England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE COUNTY COURT AT CENTRAL LONDON
Mr Recorder Aldous QC
D40CL261
ON APPEAL FROM THE COUNTY COURT AT CENTRAL LONDON
HH Judge Luba QC
D40CL191
ON APPEAL FROM THE COUNTY COURT AT OXFORD
HH Judge Vincent
D00OX522

		Royal Courts of Justice Strand, London, WC2A 2LL
		12 July 2018

Lord Justice Patten :

1. These appeals raise a common issue concerning what is required of local housing authorities in order to comply with regulation 8(2) of the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999/71 ("the Review Regulations") which applies on a review under s.202 of the Housing Act 1996 ("HA 1996") when a reviewing officer sends out a minded-to letter indicating an intention to make a decision contrary to the interests of the applicant for homelessness assistance. In short, the question is whether the letter must specify in terms that the applicant (or a representative) may make representations to the reviewer orally at a face-to-face meeting.
2. If there is such a requirement then there was a breach of the Review Regulations in all three cases under appeal. In Kamara, the Respondent Council decided that the Appellant was not in priority need although she undoubtedly has various health issues. The Respondent (on the basis of the opinion of their medical advisor) concluded that her health problems did not render the Appellant significantly more vulnerable than an ordinary person faced with homelessness. This is the test applicable under s.189(1) HA 1996 as interpreted and explained by the Supreme Court in Hotak v Southwark LBC [2015] UKSC 30. Permission was given by Asplin LJ for the Appellant to challenge the application of this test by the reviewing officer but that ground of appeal is no longer pursued. The Appellant's solicitors made written representations in relation to the original homelessness decision and, more particularly, on the review under s.202 which centred on the effect of the Appellant's health problems. On 21 April 2017 the reviewing officer sent to the Appellant's solicitors a letter indicating that the officer was minded to uphold the Council's decision that the Appellant was not in priority need. The letter contained a detailed analysis and explanation of why the officer had come to this conclusion. It concluded by saying:

"I am minded to uphold the decision that Ms Kamara and Haroun are not in priority need. Prior to making the s.203 decision, Ms Kamara or someone acting on her behalf may make further oral and/or written representations regarding the issues raised in this minded to letter. "

3. It is common ground that the reference to s.203 should be read as one to s.202. The Appellant's solicitors then wrote to the Council in response setting out their arguments as to why the Council had in their view misapplied the guidance in Hotak and why the Appellant did have a priority need. In a letter of 30 June 2017 the reviewing officer made the s.202 decision upholding the Council's earlier decision that Ms Kamara was not in priority need.
4. In Leach the Respondent Council decided that the Appellant was intentionally homeless and was therefore owed only the lesser housing duty under s.190. Her solicitors requested a review and on 5 April 2017 were sent a letter indicating that the reviewer was minded to uphold the Council's decision. As in Kamara, the minded-to letter invited the Appellant's solicitors to make any further representations they wished "either orally or in writing or both" before the review was concluded but did not in terms refer to the right to make oral representations at a face-to-face meeting. The solicitors made further representations in writing in a letter dated 27 April 2017 but did not ask to make representations orally. On 10 May 2017 the reviewer wrote setting out her reasons for upholding the Council's decision that the Appellant was intentionally homeless.
5. In Piper the Council again decided that the Appellant was intentionally homeless. Her solicitors requested a review of the decision. An initial s.202 review took place but the decision was withdrawn and a further review took place. A minded-to letter was sent to the Appellant's solicitors on 16 June 2017 indicating that although the reviewer considered that there was a deficiency in the Council's original decision he was minded to conclude that the Appellant was intentionally homeless and proposed to uphold the Council's decision. As in the other cases, the reviewer referred to the Appellant's right to make further representations "in writing or orally or both" but not to the right to make oral representations at a face-to-face meeting.
6. The Appellant's solicitors did not ask to make representations orally but did provide written representations by letter dated 30 June 2017. On 14 July 2017 the reviewer informed them that he had decided to uphold the Council's original decision.
7. The right to seek a review of a decision of a local housing authority as to the applicant's eligibility for homelessness assistance is part of the statutory code for dealing with such applications contained in Part VII of the HA 1996. The statute does not prescribe the form of review but gives the Secretary of State power under s.203 to make regulations governing the procedure to be followed. So far as material, s.203 provides:

"(1) The Secretary of State may make provision by regulations as to the procedure to be followed in connection with a review under section 202.

Nothing in the following provisions affects the generality of this power.

(2) Provision may be made by regulations—

(a) requiring the decision on review to be made by a person of appropriate seniority who was not involved in the original decision, and

(b) as to the circumstances in which the applicant is entitled to an oral hearing, and whether and by whom he may be represented at such a hearing.

(3) The authority, or as the case may be either of the authorities, concerned shall notify the applicant of the decision on the review.

(4) If the decision is—

(a) to confirm the original decision on any issue against the interests of the applicant, or

(b) to confirm a previous decision—

(i) to notify another authority under section 198 (referral of cases), or

(ii) that the conditions are met for the referral of his case,

they shall also notify him of the reasons for the decision."

8. The Review Regulations made in 1999 are stated in the Preamble to have been made under ss.165(1), (2) and (5) and 203(1), (2) and (7) HA 1996. Section 165 (repealed and replaced by the Homelessness Act 2002) was concerned only with reviews of decisions by a local housing authority to remove or not to include a person on their housing register and is irrelevant for present purposes. But the Review Regulations made under the s.203 powers specify the procedure for a review in all the cases under appeal. Regulation 8(2) states:

"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."

9. The 1999 Review Regulations have been replaced with effect from 3 April 2018 by the Homelessness (Review Procedure etc) Regulations 2018 (2018 No. 223) but the provisions of regulation 8 appear in regulation 7 of the new regulations without any material amendments.
10. The situation dealt with by regulation 8 is both limited and specific. The obligation of the reviewer to notify the applicant of the provisional review decision arises only when the proposed outcome is unfavourable to the applicant but at the same time critical of the earlier decision under review or the way in which it was reached. If the reviewer concludes adversely to the applicant that the previous decision should be upheld for essentially the same reasons then there is no obligation to provide the applicant or his or her representatives with an opportunity to make further representations. The regulation is therefore focussed on a situation in which the review decision is likely to produce the same outcome but possibly for different reasons. In such circumstances the applicant is given the opportunity to address any new points which the reviewer may rely upon.
11. One might have thought that this opportunity to re-state (with possibly a different focus) the applicant's case does not demand in terms of procedural fairness any materially different procedure from that provided by the Review Regulations in relation to the original review application. But this is not the case. Under regulation 6 the right of the Appellants in the cases under appeal to make representations to the reviewer is limited to a right to make written representations: see regulation 6(2)(a). Regulation 8(2) is therefore a significant addition.
12. In all three cases the Respondent Council framed the relevant part of its minded-to letter in terms of the language of regulation 8(2)(b). But the Appellants say that a failure to include in those letters (or perhaps otherwise) some express reference to the Appellants' right to make oral representations at a face-to-face meeting is a breach of regulation 8(2)(b) which justifies setting aside the review decision reached after consideration of the written representations which were provided by the Appellants' solicitors in each case. Mr Drabble QC accepts, as he must do, that the grant of such relief is ultimately discretionary but the factual context in which that falls to be exercised in the present appeals, assuming that the allegation of breach is made out, is a limited one. The subsequent challenge to the review decision was carried out through the medium of appeals to the County Court under s.204 HA 1996. This is the prescribed method of review but it is, of course, limited to the identification of a point of law arising from the review decision or the original decision. The courts below were not asked to nor did they conduct any factual investigation of whether the Appellants' solicitors were aware of their right to make oral representations at a face-to-face meeting or whether they in fact decided not to exercise any such rights. All that we do know is that none of the firms involved requested an opportunity to have a face-to-face meeting.
13. The Appellants' case has been conducted throughout (including in this Court) simply as an exercise in the construction of regulation 8(2) read in the light of the decision of this Court in Makisi v Birmingham City Council [2011] EWCA Civ 355. In that case the appellants had received minded-to letters in much the same form as in the present appeals. But each appellant requested a face-to-face meeting which the local housing authority refused. It indicated that it was only willing to receive oral representations by telephone. The Court of Appeal held that the appellants were entitled to insist upon and be granted a face-to-face meeting.
14. The appellants in Makisi were not therefore misled by the terms of the minded-to letters which they received and the issue for the County Court and then on appeal for this Court was simply about the content of the right to make oral representations provided for under regulation 8(2) and, in particular, whether the choice between different methods of making oral representations lay with the Council or the Appellants. But Mr Drabble relies upon what was decided in Makisi about the procedural content of the obligations imposed by regulation 8(2)(b) to support the Appellants' argument that the information contained in the minded-to letter should extend to an explicit statement that oral representations may (at the applicant's discretion) be made at a face-to-face meeting. Although this argument has been formulated in the Appellants' written submissions in part by reference to Articles 6 and 8 of the European Convention on Human Rights, Mr Drabble accepted during argument that neither was relied on. A review is not a judicial process and Article 8 does not give an applicant the right to a new home. His case really depends upon the proper construction of regulation 8(2) having regard to the purpose of the Review Regulations. It is not suggested that the rights conferred on the Appellants by s.202 HA 1996 and by the Review Regulations as construed in Makisi do not satisfactorily respect or implement any common law or other requirement of procedural fairness. We are therefore faced with the relatively narrow question of whether the effective notification of those rights in accordance with regulation 8(2) requires the local housing authority to do any more than to state that the applicant "may make representations to the reviewer orally or in writing or both orally or in writing" which is what the Respondents literally did in each of the three cases under appeal.
15. In Makisi the leading judgment was given by Etherton LJ and a number of passages are relied on by the Appellants as defining what they refer to as their Makisi rights. The principal issue for the Court, as I explained earlier, was whether regulation 8(2) conferred on the appellants the right to demand an oral hearing. Etherton LJ (at [62]) referred to s.203(2)(b) as confirming that Parliament contemplated the Secretary of State being able to include a right to an oral hearing in any regulations made governing the procedure under a s.202 review. He went on:

"[63] …..A right to make oral representations is most naturally understood to be a right exercisable at a face to face meeting, even if it is not confined to such a meeting. Regulation 8(2) of the 1996 Review Procedures Regulations came into force on 20 January 1997. The combination of the close proximity of the commencement of regulation 8(2)(b) of the 1996 Review Procedures Regulations and of section 203(2)(b) of the Act, the preamble to those Regulations, and the more natural understanding of the way a right to make oral representations would normally be exercised, strongly indicates that regulation 8(2)(b) of the 1996 Review Procedures Regulations was made pursuant to section 203(2)(b) of the Act.

[63] There is no reason to think that regulation 8(2)(b) of the 1999 Review Procedures Regulations, the preamble to which also referred to section 203(2) of the Act, was in that respect any different to regulation 8(2)(b) of the 1996 Review Procedures Regulations. It differed from the earlier version only insofar it conferred a right to make written as well as oral representations.

[64] The conclusion that regulation 8(2)(b) of the 1996 Review Procedures Regulations and regulation 8(2)(b) of the 1999 Review Procedures Regulations were made pursuant to section 203(2)(b) of the Act is also strongly supported by the Code, to which housing authorities are required by section 182 of the Act to have regard in exercise of their functions relating to homelessness. In particular, it is significant that the heading to para 19.12 of the Code, which provides a commentary on, among other things, regulation 8(2)(b) of the 1999 Review Procedures Regulations, is "Oral hearings". I agree, therefore, with Carnwath LJ's instinctive reaction in Hall v Wandsworth London Borough Council at 26 that the statutory source of regulation 8(2)(b) of the 1999 Review Procedures Regulations was section 203(2)(b) of the Act.

[65] If, as I conclude, regulation 8(2)(b) of the 1999 Procedure Regulations was made pursuant to section 203(2)(b) of the Act, that would indicate that the Secretary of State intended to confer a right on the Applicant to demand an oral hearing. There are other factors which support such an entitlement. I have referred earlier in this judgment to the views expressed by Rimer LJ in Lambeth LBC v Johnston at 52 and 53 about the important advantage to the Applicant of persuading the review officer by oral advocacy. Rimer LJ described it at 52 as conferring "a potentially invaluable procedural right in all cases". I agree. The terms in which Rimer LJ described the right indicate that he envisaged that the right would be exercised at a face to face meeting with the review officer. I also agree with the Appellants that it would be odd if the Secretary of State intended, without any express provision to that effect, to confer on the housing authority the power to decide whether or not that invaluable right to persuade by oral advocacy at such a meeting should or should not be enjoyed in any particular case."

16. The issue to which the reasoning in this passage is directed is the difference in wording between s.203(2)(b) which refers in terms to the applicant being entitled to "an oral hearing" and regulation 8(2)(b) which simply refers to the applicant being able to make representations "orally". So far as that difference could be used to support an argument that regulation 8(2)(b) conferred more restricted rights on the applicant in terms of the methods available to him for making oral representations, the point, as Mr Drabble submitted, has now been resolved in the applicant's favour by Makisi. But it is, I think, important to note that Etherton LJ based his construction of regulation 8(2)(b) on the most natural meaning of the right to make "oral representations" being a right to make such representations at a face-to-face meeting rather than, for example, by telephone.
17. The other issue considered by the Court of Appeal in Makisi was whether regulation 8(2) conferred on the local housing authority the discretion whether or not to hold an oral hearing. That is not relevant to these appeals. But in dealing with that point Etherton LJ said at [68]:

"By contrast, as both the Appellants and the Respondent emphasised, and the reported cases show, regulation 8(2) of the 1999 Review Procedures Regulations and its predecessor Regulations are concerned with the review of an administrative decision about the provision of new accommodation, including its suitability. It is common ground that the review process under regulation 8 does not engage art 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. It is entirely understandable why, therefore, regulation 8(2) does not refer to a single specific way in which oral representations may be made, namely at a hearing, but leaves at large the way in which the Applicant may choose to make oral representations."

18. One of the points made by the Respondents is that if, in order to comply with regulation 8(2)(b), the local housing authority must specify in terms each of the possible ways in which the right to make representations may be exercised, the minded-to letter would have to go much further than merely referring to the right to demand a face-to-face meeting. By contrast, as Etherton LJ observed, the regulation in fact leaves that question at large and it rests on the applicant to decide how to make the representations, whether oral or in writing.
19. As mentioned earlier, each of the applicants in Makisi requested an oral hearing following the notification of their right to make oral representations. The Appellants emphasise the importance and advantage of being able to make oral submissions at a face-to-face meeting which is recognised by Etherton LJ in the passage quoted where he endorsed what Rimer LJ had said in Lambeth LBC v Johnston [2009] HLR 10. Needless to say, I recognise and accept that.
20. Put at its simplest, the Appellants' argument is that, in order for an applicant to be given effective notice of his or her right to request an oral hearing, the minded-to letter must do more than merely notify the applicant of the right to make oral representations. Although this is the wording used by regulation 8(2)(b), the Court of Appeal in Makisi has confirmed that it is to be read as including a right for the applicant to demand an oral hearing. Consistently with this, the minded-to letter should spell that out rather than leave it to the applicant or his or her representatives to interpret it in that way.
21. Mr Drabble contends that regulation 8(2)(b) can be read as imposing this wider obligation in order to achieve conformity with the principle of legality and does not, as I have mentioned, seek to rely on Articles 6 and 8 to achieve a conforming construction. The principle of legality is said to be encapsulated in what Stanley Burnton J (as he then was) said in his judgment in Salih v Secretary of State for the Home Department [2003] EWHC 2273 (Admin) when considering a challenge by asylum seekers to the practice or policy of the Home Secretary not to inform asylum seekers of the availability of or the criteria used to determine eligibility for what is referred to as the hard support scheme. At [45] he said:

"It is a fundamental requisite of the rule of law that the law should be made known. The individual must be able to know of his legal rights and obligations. Constitutional convention requires the publication of statutes. The practice in relation to their publication is described in the informative judgment of Lord Phillips MR in R (on the application of L) v Secretary of State for the Home Department [2003] EWCA Civ 25, [2003] 1 WLR 1230, [2003] 1 All ER 1062, at [18] to [23]. Typically, and I suspect for historical reasons, there is no domestic legal requirement that statutes must be published, and they take effect on the giving of the Royal Assent, irrespective of publication. The jurisprudence of the European Court of Human Rights is different: the Court declines to recognise domestic legislation that is not adequately accessible as a justification for interference with Convention rights under, for example, art 5: see R (on the application of L) v Secretary of State for the Home Department at [17]."

22. This statement was approved by the Supreme Court in Lumba v Secretary of State for the Home Department [2011] UKSC 12 at [36] (per Lord Dyson JSC), another case concerned with the application of an unpublished policy.
23. Finally, in AXA General Insurance Ltd and v HM Advocate [2011] UKSC 46 the Supreme Court had to consider a challenge to Scottish legislation designed to reverse the effect of recent case law in relation to the ability of claimants to recover damages for having developed plural plaques due to their negligent exposure to asbestos. One of the issues considered was whether the legislation (which was framed in very wide and general terms) could be said to have overridden or breached any fundamental rights on the part of the insurance companies. At [152] Lord Reed stated the principle to be applied in these terms:

"The principle of legality means not only that Parliament cannot itself override fundamental rights or the rule of law by general or ambiguous words, but also that it cannot confer on another body, by general or ambiguous words, the power to do so. As Lord Browne-Wilkinson stated in R v Secretary of State for the Home Department, ex parte Pierson [1998] AC 539 at p 575, [1997] 3 All ER 577, [1997] 3 WLR 492:

"A power conferred by Parliament in general terms is not to be taken to authorise the doing of acts by the donee of the power which adversely affect . . . the basic principles on which the law of the United Kingdom is based unless the statute conferring the power makes it clear that such was the intention of Parliament."

Lord Steyn said in the same case, at p 591 "Unless there is the clearest provision to the contrary, Parliament must be presumed not to legislate contrary to the rule of law."

24. In my view we are a long way from the type of case in which these principles are engaged. The rights which the appellants rely upon and seek to enforce do not depend upon some fundamental principle of law with an origin and existence independent of HA 1996 and the Review Regulations. The right of the appellants to an oral hearing is entirely the creation of the statute (in particular s.202) and regulation 8(2)(b). No reliance is placed on Convention rights as implemented by the Human Rights Act 1998 nor is it contended that the scheme of the legislation and regulations fails to satisfy the common law requirement for procedural fairness.
25. For the same reason there is also no equivalent issue here to that in Salih in terms of the relevant law being publicly available. The rights granted to the Appellants are set out in regulation 8(2)(b) and (so far as material) were stated verbatim in the minded-to letters which their solicitors received. Given that the Respondents in each case have notified the Appellants of their right to make representations to the reviewer orally or in writing or both as provided in the regulation, the only question is whether the obligation to "notify" an applicant of these things means any more than that.
26. In my view it does not. Although, as is clear from Makisi, the right to make oral representations may be exercised at a face-to-face meeting, that is evident from the language of regulation 8(2)(b) itself. Like Etherton LJ, I consider that the most obvious meaning of that phrase is one which connotes some kind of meeting or hearing at which the applicant or his representative can make their points in response to the minded-to letter. It is not necessary to expand the scope of the notification in order for an applicant or his advisors to understand that.
27. My other reason for rejecting the Appellants' construction of regulation 8(2)(b) is that it would be productive of uncertainty in relation to what is intended to be a straightforward administrative procedure carried out by the staff of local housing authorities. The courts have made it clear on a number of occasions that homelessness review decisions should not be scrutinised and interpreted as if they were the judgments of a court or the opinion of a lawyer: see e.g. Holmes-Moorhouse v Richmond-upon-Thames London Borough Council [2009] UKHL 7. The same context governs the operation of the Review Regulations. They are made by the Secretary of State under s.203 in order to set out the procedure to be followed by local housing authorities on a s.202 review. Regulation 8(2)(b) sets out what the reviewer must notify the applicant of. It does not in terms indicate that any further detail is required. If the regulation is to be construed so as to require the reviewer to set out the various ways in which oral representations could be made then it would create the obvious danger (already alluded to) that the list provided could be criticised as incomplete. The express inclusion of one method of making oral representations might be regarded as suggesting that other methods are excluded. By contrast, if the regulation does no more than to require the reviewer to set out the provisions of regulation 8(2)(b) verbatim, it provides a simple, certain instruction which, if followed, informs and allows the applicant to elect to make his representations in the way he finds most convenient. There is nothing obscure or unfair in that process.
28. I am not therefore persuaded that it is either necessary or correct to interpret regulation 8(2)(b) in a way which requires the reviewer to spell out the effect of the decision in Makisi. That would require words to be read into regulation 8(2)(b). There is certainly nothing in Makisi itself which is supportive of that argument and the administrative context in my view favours a literal construction of the regulation. This is supported by the 2006 Code of Guidance published by the Secretary of State under s.182 HA 1996 which in [19.12] states that under regulation 8 the reviewer should notify the applicant:

"that the applicant, or someone acting on his or her behalf, may, within a reasonable period, make oral representations, further written representations, or both oral and written representations."

29. For these reasons I would dismiss these appeals.

Lord Justice David Richards :

30. I agree.
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