English and Welsh Courts - Miscellaneous

Case no D20BM 001, Appeal no  BM70010A

IN THE COUNTY COURT sitting at BIRMINGHAM

Date: 14 June 2017

Before:

His Honour Judge David Grant

 

BETWEEN:

 

MUSLIMA BEGUM

Appellant

-v-

 

BIRMINGHAM CITY COUNCIL

Respondent

 

Mr Zia Nabi, instructed by The Community Law Partnership, 191 Corporation Street, Birmingham B4 6RP, appeared for the appellant

 

Miss Sarah McKeown, instructed by Birmingham City Council, Legal and Democratic Services, Birmingham B2 2UQ, appeared for the respondent

 

Draft made available to the parties on            12.05.17

Judgement handed down on                          14.06.17

 

JUDGEMENT on APPEAL

Topics: appeal under section 204 of the Housing Act 1996 – review of decision made under section 202 of the Housing Act - _{circumstances when a further “minded to” letter is required}

 

The appeal

1.         This is an appeal brought under the provisions of section 204 of the Housing Act 1996 against the review decision of Birmingham City Council ("BCC") made on 16 December 2016, when BCC confirmed its earlier decision made on 31 October 2016 that, in offering the appellant accommodation at 20 Heanor Croft, Birmingham B6 78X, it had discharged its duty to secure accommodation for the appellant, and that as a result “no further offers of accommodation will be made” (pages 109-110)

 

2.         The notice of appeal is dated 18 January 2017. It was supported by grounds of appeal which identified 5 grounds. On 25 January 2017 HHJ McKenna gave directions in the appeal. Although by paragraph 3 of that order of the appellant was given permission "to amend and perfect the appellant's notice (with perfected grounds of appeal)" the appellant was also directed to file and serve an amended appellant's notice by 3 March 2017. In the event, the appellant did not file an amended notice, but no point is taken about that.

 

3.         Paragraph 3 of that order also directed the appellant to file and serve any witness statement relied upon in support of the appellant’s case in the appeal. The appellant’s witness statement is dated 3 March 2017 (pages 54 – 70). In the course of the appeal, Miss McKeown submitted on behalf of the respondent that a number of passages of that witness statement were not admissible in evidence, essentially because those passages related to matters not known to either party (and in particular BCC) as at the date of BCC’s review decision. Having heard submissions from both Miss McKeown and Mr Nabi, I gave a ruling on the admissibility of various passages of that witness statement.

 

4.         In similar fashion, paragraph 4 of that order directed the respondent to file and serve any witness statement relied upon in support of the respondent’s case in the appeal. However the respondent did not file and serve any witness statement in the appeal.

 

5.         It is also to be noted that paragraph 5 of that order contained the following guidance:

“This being an appeal, no evidence shall be called at the hearing without the prior permission of the court. NOTE: the parties are reminded that this is an appeal where the jurisdiction of the court is in substance the same as that of the High Court in applications for judicial review."

 

6.         The appellant then filed her skeleton argument dated 2 March 2017 identifying 6 grounds of appeal; the respondent filed its skeleton argument dated 14 March 2017. In the appellant’s skeleton argument, grounds 1 & 2 of the appeal were headed “Breach of regulation 8 (2) of the Review Regulations 1999/unfairness”. The grounds contain the following submissions under that heading:

“53.      The council accepted that it was bound to invoke regulation 8 (2) on review, and sent a “minded to” letter. However, it breached the requirements of regulation 8 (2)  by not putting its provisional reasoning on the asserted entering/leaving problems and associated child safety issues (namely relayed ascent and descent, leaving the children unsupervised) in advance of the review decision.

54.       The council cannot rely on the “minded to” letter that was sent. Given that (a) it accepted that regulation 8 (2) was engaged; and (b ) the “minded to” letter  did not address the asserted entering/leaving problems, it was required to send a further “minded to” letter  to explain why it was still of the view that the premises were suitable and reasonable to accept.”

 

Ground 3 was headed “Failure to take relevant matters into account”; ground 4 was headed “Failure to make adequate inquiry”; ground 5 was headed “Reasons”; and ground 6 was headed “Irrationality”. In many respects grounds 3 to 6 inclusive are, or were treated in the appeal as being, supplementary to the primary grounds, which were those set out in grounds 1 & 2.

 

7.         At the appeal the appellant was represented by Mr Nabi of counsel, and the respondent was represented by Miss McKeown of counsel.

 

The background history

8.         The contents of the appeal bundle, supplemented by the parties’ respective skeleton arguments, indicate that the essential elements of the background history are as follows.

 

9.         By letter dated 12 January 2016 the appellant wrote to BCC[1] (page 124) from an address stated to be 68 Asholme Close, Hodge Hill, Birmingham B36 8TJ explaining that:

“… I have been given until 12 February 2016 to leave the property I am renting from Midland Housing ….

Birmingham City Council is paying the rent for the property to the agent, Midland Housing. The agent is paying the landlord. However, the landlord is not paying the mortgage company, and that is why the property is being reclaimed.”

 

She went on to explain that she was the mother of three young children, and was in urgent need of accommodation, and requested that BCC find her suitable accommodation, giving some details of her circumstances.

 

10.       On 22 January 2016 the appellant completed a Homeless Application Form (pages 85-99). At page 86 she set out details of her children: her elder son Abdul was born on 1 June 2012, then aged 3 years 7 months; her daughter Zaheera was born on 18 May 2014, then aged 1 year 8 months; and her younger son Riyad was born on 28 December 2015, then a small baby not quite one month old. In section 5 of the application form she stated that the address where homelessness occurred was 68 Asholme Close in the district of Bromford. In section 26, she made a ‘Person Statement’, stating that “… the property is due to be repossessed on 12 February 2016”; that she was a single parent with two children under four years of age, with a youngest born prematurely; and that she needed to find suitable alternative accommodation as soon as possible. She concluded:

“I would like to be rehoused in the local area as I am settled there and I have support from family and my son goes to nursery. I also want to start back to work as I am self-employed and have customers in the area.”

 

11.       By letter dated 26 January 2016 (pages 71-74) BCC wrote to the appellant stating that it accepted she was eligible for assistance, was threatened with homelessness, had a priority need, and was not threatened with homelessness intentionally. The senior housing needs officer (“SHNO”), Philomena Cronin, further wrote on page 1 of that letter:

“This decision means that the council has a duty to take reasonable steps to secure accommodation does not cease to be available for occupation or secure suitable accommodation for your occupation.”

 

I construe the somewhat convoluted language of that sentence to mean that BCC accepted it had a duty to secure suitable accommodation for occupation by the appellant. The SHNO’s letter continued:

“Our duty to you will continue until one of the following actions or events brings this duty to an end:

·         …. (as regards immigration status)

·         If you accept or refuse an offer of accommodation from BCC (in accordance with part VI of the Housing Act 1996.

·         BCC’s housing policy is that all homeless applicants accepted under part VII of the Housing Act 1996 will receive one offer of suitable accommodation. This will be your one and final offer, as required by section 193 (7) of the Housing Act 1996[2]

·         …. (as regards temporary accommodation)

·         …. (as regards becoming intentionally homeless)

·         …. (as regards voluntarily ceasing to occupy the accommodation as your only or principal home)

 

12.       On 30 August 2016 the appellant “bid” for 20 Heanor Croft. This is the bid referred to by the appellant in paragraph 5 of her witness statement (page 55). See also paragraph 6 of the respondent’s skeleton argument (page 40). Mr Nabi explained in the course of the hearing that this is a process done online.

 

13.       On 14 September 2016 the appellant sent a long e-mail to BCC headed “Re Been Housed ASAP” (which I construe to mean “Re being re-housed ASAP”) in which she set out in some detail, her background history, her current difficulties in trying to find accommodation, and the sense in BCC providing her with accommodation “…to avoid all the last-minute panic …” which would occur if a warrant for possession of her current accommodation was executed. Towards the bottom of the second page of that e-mail she wrote:

“I have been bidding for houses nearby in the area in a weekly basis and if you look I have been shortlisted four times, which means those offered in front do not accept I will be accepted.

I hope you can consider housing me in this situation and prevent all the difficulty …” 

 

14.       On 6 October 2016 arrangements were made for the appellant to view 20 Heanor Croft. The appellant explains in paragraph 5 of her witness statement that after she had waited there for about 15 minutes, she telephoned BCC, and a little later a housing officer arrived to say that she did not have the keys to the property, with the consequence that the viewing date was rearranged for the following week, namely 13 October 2016.

 

15.       On 13 October 2016 the appellant returned to view 20 Heanor Croft, and by standard form letter of the same day (pages 75- 77, with enclosures at pages 78- 83) BCC made her a “Final offer of accommodation” stating that “you are being offered this property as your one and final offer of accommodation”, albeit the letter did not cite the address of the property. On page 2 under a paragraph headed “What happens if you refuse this offer accommodation?” the text continued:

“If you refuse this offer of accommodation, the council will consider that its duty under section 193 (7) of the Housing Act 1996 has been discharged. No further offers of accommodation will be made. You will be entitled to remain on the housing register, but you will lose the points awarded to you as homeless applicant.”

 

Under a further paragraph headed “Right of review”, the text provided

“You have the right to request a review of the suitability of this offer of accommodation, regardless of whether you accept or refuse the offer. Any review request must be submitted to the Council within 21 days of this letter …”

 

16.       By e-mail sent that day, Thursday 13 October 2016 at 1:08 PM (pages 107-8) and headed “To be put back on system to bid” the appellant wrote:

            “…

My daughter and son are settled in a local school and nursery. It’s been great difficult to settle them both, they are now settled familiar with environment, also family and friends and local neighbours.

I have a self-employed job, I work as a mobile beautician, and have been working here almost 18 months to build up my clientele and business.

I was given a phone call few weeks ago explaining I’ve been offered to view the house. This house is not suitable for me as it is too far from family and friends that support me. This is also too far from my customers the clientele I have builded up for my self-employed business.

I understand I have one homeless offer, at the time when I bidded I was shortlisted as no 4. I think this is unfair, as I was number 4 then you considered me as Number 1 a few weeks later? This was not offered to me as a viewing first on the list to be housed?

I had sent e-mail explaining my current situation during this time to consider housing me near where I live now. I hope you can understand my situation and put me back live onto the system to get started to bid again.

…””

 

17.       It is to be noted that the reasons then advanced by the appellant for refusing this offer of accommodation all related to location, in particular being too far away from her children’s school and/or nursery, from her clientele in connection with her self-employed job as a mobile beautician, and from her establish support network involving family, friends and local neighbours.

.

18.       Ms Sabia Begum (no relation) of BCC’s “Housing Options” construed that e-mail as a review request, and forwarded it to BCC’s “HOUH Reviews” the same day (see the top of page 107).

 

19.       That was the context for BCC’s subsequent letter dated 31 October 2016 headed “Discharge of homeless duty” (pages 109- 110). In the second paragraph of that letter, its author Gail Fenton, senior housing needs officer, wrote:

“You were offered a tenancy of 20 Heanor Croft … and warned of the consequences should you decide to refuse it. I understand that you have now refused this offer of accommodation. Accordingly, I must inform you that the City Council considers that it has discharged its duty to secure accommodation for you, and no further offers of accommodation will be made.

…

Under section 202 of the Housing Act 1996 you have a right to request a review of this decision … within 21 calendar days of the notification of this decision …”

 

In his oral submissions Mr Nabi submitted that this was a letter written essentially in standard form, without any reference to any particular facts or circumstances of the appellant’s application.

 

20.       On 1 December 2016, in the context of BCC’s “Homeless review investigation”, Jenny Carter, the service manager of BCC’s housing operations team had a telephone conversation with the appellant (page 111) in which the appellant stated that:

“I’ve had cultural issues and in-law issues, because I’m a single (Mum) with three kids. I need support with childcare and the school run. I’m a self-employed beautician and my mother in law helps me with cooking and cleaning as well sometimes.”

 

The appellant went on to explain that she had a car; that her mother-in-law lived at 50 Alexandra Way in Saltley; that she was quite close to her Dad, but she did not have his address, though she thought it was “… near to the park in Ward End in the B8 area …”. She gave details of the children’s school, being Hodge Hill Primary School, and nursery, being Rocking Horse Nursery “… right next to the school”.

 

21.       Then on 6 December 2016 Jenny Carter of BCC sent the appellant a “minded to” letter (pages 112- 119). It was accepted by both parties in the course of the hearing that this letter had been incorrectly headed “Statutory homeless review decision”. It became clear in the course of oral submissions that the reason why this letter had been incorrectly headed was that it contained a deal of common text with the subsequent “review of decision letter” dated 16 December 2016, which had the same heading. There was also a mistake in the very first paragraph of the “minded to” letter, which referred to a decision having been made on 25 April 2016: both parties accepted that the reference should have been to a decision having been made on 31 October 2016.

 

22.       In the first paragraph of that letter Jenny Carter wrote (page 112) “I have now completed the request for a review of the decision made on (31 October) 2016 to discharge duty to you by offering you 20 Heanor Croft …”. On internal page 2 she wrote:

“I have looked through your homeless file and accepted there was a deficiency in that the Public Sector duty was not considered. I have therefore decided to give you an opportunity to comment on the contents of this letter, or for you to provide further information if you deem this to be appropriate.

 

I have considered all the evidence including but not limited to:

·         Your homeless application form

·         Your review request received by e-mail on 13 October 2016

·         Telephone conversation with you on 1 December 2016.

 

In your review request, you gave the following reasons why you considered that the decision to be incorrect

·         You placed a bid on the offer address on 30 August 2016, and when you rang up to check on it you were told you were in bid position 4

·         You have family and friend who currently live near to you and provided support for you

·         Your children are settled in school and nursery and are familiar with the environment

·         You are self-employed as a mobile beautician and over 18 months you have built your clientele and business

·         The offer address is too far from family and friends

·         You consider that the bidding process is unfair because you were in bid position 4 then you were considered as bid position

 

Detailled below is my response to the queries that you have raised.”

 

23.       There then followed a deal of standard form text; on internal page 4 (page 115) having referred to the system of bids, Jenny Carter stated that the appellant was:

 “… aware that your position could change and if you were no longer interested in a particular property you had the opportunity during the advertising cycle to withdraw the bid. You allowed a bid to be submitted therefore you indicated to the City Council that you were interested in the offer address.”

 

Jenny Carter then referred to the appellant’s reference to support networks; details about the appellant’s family and their addresses, stating that she did not consider that the travel distance between 20 Heanor Croft and the addresses of the appellant’s family members to be excessive; to details about the position of the children (being settled in school and nursery), stating that she also did not consider that the travel distance between 20 Heanor Croft and the school and/or nursery was excessive; that, as regards the appellant’s business as a self-employed beautician the appellant had control of her own diary, and had use of her own private vehicle, concluding that the appellant was able to organise herself “…to do the things you have described from 20 Heanor Croft if you had accepted it”. Jenny Carter continued on internal page 5 (page 116):

“Taking into account all the evidence available to me I have concluded the following:

You were shortlisted for an offer of accommodation at 20 Heanor Croft. This property was a 3 bedroomed maisonette. I have nothing before me to suggest the property type or the location of the offer address would have been unreasonable for your family to accept.

…

I am not aware of any issue or circumstance that would make the offer address unreasonable for you to accept accordingly I must advise you that I intend to uphold the decision to discharge duty to you by offering you 20 Heanor Croft.”

 

24.       By letter dated 13 December 2016 (pages 120- 122), the appellant replied to Jenny Carter as follows:

“. Thank you for your e-mail and recent telephone conversation. I now detail below the reasons why my homeless points should be reinstated.

 

I did not realise the property did not have a lift. I have three children whom I take out in a large pushchair, as a single mother it is difficult for me to get the pushchair out of the house. Also, if I was living at 20 Heanor Croft it would be impossible to do this while keeping an eye on three young active children. Therefore the property would have made my life almost impossible. For these reasons I am sure you will agree the property is unsuitable.”

 

The appellant went on to make and/or repeat a number of points she had already made, noting on internal page 2 (page 121) that:

“I made a mistake in bidding for the property at 20 Heanor Croft. I also made a mistake in not withdrawing my bid, had I done so I wouldn’t be in this situation. I was naïve.”

 

25.       Finally, on 16 December 2016, BCC issued its “review decision” letter (pages 12- 21). As already noted, substantial passages of text of this letter replicate passages in the earlier “minded to” letter. The key new text is that at internal page 4 (page 15), where Jenny Carter wrote:

“In email dated 13 December 2016 you advised that you consider the offer address unsuitable because you have 3 small children and a large pushchair and the offer address is accessed by stairs. The accommodation offered is family accommodation. There are many households of a similar makeup who have to negotiate one flight of stairs on a daily basis. We do not consider that you are anymore disadvantaged than them. We are not aware that anyone in the household has any medical condition that would prevent them from negotiating the stairs. Your eldest child is 4 years old and can negotiate stairs independently with you walking behind, whilst carrying the baby and holding the hand of your other child for example. The building is secured by way of an entrance door so you could secure the safety of the children in the property and then collect the pushchair. Accessing the accommodation by stairs may not be ideal, however we do not consider that this makes the property unsuitable. The advert for the offer address clearly stated the floor on which the property was located and I am satisfied that this information was available to you. I am satisfied that the property type was known to you when you placed a bid for the property.”

 

While the letter then referred to a number of other matters, this is the key paragraph in the context of the appeal.

 

The issues in the appeal

26.       The first point raised in the course of oral submissions concerned the operation or process of a review, and the effect of regulation 8 (2). The appellant’s case is that regulation 8 (2) continues to govern the process of a review until that process is completed by the making of a review decision in accordance with the Act and the 1999 regulations. The respondent’s case is that its obligation to send a “minded to“ letter came to an end when it sent its “minded to“ letter dated 6 December 2016.

 

27.       I accept Mr Nabi’s submissions on this point. In my judgement, the provisions of regulation 8 (2) continue to govern the process of a review until that process is completed by the making of the review decision in accordance with the Act and the 1999 regulations. Whether a further “minded to” letter is required is always a matter which depends upon the facts and circumstances of the particular case. But I reject any submission to the effect that, once one “minded to“ letter has been sent, the obligation to send any further “minded to “ letter ceases.

 

28.       The second point raised in the course of oral submissions concerned the proper approach of a housing authority in the position of the respondent. Paragraph 17.4 of chapter 17 headed ‘Suitability of accommodation’ of the July 2006 Code of Guidance provides:

“Space and arrangement will be key factors in determining the suitability of accommodation. However, consideration of whether accommodation is suitable will require an assessment of all aspects of the accommodation in the light of the relevant needs, requirements and circumstances of the homeless person, and his or her family. The location of the accommodation will always be a relevant factor.”

 

Paragraph 17.6 of that guidance also refers.

 

            In  Slater v LB Lewisham [2006] EWCA Civ 394; [2006] HLR 37 Chadwick LJ held:

“In judging whether it was unreasonable to refuse such an offer, the decision-maker must have regard to all the personal characteristics of the applicant, her needs, her hopes and her fears and then taking account of these individual aspects, the subjective factors, ask whether it is reasonable, an objective test, for the applicant to accept. The test is whether a right-thinking local housing authority would conclude that it was reasonable that this applicant should have accepted the offer of this accommodation.” (my underlining)

 

            In November 2012 supplementary guidance was published by the Department for Communities and Local Government. In the section headed ‘Obligations in respect of existing accommodation’ paragraph 22 provides:

“This change does not mean that those subjective suitably issues which have become associated with ‘reasonable to accept’, such as those discussed in Ravichandran v LB Lewisham or Slater v LB Lewisham, are not to be taken into account. The intention is that these factors as already highlighted in paragraph 17.6 of the Homelessness Code … continue to be part of those factors/elements an authority consider in determining suitability of accommodation.”

 

29.       Mr Nabi submitted (DG/38) that the combined effect of that guidance and Slater is that, in carrying out a review, a housing authority in a position of the respondent continues to be under a duty to have regard to the dual nature of its function, in the sense explained by Chadwick LJ i.e. to have regard to the personal characteristics of, and subjective factors which relate to, the applicant (the subjective factors), and then ask whether it was reasonable for the applicant to accept (the objective factor). Miss McKeown did not make any submission to the contrary, and I accept Mr Nabi’s submissions in this regard.

 

30.       However, the main point in the appeal – put simply – is whether, once the appellant articulated her concerns about the physical characteristics of the property (which Mr Nabi described in his written submissions as “the asserted entering/leaving problems and associated child safety issues”) the respondent should have sent a further “minded to“ letter relating to those matters before it reached its review decision.

 

31.       In his written submissions Mr Nabi submitted as follows:

“38.         New or additional facts/issues that emerge during the review will expose a deficiency in the original decision, and may require more than one minded to letter: NJ v Wandsworth LBC [2013] EWCA Civ 1373.

…

53.          The council accepted that it was bound to invoke regulation 8 (2) on review, and sent a “minded to“ letter. However, it breached the requirements of regulation 8 (2) by not putting its provisional reasoning on the asserted entering/leaving problems and associated child safety issues (namely relayed ascent and descent, leaving the children unsupervised) in advance of the review decision.

 

54.          The council cannot rely on the “minded to“ letter that was sent. Given that (a ) it accepted that regulation 8 (2) was engaged; and (b) the “minded to “ letter did not address the asserted entering/leaving problems, it was required to send a further “minded to“ letter to explain why it was still of the view that the premises were suitable and reasonable to accept.”

 

32.       In her written submissions, Miss Amy Just of counsel, then instructed on behalf of the respondent, and whose written submissions Miss McKeown adopted in the appeal, submitted as follows:

“29.      The scope of enquiries is for the authority: R v RB of Kensington & Chelsea ex p Bayani (1990) 22 HLR 406. The authority can only err in law if they failed to make an enquiry that no reasonable local housing authority would have regarded … as unnecessary: Cramp v Hastings BC [2005] EWCA Civ 1005.

…

52.       The objection raised by the appellant in respect of the lack of a lift was raised for the first time on 13 December 2016 i.e. after the decision of 6 October 2016[3] that the property was suitable, and the decision of 31 October 2016 to discharge duty in light of her refusal to accept the offer.

 

53.       Essentially, the appellant’s complaint is that she did not have an opportunity to respond to the reasons the respondent concluded that the accommodation was suitable. In particular her complaint centres on the fact … she was deprived of the opportunity of knowing the reasoning “on the asserted entering/leaving problems and associated child safety issues …” in advance of the review decision.

 

54.       … this ground of challenge is misconceived and cannot be said to fall within the ambit of regulation 8, nor properly be said to amount to a procedural deficiency.”

 

33.       Miss Just then submitted that a similar challenge had been raised in Maswaku v Westminster CC [2012] EWCA Civ 669. However, in his oral submissions (DG/30) Mr Nabi sought to distinguish the facts of Maswaku from those in the present case, in particular because in Maswaku there had been a discussion between the applicant and the housing authority about the relevant issues before the housing authority wrote its discharge of duty letter, with the consequence that at the review stage, the housing authority was considering further evidence which had been raised in relation to a matter that had already been put in issue. Mr Nabi further submitted that in Maswaku the housing authority had decided that the “minded to“ procedure had not been triggered, whereas in the present case the respondent accepted at an early stage that regulation 8 (2) was engaged. I accept Mr Nabi submission that the facts in Maswaku were materially different from those in the present case, and accordingly find that the decision in Maswaku is not directly applicable to the decision in this appeal.

 

34.       The photographs exhibited to the applicant’s witness statement are revealing. They show two flights of approximately 14 substantial steps; they are broken in the middle (apparently at first-floor level) by a landing, so that the higher flight of stairs is directly above the lower flight of stairs. As a consequence, a person on the higher flight of stairs cannot see down to the lower flight of stairs. The front of the building is shown in the photographs at pages 66 and 68; the entrance door on the ground floor is the green door shown to be seen at the extreme left hand corner of the photograph at page 66. After ascending the two internal flights of stairs, a person emerges at the front of the building from one of the two “open” entrances at second floor level, and then walks along the external walkway, past the front door to another flat, and then reaches the subject property, which has a black front door.

 

35.       In his oral submissions Mr Nabi referred to the decision of the Court of Appeal in Banks v Kingston upon Thames LBC [2008] EWCA Civ 1443, in which Lawrence Collins LJ cited the judgement of Carnwath LJ in the earlier decision of  Hall v Wandsworth LBC [2005] 2 All ER 192, where the latter held:

“29       . … The word ‘deficiency‘ does not have any particular legal connotation. It simply means ‘something lacking’ … 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 judgement’ …

 

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

 

36.       The issue here is whether the reviewing officer considered that the point about the stairs and access (in the context of a mother with three young children, plus a pushchair) was an important aspect of the case; and if so, whether it had been addressed adequately or at all by the original decision maker. If the reviewing officer considered that an important aspect of the case had not been considered adequately or at all, but nevertheless intended to confirm the original decision, then the reviewing officer has to give notice of the grounds on which he or she intended to do so.

 

37.       By definition, in this case the original decision maker had not considered the stairs/access point, because the appellant had not raised it by the time the discharge of duty letter was written. In support of his written submissions, in particular those at paragraphs 53 and 54, Mr Nabi submitted (DG/31 & 43) that in circumstances – as here – where an applicant raises a new point after the reviewing officer had written a minded to letter, the reviewing officer in effect had a choice: (1) if the new point was neither manifestly improbable or implausible, then the new point called for a further minded to letter, and the reviewing officer should make further enquiries; alternatively (2) if the new point is, or the reviewing officer considered the point to be, manifestly improbable or implausible , then the reviewing officer is entitled to come to such a conclusion, but should state in the decision letter why he or she was not going to make any further enquiries into the new point.

 

38.       In support of the those submissions, Mr Nabi referred to the decision of the Court of Appeal in Mohamoud v Birmingham City Council [2015] PTSR 17;  [2014] EWCA Civ 227. In paragraph 46 of her judgement Proudman J held:

“Some common sense has to be applied. To the extent that the assertions were manifestly insupportable, Ms Carter was entitled to hold that there had been no deficiency and the original decision in failing to consider them, and therefore no requirement for a “minded to find” notice. If she were to make such a finding, however, she should have given full and detailed reasons for doing so, which would enable the court to take a view as to the sufficiency of that finding. If, on the other hand, Ms Mohamoud’s reasons were at all plausible, more than shadowy, a “minded to find” notice should have been sent to enable Ms Mohamoud to argue the point.” (my underlining).

 

39.       The issue in the present case is whether the new point which the appellant raised about the physical characteristics of the property, in the context of her own circumstances, was either manifestly insupportable or implausible. In my judgement, it was not, or was not of such a nature that the reviewing officer, acting reasonably, could consider it to be such. In other words, a decision that the new point was either manifestly insupportable or implausible was not a decision which fell within the range of reasonable decisions open to a reviewing officer, acting reasonably and having regard to all the circumstances of the case.

 

40.       Mr Nabi criticised the content of the ‘new’ paragraph in the review decision letter (page 15) as being demonstrably inappropriate, because it had been written without the reviewing officer having any first-hand knowledge of the physical characteristics of the property. Mr Nabi pointed to the phrase “one flight of stairs” as being pertinent in this regard. In my judgement there is force in that criticism. Miss McKeown submitted (DG/49) that there was nothing in the point about the stairs and access (in the context of the appellant’s personal circumstances) to cause the reviewing officer to reconsider the original decision. For the reasons set out above, I reject that submission.

 

Conclusion

41.       In those circumstances, primarily on the basis of grounds 1 & 2, but also on the basis of the remaining grounds, the appeal succeeds. Although Mr Nabi submitted in paragraph 64 of his written submissions that the review decision should be varied, and in the alternative quashed, in opening his oral submissions at the hearing of the appeal (DG/29) he submitted that the appropriate remedy – if the appeal succeeded – was to quash the review decision, so that the housing authority could reconsider the matter. In my judgement, that would be the more appropriate remedy.

 

42.       I shall therefore invite the parties to prepare a draft order to reflect the outcome of the appeal, and deal with any consequential matters, including the question of costs if such matters can be agreed.

 

 

 

DG

12.05.17