation, I have arranged an appointment for you on:

Wednesday 20^TH April at 9.15 a.m. with the Council's Housing Options Team.

As you have dependant children I will arrange for you to be referred to our Social Services Department, Children & Families division, in order that they can make an assessment of any further assistance that you might be eligible to, under the provisions of the Children Act 1989.

As you are in temporary accommodation provided by the Council, legal proceedings will be taken to repossess this accommodation."

6. This was seriously erroneous. The council's obligation was not limited to providing advice and assistance. Far from being entitled simply to evict the applicant as threatened, under s.190(2) the council had an obligation to her, as a person with priority need because of her dependent children, to secure that accommodation was available to her for such period as they considered would give her a reasonable opportunity of securing accommodation for herself.
7. Battersea Law Centre wrote on the applicant's behalf requesting a review pursuant to s.202. The letter recanvassed the merits but failed to draw attention to the deficiency I have described. This may have been, however, for a reason which occupies centre stage in the present appeal: the local authority had not acted on the decision letter; instead, by letter of 3 May 2011, it had agreed to provide interim accommodation pending the review, and it has continued to provide such accommodation pending appeal first to the county court and now to this court. In real life, in other words, no detriment has at any stage flowed from the error in the decision letter.
8. Although the reviewer failed entirely to pick up the error, her decision letter now correctly stated the council's legal obligation:

"For all of these reasons, I have upheld the decision that you are in priority need, but that you are intentional homelessness. This means that the Council now owes you a duty to secure accommodation for your occupation for such a period that will give you a reasonable opportunity of making your own housing arrangements and to provide you with advice and assistance in any efforts you may make to secure accommodation for yourself.

The decision set out in this letter represents the Council's decision on review and, under the 1996 Act, concludes all internal review processes. In reaching this decision I have found no irregularity, defect or deficiency in the decision-making process adopted by the Council and in the absence of a material change in your circumstances, I regret to inform you that the Council will remain satisfied that you are intentionally homeless."

The first appeal

9. On appeal to the county court under s.204, Judge Redgrave held that the reviewer had been entitled to conclude that the misstatement in the decision letter – which she described as a "factually incorrect assertion" and a "factual error":

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

The arguments

10. It is submitted by Adrian Marshall Williams for Ms Ibrahim that the reviewer was bound by simple rationality to conclude that there was a deficiency in the original decision. The error was not superficial or trivial: it was radical. It followed that the reviewer had been under an obligation to notify the applicant that she was minded to uphold the decision nevertheless, and to consider anything the applicant said in response before coming to a conclusion. The failure, submits Mr Marshall Williams, is fatal to the review decision regardless of the likelihood of a relevant or effective response from the applicant.
11. For the local authority, David Lintott submits, on the basis of authority to which I am about to turn, that unless the deficiency amounts to "something lacking of sufficient importance to the fairness of the procedure to justify an extra-procedural safeguard", it is not covered by the regulation 8(2) process, and that whether it is in this class is for the reviewer alone to judge, subject only to Wednesbury-level oversight by the courts.

The authorities

12. The meaning and effect of regulation 8 in the context of part VII of the Act have been examined and explained in a good number of cases. It is sufficient for present purposes to set out the following extracts.
13. In Hall v Wandsworth LBC [2004] EWCA Civ 1740, Carnwath LJ (as he then was), speaking for the court, said:

"[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 o 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 [2003] 1 All ER 731 at [114], [2003] 2 AC 430 at [114] per Lord Walker of Gestinthorpe), on which the officer's conclusion will only be changeable on Wednesbury grounds.

[30] To summarise, the reviewing officer should treat reg. 8 (2) as applicable, not merely when he finds some significant legal or procedural error in the decision, but whenever (looking at the matter broadly and untechnically) he considers that an important aspect o he case was either not addressed, or not addressed adequately, by the original decision-maker. In such a case, if he intends to confirm the decision, he must give notice of the grounds on which he intends to do so, and provide an opportunity for written and (if requested) oral representations."

14. To this must be added what Lawrence Collins LJ (as he then was) said on behalf of the court in Banks v Kingston-upon-Thames RLBC [2008] EWCA Civ 1443:

"71. A literal interpretation of reg. 8 (2) would make it difficult to reach the conclusion that "there is a deficiency… in the original decision". On a literal approach the natural meaning of the words suggests that the focus is on the position as at the date of the decision, and my initial inclination was that there would be no deficiency in the type of case with which this court is concerned. But an important objective of reg. 8 (2) is to ensure that, where the reviewing officer is minded to confirm a decision on different grounds, the applicant should be given an opportunity to make representations. I was convinced by the argument for Mr Banks that a purposive construction should be given to reg. 8 (2) to ensure that its objective is achieved. Mr Banks having become homeless, the original decision had become deficient in that it did not address the question of priority need. In fact (and I shall revert to this point) in case of this kind, where there has been a change of circumstances, a fresh application can be made, and the objective can be achieved equally in that way. But this is a system in which the applicant will be acting in person, and I consider that reg. 8 (2) should be interpreted so as to ensure that the individual is afforded the procedural safeguard even if the review route is taken."

15. In Mitu v Camden LBC [2011] EWCA Civ 1249 Lewison LJ helpfully expanded the explanation of regulation 8 without departing from the exegesis in Hall:

"12. Section 184 (1) contemplates two decisions. The first is whether the applicant is eligible for assistance. The second is whether any duty, and if so what duty, is owed to him under the Act. The second decision is thus concerned with the duty owed by the local housing authority; not whether the applicant is intentionally homeless or has a priority need. These questions are, in the terminology of s. 184 (3), "issues" which need to be determined on the way to the ultimate decision. Nor is the decision concerned with the local housing authority's powers as (opposed to duties).

13. Thus in the present case the initial decision under s. 184 was a decision that Camden had a duty to provide advice and assistance. Section 203 (4) distinguishes between a "decision" and an "issue". Regulation 8 (2) also speaks of a deficiency in a "decision" and distinguishes that from "issues" on which the reviewer is minded to find against the applicant. Thus a thread running through both the primary legislation and regulations is a clear and consistent distinction between the decision on the one hand, and issues on the other. Mr Russell argues that it is the decision that is subject to review, and that it is wrong t split a decision into discrete issues in order to consider whether there is a deficiency in the decision. In my judgment he is right."

16. One House of Lords decision also requires attention. In Holmes-Moorhouse v Richmond-upon-Thames LBC [2009] UKHL 7, Lord Neuberger said:

"50. …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.

51. Further, as the present case shows, a decision can often survive despite the existence of an error in the reasoning advanced to support it. For example, sometimes the error is irrelevant to the outcome; sometimes it is too trivial (objectively, or in the eyes of the decision-maker) to effect the outcome; sometimes it is obvious from the rest of the reasoning, read as a whole, that the decision would have been the same notwithstanding the error; sometimes there is more than one reason for the conclusion, and the error only undermines one of the reasons; sometimes, the decision is the only one which could rationally have been reached. In all such cases, the error should not (save, perhaps, in wholly exceptional circumstances) justify the decision being quashed."

Discussion

17. Two things stand out in regulation 8(2). First, the governing judgment is that of the reviewer – that is, the person appointed on behalf of the local housing authority to review an adverse decision on a claim for rehousing under Part VII of the Housing Act 1996, which is captioned "Homelessness and threatened homelessness". Secondly, the phrase "deficiency or irregularity" is not qualified by any adjective such as "material" or "significant".
18. If this regulation were unglossed by authority, I would have thought that, beyond the ubiquitous de minimis principle which shuts out trivial or marginal criticisms, the omission of any qualifying adjective is deliberate. It would mean that, while it remains open to the reviewer to find that a deficiency or irregularity was not such as to affect the decision, he or she can only do this after giving a "minded to" notice and considering the applicant's response.
19. In Home Secretary v AF [2008] EWCA Civ 1148 (upheld on appeal [2009] UKHL 28), I sought to explain why such an approach is called for by elementary principles of justice:

113. Far from being difficult, as Lord Brown tentatively suggested it was, it is in my respectful view seductively easy to conclude that there can be no answer to a case of which you have only heard one side. There can be few practising lawyers who have not had the experience of resuming their seat in a state of hubristic satisfaction, having called a respectable witness to give apparently cast-iron evidence, only to see it reduced to wreckage by ten minutes of well-informed cross-examination or convincingly explained away by the other side's testimony. Some have appeared in cases in which everybody was sure of the defendant's guilt, only for fresh evidence to emerge which makes it clear that they were wrong. As Mark Twain said, the difference between reality and fiction is that fiction has to be credible. In a system which recruits its judges from practitioners, judges need to carry this kind of sobering experience to the bench. It reminds them that you cannot be sure of anything until all the evidence has been heard, and that even then you may be wrong. It may be, for these reasons, that the answer to Baroness Hale's question – what difference might disclosure have made? – is that you can never know.

114.This is why Megarry J's celebrated dictum in John v Rees about the fallibility of judgment based on partial evidence matters so much. Judges are not proof against the human delusion that one has heard enough to be sure that there is no answer. They have to guard themselves against it, and the way in which the law ensures they do so – not only the common law but all the systems governed by the European Convention on Human Rights and many others beside – is to insist, not that everything must be known before judgment is given, but that everyone affected must have had a proper chance (which they may of course forfeit) to advance as much material as may help the tribunal in reaching a judicious conclusion.

20. It needs also to be borne in mind - and the drafter of the regulations will have had well in mind - that many applicants lack advice or representation, and that of these a good many will have poor literacy and language skills. It is unfair and unrealistic to expect every material error to be picked up by such applicants, and both fair and realistic to expect the reviewer to be alert to possible deficiencies and willing to hear what the applicant says about them before deciding whether they are material.
21. It would follow that what the reviewer (whose appointment makes the local authority judge in its own cause) considers to be the case cannot lawfully be arrived at by assuming that there can be no answer: the regulation, reflecting elementary justice, would forbid this.
22. But a body of authority, the essential parts of which I have cited, has construed the regulation differently. It has, in effect, written in after the phrase "deficiency or irregularity" the words "affecting the fairness of the procedure". This, it is argued before us, enables the local authority's reviewer to conclude without consulting the applicant that, notwithstanding the presence of a patent error in the original decision, there is no deficiency or irregularity because no harm to the applicant has resulted.
23. It is now clear that the double error in the decision letter sent to Ms Ibrahim was irrelevant to the outcome, and that the decision to treat her as intentionally homeless, albeit in priority need, would have been the same regardless of the error. But that does not mean that the error was not a deficiency, which for my part I would consider it to have been, since it went to the heart of the council's obligations and the applicant's entitlements.
24. It is unnecessary to decide whether the reviewer could nevertheless legitimately decide that it was not a deficiency, since she did not call her own attention to it at all. It follows that the question whether she should have put it to the applicant in a "minded to" notice does not arise.
25. What does arise is the question whether what actually happened renders the deficiency irrelevant. This is material to the exercise of the power of the court under s.204 (3) to "make such order confirming, quashing or varying the decision as it thinks fit". Irrelevance does not mean that the deficiency ceases to be a deficiency. It means that the court is expressly empowered to do substantial justice in relation to it in the light of its findings both of law and of fact.

Conclusion

26. Both the decision letter and the review letter are disturbing instances of poor public administration, the former for completely overlooking the duty to provide temporary accommodation for intentionally homeless persons in priority need, the latter for completely overlooking the oversight. Given the kind of clientele typically involved, I do not accept that such an obvious point had to be explicitly taken in order to be addressed by the reviewer.
27. For the reason given in paragraph 24 above, the potential need for a "minded to" notice does not arise.
28. The statutory appeal, however, is in substance an application for judicial review. Although it lacks the residual discretion which characterises judicial review at common law, it contains as hard law the principles of causation tabulated in Holmes-Moorhouse by Lord Neuberger, and is able by reason of s. 204(3) to give these practical effect.
29. In my judgment the failure of the reviewer to identify and address the deficiency in the original decision was, in the events which have happened, irrelevant to the outcome of the review, since that outcome, given the (now unappealed) finding of intentional homelessness, corresponded both in writing and in actuality with the council's true statutory duties.
30. It follows that the judge was right to "think fit" – in other words to choose - to confirm the review decision in relation to the patent errors in the decision letter. We are not called upon to decide whether she was also right to confirm it on the remaining issues canvassed before her.
31. This answer, while reflecting little credit on the process, has at least the advantage of acknowledging that the error in the original decision was, by any lexicographical test, a deficiency, but that it had in the event no adverse consequence for the applicant.
32. I would accordingly dismiss this appeal.

Lord Justice Etherton :

33. I agree that this appeal should be dismissed, but my analysis is rather different from that of Sir Stephen Sedley.
34. I would approach the appeal in three stages. First, it is necessary to consider whether the deficiency or irregularity relied upon as falling within Regulation 8(2) was one which related to a relevant decision. A relevant decision is one which was adverse to the applicant and which the applicant wished to challenge by way of review. Secondly, if there was such a deficiency or irregularity, the reviewer was obliged to consider whether the deficiency or irregularity was of sufficient importance to engage the duty of the reviewer to notify the applicant as provided in Regulation 8(2)(a) and (b). Thirdly, if the reviewer failed to carry out that exercise, or decided that the deficiency or irregularity was of insufficient importance to engage that duty, then that failure or that decision was only challengeable by way of an appeal under section 204 on judicial review principles.
35. So far as concerns the first stage, Lewison LJ in Mitu v Camden LBC [2011] EWCA Civ 1249, [2012] HLR 10, at [12] and [13] helpfully drew the distinction between decisions, on the one hand, and issues, on the other hand, in the context of Regulation 8(2). In some cases, as in the present case, there may be more than one decision in a decision letter. In the present case, it is necessary to distinguish between two decisions that were made: (1) that no duty was owed to the applicant under section 193(2) as a person with priority need and who was not intentionally homeless; and (2) that the council's duty to the applicant as a person in priority need but intentionally homeless was limited to providing advice and appropriate assistance to enable her to find her own accommodation. The deficiency or irregularity relied upon on this appeal is that decision (2) was wrong.
36. It is true that that decision was wrong since it did not correspond with the council's legal duty under section 190(2)(a) (to secure that accommodation was available for the applicant's occupation for such period as the council considered would give her a reasonable opportunity of securing accommodation for her occupation). That decision, however, was not a relevant decision for the purposes of Regulation 8(2) since (1) it was not the subject of any complaint by the applicant about the decision letter on the review; (2) it was not a decision which the reviewer upheld; and (3) the reviewer did not make any decision on the same matter against the interest of the applicant, but, on the contrary, stated the council's duty correctly. Accordingly, Regulation 8(2) was not engaged, and that is the end of this appeal.
37. The appeal in any event also fails on the second stage. On the one hand, I agree with the appellant that the reviewer did not consider the deficiency in this case. Reliance is placed by the council on the third paragraph of the final page of the review letter; but that is a probably a standard form and is certainly a general and wholly unparticularised statement. I do not consider the witness statements of Marcia Anglin, on behalf of the council, even if properly admissible, take the matter any further. I do not regard this as a "nit-picking" approach as Lord Neuberger described it in Holmes-Moorhouse v Richmond upon Thames LBC [2009] UKHL 7 at [50]. In the absence of any specific reference in the review letter to the deficiency in question and the absence of any complaint about the point in the applicant's representations on the review, the overwhelming probability is that it was not noted or regarded by the reviewer as a defect of any kind.
38. On the other hand, even if the reviewer had considered the deficiency, she would only have been bound to issue a "minded to" notice pursuant to Regulation 8(2) if the deficiency was, in the words of Carnwath LJ in Hall v Wandsworth LBC at [29], "of sufficient importance to the fairness of the procedure to justify an extra procedural safeguard". That would not have been an exercise in discretion since the obligation under Regulation 8(2) is mandatory: Lambeth LBC v Johnston [2008] EWCA Civ 690, [2009] HLR 10, at [51] (Rimer LJ). In the present case, however, the only conclusion which the reviewer could properly have reached was that the deficiency in the decision letter in the incorrect statement of the council's duty to the applicant under section 190(2) was entirely unimportant since (1) it was not the subject of any complaint by the applicant about the decision letter on the review; (2) it was irrelevant to the decision about which the applicant was complaining (viz that the council owed the applicant no duty under section 193(2)), (3) the council was in fact continuing to house the applicant, and (4) the reviewer could (and did) make clear in the review letter the proper duty of the council under section 190(2)(a). Accordingly, even if the reviewer had identified the deficiency relied upon on this appeal, she would have been bound to conclude that there was no requirement to serve a "minded to" notice under Regulation 8(2), and there would have been no scope for challenging the review letter under section 204.
39. For those brief reasons, I too would dismiss this appeal.

Lord Justice Mummery:

40. I agree with my Lords that this second appeal should be dismissed.
41. As their judgments, which I have read in draft, set out the relevant facts and procedural history, together with the relevant legislation, Regulation 8 of the 1999 Regulations and the relevant authorities, I shall confine myself to very brief reasons for my conclusion.
42. First, I agree with Sir Stephen Sedley that there was a deficiency in the original decision by Wandsworth on 8 April 2011. The deficiency was in the failure of Wandsworth to inform the applicant of their obligation to her to secure that accommodation was available to her for such period as they considered would give her a reasonable opportunity of securing accommodation for herself. Wandsworth agreed to provide and did provide her with accommodation pending the review and the appeals to the county court and to this court, so that the applicant has suffered no detriment in fact.
43. Secondly, I also agree with Sir Stephen Sedley that the review decision of 9 June 2011 failed to pick up that erroneous decision of Wandsworth , though it correctly stated the obligation of the Council to the applicant.
44. Thirdly, I agree with Etherton LJ that Regulation 8(2) is not engaged in the particular circumstances of this case. The applicant did not complain on the review about Wandworth's decision not to inform her of their obligation. The reviewer did not uphold that decision of Wandsworth. By stating Wandsworth's obligation correctly in the review letter of 9 June 2011 the reviewer made no decision against the applicant of which she was entitled to complain.
45. In these circumstances there was no error in the review decision that would have justified an order setting it aside. HHJ Redgrave was right to make the order dated 2 December 2011 dismissing the appeal from the review decision under s.204 of the Housing Act 1996.