England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON COUNTY COURT
HIS HONOUR JUDGE CARR
1CL40126

		Royal Courts of Justice Strand, London, WC2A 2LL
		12/04/2013

Lord Justice McCombe:

(A) Introduction

1. This is an appeal, brought with the permission of Arden LJ granted on 6 July 2012, from the judgment and order of 19 January 2012 of His Honour Judge Carr sitting at the Central London County Court whereby the learned Judge dismissed the Appellant's appeal under section 204 of the Housing Act 1996 from the Respondent's decision of 15 August 2011, taken upon a review under section 202 of that Act. The review under section 202 was of a decision of the Respondent of 14 June 2011 offering to the Appellant temporary accommodation at Flat A, 7 Cambridge Drive, London SE12 8AG ("the Flat") which the Respondent considered to be suitable temporary accommodation taking account of the Appellant's requirements.
2. On the appeal to the Judge the Appellant argued (in summary): (1) that she enjoyed a legitimate expectation that she would be made a final offer of accommodation and not an offer of temporary accommodation; (2) that no reasonable decision maker would have failed to address the Appellant's representations made on 15 June 2011 in making a further offer of the same temporary accommodation on 20 June 2011; (3) that it was unlawful and unfair "to make an unqualified offer of temporary accommodation on so incomplete a basis leading to a discharge of duty on refusal"; (4) that it was unfair to promulgate its review decision against an unrepresented Appellant and to rely upon a letter of 8 August 2011 asking the Appellant to provide further submissions which letter, it was alleged, the Appellant did not receive.

(B) Background Facts

3. The Appellant's dealings with the Respondent, as local housing authority, have a long history. It was and is common ground that from 2004 the Respondent accepted that it owed to the Appellant a duty, under section 193 of the 1996 Act, to secure that accommodation was available to her. From 23 April 2004 the Respondent has made available to the Appellant temporary accommodation at 97 Reginald Road, Deptford, London SE8, stating then (as they did on various occasions thereafter),perhaps unsurprisingly that,

"Due to high demand for all types of social housing it is likely to be a considerable time before you are made a permanent offer [of accommodation]".

4. It seems that the Respondent in due course accepted that for accommodation to be suitable for the Appellant, on medical grounds, it needed to fulfil certain access requirements and it was also required to be in the Lee Green Ward of the Borough, so that the Appellant could be close to her sister who is able to assist with her care. As a matter of practicality these requirements restricted still further the already limited availability of properties that might be offered to the Appellant as permanent accommodation.
5. It is necessary to recite in outline some of the events that occurred in the intervening period between 2004 and the 2011 decisions which are the subject of this appeal.
6. In May 2004 the Respondent decided that the Reginald Road property was suitable for the Appellant as permanent accommodation. That decision was confirmed on review in October 2005. However, that review decision was withdrawn on settlement of an appeal to the court under s.204. In February 2006 the Respondent confirmed that it agreed that the property was not suitable, but on three other occasions between December 2006 and April 2007, the same property was re-offered to her as permanent accommodation. On 8 June 2007, however, the Respondent acknowledged once more that the offer of the Reginald Road property as permanent accommodation had been withdrawn and invited the Appellant to continue to "bid" for other properties appearing on a register called "Homesearch". It was said that after 6 months the Respondent would make to her "one management offer" of permanent accommodation.
7. The reference to the making of a "management offer" seems to have related to a passage in the Respondent's allocation scheme for permanent accommodation, made under section 166A of the Act. The passage is to be found in paragraph 3.3 of the scheme and reads as follows:

"Priority Homeless

Under the Housing Act 1996, as modified by the Homelessness Act 2002, any council accepting someone as priority homeless has the right to make them only one suitable offer. If you are accepted by Lewisham Council as priority homeless, it may become necessary at any time after that for the Council to make you one offer in this way.

The Council can make a homeless household a management offer at anytime from the date they are accepted under Part VII of the Housing Act 1996. This may not be a property the applicant has bid for. Applicants can continue to bid through Homesearch. If an applicant bids and is also matched given a management offer for a different property they can be matched to either property, depending on their position on the list.

If you do not want to accept it, you are advised to request a review of the offer (see Section 3.8), as this offer will discharge the council's duty to rehouse you under the Homelessness Act 2002 "

It will be necessary to return later to another provision of this scheme.

8. On 30 September 2008 the Respondent made to the Appellant an offer of permanent accommodation at 4 Forster House, Whitefoot Lane, Bromley. It appears that the Appellant did not attend the interview to deal with this offer and the Respondent's action as a result was to write on 25 March 2009 stating that it was ending its duty to assist under section 193(7) of the Act.
9. In the meantime it appears that the Appellant had complained to the Local Government Ombudsman in respect of the failure of the Respondent to make an offer of suitable permanent accommodation. The complaint was referred back to the Respondent for consideration under its internal complaints procedure. The Respondent's Head of Strategic Housing wrote on 31 March 2009 rejecting the complaint, and citing the paucity of bids for accommodation made by the Appellant and the offer of the Forster House property. The Appellant was not content with the finding and wrote an extensive reply on 26 April 2009 challenging the decision. The letter asserted (among other things) that she had been assured that after about 2 years she would receive an offer of permanent accommodation in Lee Green Ward matching the qualities of her previous home; she said the number of her bids was irrelevant as she was on the "Direct Allocation Scheme"; she protested that the Forster Road property was not in Lee Green Ward and that, in any event, she had not actually received the formal offer.
10. The Appellant's complaints were then referred to an Independent Adjudicator within the Respondent's organisation. The Adjudicator, by letter of 15 June 2009, also rejected the complaint. In summary again, she found no evidence that there had been any assurance of an offer of permanent accommodation after two years. It was said that there was no medical evidence requiring the Appellant to be housed in Lee. Homeless applicants were expected to bid for properties notwithstanding the direct allocation system. Previous telephone offers of further temporary accommodation had been rejected by the Appellant because they had not met her stringent requirements. In short, the adjudicator concluded that the Appellant had to bid for properties and that the Council was not obliged to offer properties in general, or in Lee Green Ward in particular.
11. According to the papers before this court, the matter went back to the Local Government Ombudsman whose investigator wrote on 9 July 2009, indicating to the Appellant that she was not minded to pursue the matter but giving an opportunity for further representations.
12. There is then a copy letter of 10 December 2009 from solicitors for the Appellant addressed to the Respondent's legal department, mentioning having provided draft judicial review proceedings to the Respondent and threatening to issue them at the expiry of 14 days. (We have not seen any copies of the proposed judicial review papers.) There follows a letter from the solicitors to the Appellant stating that the Respondent had agreed to undertake (out of time) a review of the decision to offer the Forster Road property as alternative accommodation. The Appellant duly made representations for that review and in a decision dated 21 January 2010, the reviewing officer decided as follows:

"I have decided to withdraw the offer of accommodation at 4 Forster House, Whitefoot Lane BR1 5SD as it was not both suitable and reasonable for you to accept. I have asked Lewisham Homes to terminate eviction proceedings and also requested that your application be activated so that your one offer of accommodation is reinstated.

The following applies to your application and has been added to your details.

The Council should only nominate you to accommodation, within the Lee Green Ward.

Medical recommendations – Lift essential. Can not manage internal stairs, must have heating in all rooms.

I'm afraid that your request for a Council tenancy can not be granted as the London Borough of Lewisham no longer have local authority housing stock. Lewisham Council has transferred its stock to Housing Associations. All Social Housing is now owned by Housing Associations.

Please note that your application is on the 1 bedroom list as you currently have a 1 bed housing need and according to the Council's Allocations Policy, both you and the Council are able to bid for properties on your behalf."

13. There followed some inconclusive correspondence during 2010 and early 2011, in which the Appellant chased the Respondent for an offer of permanent accommodation within the Lee Green Ward area of the borough. Then on 20 April 2011 the Respondent made a "One (and Final) Offer Only" of permanent accommodation at 2 Callaghan Close, Glenton Road, London SE13. The Appellant rejected this as it was not within the "Lee Green Ward". On 10 May 2011 the Respondent acknowledged that while the property was in the Lee Green area it was not within Lee Green Ward. Perhaps generously it apologised "for any inconvenience or distress caused by making this offer", informed the Appellant that it had been withdrawn and that she could continue to bid on "Homesearch".
14. We now approach the housing offer made by the Respondent which ultimately gave rise to these proceedings. On 14 June 2011 the Respondent made an offer of temporary accommodation to the Appellant at the Flat. On 15 June 2011 the Appellant replied, specifically not requesting a review under section 202 of the Act, and stating her belief in an entitlement to an offer of permanent accommodation. The offer was repeated by letter dated 20 June 2011 and it received the same response from the Appellant. Each offer letter informed the Appellant as follows:

"If you feel that the offer of accommodation is unsuitable for your needs then you are entitled to request a review of the suitability. This review should be requested within 21 days of the offer.

…..

The consequences of refusing an offer of accommodation which the authority are satisfied is suitable for your needs, will be that the s.193 (5) duty is discharged. This means that no further accommodation will be arranged and you will be required to vacate your current temporary accommodation.

In order to avoid becoming homeless the Council recommends that you accept the property pending the result of the review. If you are unsuccessful with your review request, you will then be able to remain in the offered temporary accommodation, furthermore the Council will continue to owe you a full housing duty.

You cannot refuse the property because you prefer not to move. If you fail to attend the appointment and to sign up for the property, we will treat this as a refusal of the offer."

15. Notwithstanding the express statement by the Appellant in each of her response letters, the Respondent (in reaction apparently to the Appellant's response on 17 June to the first offer) treated the response as a request for review. On 8 August 2011, the Respondent wrote to the Appellant informing her of the review procedure. It seems to have been accepted before the judge below that this letter was received by the Appellant: see paragraph 17 of the judgment. There is, however, in our papers a copy of another letter, also dated 8 August 2011 (headed "Minded to letter" (sic)) which states:

"Before a local authority can make a decision on your case I have to be satisfied that any decision reached is balanced and that you have had an opportunity to comment on any evidence or interim conclusion that I or another officer may have reached. Based on your submissions received so far, there is a strong possibility that I will uphold the decision that the offer of Flat A, 7 Cambridge Drive, SE12 8AG was a suitable offer of alternate accommodation.

I am giving you the opportunity to provide representations and documentation in regard to the above raised issues. If I have not had a response from you by close of business on 15^th August, 2011, I will make the decision based on the information available to me."

The Appellant states that she did not receive this letter and there is no finding to the contrary by the judge. It is clear (as will be seen immediately below), however, that the reviewing officer was working on the basis that such a letter had been sent by the Respondent.

16. On 15 August 2011 the reviewing officer wrote his decision. This concluded as follows:

"You did not submit a review of the offer but you did make a complaint dated 15^th June. This letter has been passed to the review team despite your insistence that it is not a review request as you have raised issues that can only be dealt within the remit of a section 202 review.

Your complaint states the following:-

That the offer is invalid as it is an offer of temporary accommodation and not a permanent offer. Please be advised that due to the prescriptive nature of the recommendations it has been extremely difficult to locate a property that meets all of the criteria. Flat A, 7 Cambridge Drive was as you state an offer of temporary accommodation. However, you cannot refuse a property that meets all of the recommendations on your application simply due to the type of tenure. It is a valid offer of accommodation. Had you taken up the offer there was every possibility that it would have been offered to you as a permanent address shortly afterward due to it meeting your requirements via the temporary to permanent program.

I have asked you to provide any further submissions for the refusal via a Minded to (sic) letter dated 8^th August 2011. This letter advised you that based on your submission provided thus far I was minded to make the decision that the offered address was suitable. I requested this information to be presented by close of business 15th August, 2011. To date you have made no further submissions.

As a consequence of this I am making the decision based on the information on file. Having taken all information available to me into consideration, I find that Flat A, 7 Cambridge Drive was a suitable offer of accommodation."

The letter stated finally that the Respondent's duty to provide accommodation had come to an end and eviction proceedings would follow. The Appellant was informed that appeal on a point of law lay to the county court within 21 days. The Appellant duly appealed to the court by Appellant's notice filed on 30 August 2011.

17. There were the four grounds of appeal to the County Court set out in paragraph 2 above.

(C) The decision in the County Court

18. As already indicated, the judge dismissed the appeal. The crux of his decision on the alleged unfairness of the process is to be found in paragraphs 26 and 27 of the judgment in the following terms:

"26. It seems to me that to re-write or seek to suggest that the Local Authority should have re-written the relevant letters with an additional rider indicating to her in terms, not just that permanent accommodation would be looked at in the future, but it could be the same property that became that permanent accommodation under the transfer from temporary to permanent scheme is the council (sic) of perfection. It is to simply re-write with the benefit of hindsight a section of the letter because the situation is that, sadly, the Appellant now knows (and would have known I suspect shortly after she received the review letter) that there was no power for her to simply reject on the basis of tenure, which is what she clearly did [,] accommodation that was otherwise entirely suitable to her needs and requirements.

27. I am firmly of the view that for the courts to deem that letter and the consequences that flow from it unfair under the authorities to which I have been referred would be to require the courts to micromanage and indeed usurp the position of the Local Authority, who has a very difficult job to do, and to in effect put them in a position where almost any letter or correspondence would be susceptible to re-writing or review. That is not the system that we have. It is a review by the courts looking carefully at what is a serious decision for the sort of unfairness that strikes at that system and renders what has been decided unjust or unfair. That is not this case. All the information was available, both from her prior dealings and from the terminology of the letters she received for her to know perfectly well what she was rejecting. Indeed to be fair to the Appellant, when one reads the language (I do not criticise it in any way) of her letter, it is perfectly clear that this is a woman who has reached the end of her tether and is determined only to receive permanent housing, whatever is offered in the temporary field by the Respondents."

19. The judge dealt rather more shortly with the question of "legitimate expectation". He questioned whether his jurisdiction extended to questions of legitimate expectation, but assuming that it did, he said this (at paragraph 29 of the judgment),

"I would have no hesitation in concluding that – although it was very much the appellant's wish (even, in her own mind, expectation) that she receive permanent accommodation – it could not have been a legitimate expectation in the circumstances of the history I have detailed and the way she was dissuaded in particular by the ruling of the adjudicator in 2009. It was, as one would expect, her very real hope she would receive permanent accommodation, but it could not begin to scale the heights of a legitimate expectation."

(D) The Appeal to this Court

20. It appears that no formal grounds of appeal were provided with the original Appellant's Notice to this court. On the permission to appeal applications it appears that the learned Lord Justice and Lady Justice (respectively) who dealt with those applications must have worked upon the basis of the grounds presented to the County Court, or possibly upon a single ground of appeal which appears to have been settled later by counsel who appeared below. The single ground was in these terms:

"The judge was wrong hold (sic) that fairness was satisfied by Lewisham not correcting the appellant's genuine if mistaken understanding of her entitlement to a final offer of accommodation until after she had refused an offer of temporary accommodation and Lewisham had discharged its duty to her under s.193 of the Housing Act 1996."

21. After initial refusal of permission on the papers, the Appellant appeared in person before Arden LJ, who granted permission. Thereafter, on 24 September and 6 November 2012, amended grounds of appeal were settled by Miss Bretherton who appeared for the Appellant before us. The proposed amended grounds (in their final form) are as follows:

"Original Ground

3. The Learned Judge was wrong to hold that fairness was satisfied by Lewisham not correcting the appellant's genuine but mistaken understanding of her entitlement to a final offer of accommodation until after she had refused an offer of temporary accommodation and Lewisham had discharged its duty to her under s193 Housing Act 1996.

Ground 2

4. The Learned Judge erred in law in holding that the Appellant did not have a legitimate expectation that she would be provided with permanent accommodation by the Respondent and or that this legitimate expectation made the review decision unlawful.

Ground 3

5. The Learned Judge erred in law in concluding that the review was conducted fairly. There was a breach of Regulation 8 of the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 SI 1999/71 which rendered the review process unfair and unlawful. The Learned Judge should have varied or quashed the review decision."

22. The Respondent opposed the application to amend the grounds, stating its reasons in a letter of 7 November 2012. On 8 February 2013 Rix LJ referred the amendment application to the court hearing the appeal. The application was accordingly before us. At the beginning of the hearing, with the agreement of the parties, we treated the application, amendment and permission to appeal applications, and the appeal itself as a "rolled up" hearing and indicated that we would give our decision on all points in our judgments.

(E) The Arguments and Conclusions on them

23. Miss Bretherton argued the points in the following order: 1. Legitimate Expectation; 2. Breach of Regulation 8 of the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999/71; and 3. Fairness. I will adopt the same order

Legitimate Expectation

24. Miss Bretherton's argument was that, in truth, the Appellant did not have a "mistaken understanding of her entitlement to a final offer of accommodation". She argued that, on the basis of the correspondence and the Respondent's housing allocation policy at the relevant time, the Appellant was correct as to her true entitlement: the Appellant correctly thought that she was entitled to an offer of permanent accommodation (meeting her needs as recognised in the Respondent's letter of 21 January 2010 – see above). Miss Bretherton submitted that neither the reviewing officer nor the learned judge had taken into account the Respondent's relevant policy document which, she submitted, conferred the entitlement. She recognised fairly that the judge could not be blamed for failing to take the policies into account as no point had been taken on them at the hearing of the appeal before him.
25. Miss Bretherton's argument can be shortly expanded by reference to the facts summarised above and the allocation policy document upon which she relies. The point is that the housing Allocation Scheme (for permanent accommodation), to which reference has already been made, stated in paragraph 3.4 as follows:

"3.4 Offer Guarantees

Any council property you are offered must:

have enough bedrooms for your permanent household (see Section 3.1)

be ready to move into from the date of tenancy (see Section 3.7)

Where appropriate, the offer must take into account:

any recommendations by the Council's Medical Advisor (see Section)

any recommendations on disabilities by the Occupational Therapy Team(see Section 4.2)

If the local housing office accepts that any of these guarantees is not met, the offer will be withdrawn and another one made when a suitable property becomes available.

If you are being rehoused through the Housing Options Centre and you are made an offer within the one offer policy (see Section 3.3), this will take into account as far as possible, requests about the location and property type you would prefer to be offered, although no guarantees can be made."

The argument then is that after the Respondent had made its first offer of permanent accommodation, i.e. in December 2006, and its subsequent withdrawal, the Respondent's policy (paragraph 3.4) "guaranteed" the making of another offer, and it was contrary to the Appellant's legitimate expectation for it to make any offer or offers of temporary accommodation thereafter. Alternatively, if that is not correct, it was contrary to policy and thus contrary to legitimate expectation, to offer temporary accommodation in June 2011, after the long history of the case and the offers of unsuitable permanent accommodation in earlier years.

26. Miss Bretherton's argument was founded principally on the judgment of this court, delivered by Schiemann LJ in R (Bibi) v Newham LBC [2001] EWCA Civ 607; [2002] 1 WLR 237. The principles, for present purposes, can be conveniently taken from the summary in the headnote, as follows:

"….where it was alleged that a public authority had by practice or promise created a legitimate expectation that a person would be granted some substantive or procedural benefit the court should consider to what the authority had in fact committed itself, whether the authority had acted or proposed to act unlawfully in relation to that commitment and, if so, whether to take the substantive decision itself or to remit the matter for the authority to decide afresh according to law; that, in considering whether an authority had acted unlawfully in relation to a commitment which it had made, it had to be objectively determined whether its conduct had amounted to an abuse of power; that it was not as a matter of law necessary to show that the applicant had relied on the expectation to his detriment, although both reliance and detriment were relevant considerations in determining whether it would be unfair to allow the authority not to honour such an expectation; that it was an abuse of power for an authority to adopt a course of action at variance with a promise, which had given rise to a legitimate expectation that it would be honoured, without considering the fact that it was in breach of that promise;..."

27. In my judgment, the Appellant falls at the first hurdle of this test. If one asks what it is to which the authority had committed itself, it is clear to me that (at best) the authority had said, in its allocation scheme, that if the property offered as permanent accommodation did not meet any of an applicant's accepted requirements, "…the offer will be withdrawn and another one made when a suitable property becomes available". It said no more than that.
28. This was a statement in a statutory allocation scheme for permanent accommodation, compiled pursuant to the Respondent's statutory duty under Part VI of the 1996 Act. There is no evidence that the Respondent had failed to comply with that policy. It had made offers of permanent accommodation and had withdrawn them when they proved to be unsuitable. Those offers were, sequentially, Reginald Road, Forster House and Callaghan Close. The making of those offers did nothing to impair or remove the Respondent's entitlement to meet its duties under the separate provisions of Part VII of the Act, dealing with homelessness, by offering different temporary properties from time to time, as circumstances dictated. There was nothing in the allocation scheme to suggest that once any single offer of permanent accommodation had been made no other offers of temporary housing would or could be made.
29. Moreover, I see nothing on the facts of this case that would suggest that the Respondent's position under Part VII of the Act had been restricted by the events in this particular case. As Mr Grundy pointed out, it is clear from the Appellant's own letter to the Respondent of 26 April 2009, which was considered by the Adjudicator, she had been told by the housing department that "under temporary accommodation [she] could be accommodated anywhere in the borough…". In the same letter, she wrote that she had received two separate offers of alternative temporary accommodation in the Catford area, which she had rejected.
30. For my part, I accept Mr Grundy's submission that at no stage after 2009 did the Respondent, by representation to the Appellant or by way of policy statement or otherwise, give any proper expectation to the Appellant, either that a permanent dwelling would be offered within any set timeframe, or that it was giving up the right to offer alternative temporary accommodation in discharge of its obligation to the Appellant as an otherwise homeless person under Part VII of the Act.
31. It seems, as Mr Grundy submitted, that the Appellant may have begun at some stage to harbour the fixed view that the Respondent's obligation was to offer, and that her right was to receive in short order, permanent accommodation in Lee Green Ward, with the requisite physical characteristics, replicating the standard of her former home from which she had been made homeless in 2004, and moreover that she would not be moved from her current accommodation until that permanent accommodation became available. In my view, however, if she did harbour that view, it was not caused or encouraged by the Respondent.
32. I reject, therefore, Miss Bretherton's submission that, far from being mistaken as to her proper entitlement in June 2011, the Appellant was correct about it. She may have misunderstood her entitlement but there has been no breach of any legitimate expectation of the Appellant's part in the actions taken in this case by the Respondent.

Regulation 8

33. Here Miss Bretherton submits that there was a breach of this Regulation, as a result of which the judge below erred in concluding that the review was conducted fairly (ground 3 in the proposed Amended Grounds). Supplementing the proposed ground of appeal on this point, Miss Bretherton submitted in paragraphs 45 and 46 of her skeleton argument as follows:

"45. The Appellant did not receive the "minded to" decision and, in light of the long history of correspondence with the Respondent it is quite clear that she would have made representations had she been given the opportunity to do so. In any event the "minded to" letter did not consider the question of legitimate expectation nor did it advise the Appellant of the probability that the accommodation would become permanent. It did not even advise the Appellant that she had the right to make oral or written representations or both.

46. The Appellant had been insisting for many years that she was entitled to "one offer only" of permanent accommodation. The letter of 14 June 2011 was in a standard form with an identical warning to that given to the Appellant in 2004 namely that it would be a considerable time before she obtained permanent housing. As such it was extremely provocative and, indeed, misleading given that the review officer acknowledged that the accommodation would probably have become permanent. The Appellant was deprived of the essential safeguards conferred by Regulation 8, and, for this additional reason the decision should be quashed."

34. Regulation 8(1) requires a reviewer to consider representations made by the applicant for housing or his representative. Regulation 8(2) provides as follows:

"(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."

35. I accept for present purposes, as Miss Bretherton submitted, that if the obligation under the regulation arises, then there is no discretion in the reviewer to dispense with the notification simply because he or she considers that representations will make no difference: see Mitu v Camden LBC [2011] EWCA Civ 1249, paragraph 27, per Lewison LJ and Lambeth LBC v Johnston [2008] EWCA Civ 690, paragraphs 51 and 53, per Rimer LJ. However, it will be noted that a pre-condition of the obligation to notify under that regulation is that the reviewer considers that there is a deficiency or irregularity in the original decision (in this case the decision to offer the Flat as temporary accommodation). In my judgement, there is no evidence to suggest that the reviewer did consider that there was such a deficiency or irregularity. Nor, looked at objectively, was there any such deficiency or irregularity. Accordingly, the regulation 8(2) obligation never arose. In any event, the letter of 8 August 2011, which the Appellant accepts that she received, gave her every opportunity to make suitable representations to the reviewing officer, an offer which she declined to take up.
36. Miss Bretherton submitted that the offer letter in this case contained no reasoning as to why the accommodation offered was suitable and gave no indication of the Respondent's thinking: regulation 8(2) was, therefore, engaged. However, as my Lord, Lord Justice Lloyd Jones suggested in argument, this would mean that every offer of temporary accommodation would require to be accompanied by a regulation 8(2) letter. That cannot be right. Moreover, even at the end of Miss Bretherton's submissions, it was not clear what the precise breach of the regulation was said to be.

Fairness

37. The short additional point under this heading arises out of the reviewing officer's decision letter of 15 August 2011. It will be recalled that this letter contained the sentence,

"Had you taken up the offer [of the Flat] there was every possibility that it would have been offered to you as a permanent address shortly afterward due to it meeting your requirements via the temporary to permanent program."

It is argued that fairness required the Respondent to notify the Appellant of this possibility at the time that the offer of the Flat as temporary accommodation was made. Alternatively, it is submitted that the failure to do so was also a deficiency in the offer letter, triggering the provisions of regulation 8(2).

38. I do not accept that argument. It may have been a kindness to inform the Appellant, if it had been in the Respondent's mind at the time, that the Flat might in due course become a permanent home for her. However, I see no obligation in the Act that requires such a step to be taken when an offer of temporary accommodation is made. Nor do I consider that the failure to mention this hypothetical possibility in the offer letter rendered the process unfair in the legal sense. The offer of the Flat as temporary accommodation made the offer clearly and it stated the consequences of refusing the offer. Even though a review was specifically not requested, the Appellant's objection triggered a review of the decision by the Respondent's review department and her representations were invited. It cannot be said that the decision, ultimately made, that the accommodation was suitable for the Appellant's needs, was wrong. In those circumstances, I do not consider that the Respondent acted in a manner that was unfair so as to render either the original decision or the review decision incorrect in law.

(F) Conclusions

39. In the circumstances, I have considered above all the grounds of appeal as finally formulated on the Appellant's behalf. I would dismiss the appeal on all those grounds. This may render unnecessary any decision upon the application to amend the grounds of appeal. However, for my part, I would have allowed the application to add the new ground 2 (legitimate expectation) which was essentially an issue argued in the county court. However, I would have refused the application to add ground 3 (regulation 8). This was not argued below and, even by the end of the appeal hearing, it did not seem to me that Miss Bretherton was able to articulate with clarity what the supposed breach of that regulation was, sufficiently to warrant the grant of permission to amend. It will be noted that the proposed ground of appeal on this point does not on its face identify the breach alleged.
40. As indicated, I would dismiss the appeal.

Lord Justice Lloyd Jones:

41. I agree.

Lord Justice Kitchin

42. I agree.