Housing — Homelessness — Review — Council deciding applicant not in priority need for assistance as a homeless person — Officer reviewing decision failing to give notice of intention to find against applicant — Applicant unable to make written or oral representations — Whether discretion to dispense with notice — Allocation of Housing and Homelessness (Review Procedure) Regulations 1999, reg 8(2)

Johnston v London Borough of Lambeth [2008] EWCA Civ 690; [2008] WLR (D) 200

CA: Smith, Lawrence Collins and Rimer LJJ:19 June 2008

A council officer reviewing a decision that an applicant did not have priority need as a homeless person could not dispense with the statutory obligation to consider the earlier decision and, if mindful to find against the applicant, to give notice of his grounds in order for the applicant to make written or oral representations.
The Court of Appeal so stated when dismissing Lambeth London Borough Council’s appeal against a decision by Mr Recorder Barker in the Wandsworth County Court on 31 July 2007. The Recorder allowed an appeal by Robert Johnston challenging a decision of a review officer under s 202 of the Housing Act 1996 to uphold an earlier decision that Mr Johnston did not have priority need for assistance as a homeless person. The Recorder held that Lambeth had breached reg 8(2) of the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 ( SI 1999 No 71).

RIMER LJ said that reg 8(2) was not a discretionary option that the review officer could apply or disapply according to whether or not he considered that the service of a “minded to find” notice would be of material benefit to the applicant. Reg 8(2) imposed a dual mandatory obligation on the review officer. First to “consider” whether there was a deficiency or irregularity in the original decision or in the manner in which it was made. Second, if there was - and if the review officer was none the less minded to make a decision adverse to the applicant on one or more issues- to serve a “minded to find” notice on the applicant explaining his reasons for his provisional views. There was no discretion on the review officer to give himself a dispensation from complying with either of those obligations. The first part was not a purely subjective exercise but failure to arrive at the right “consideration” could be challenged on usual public law grounds. As regards the second part, the language of the regulation was unambiguously mandatory. Reg 8(2) conferred a potentially invaluable procedural right in all cases. The opportunity open to an applicant to try, by written and/or oral argument, to persuade the review officer that his reasoning for his provisional conclusion was mistaken was -at the very least- potentially of great benefit to an applicant. To be deprived of that right was or might be seriously prejudicial.
LAWRENCE COLLINS LJ and SMITH LJ agreed.

Appearances: Robert Latham( Goldbergs) for Mr Johnston; Jon Holbrook (Mr Mark Hynes, Lambeth) for the council

Reported by: Alison Sylvester, barrister