Hall v London Borough of Wandsworth

For the purposes of regulation 8(2), a deficiency in an original homelessness decision is not confined to a legal or procedural error. It includes an important aspect of the case that was not addressed, or was addressed inadequately, where that omission matters to procedural fairness. If a reviewer proposes adversely to confirm such a decision, the applicant must receive advance notice of the proposed grounds and an opportunity to make written and, if requested, oral representations.

Priority-need vulnerability requires assessment of the risk of injury or detriment while homeless, compared with an ordinary homeless person. Ability to obtain accommodation may be relevant, but is not decisive. A later statement by the sole decision-maker may elucidate a review decision, but the reasons, read together, must adequately explain the treatment of material medical evidence.

Two homeless applicants appealed from decisions of the Wandsworth County Court dismissing their statutory appeals against review decisions of the London Borough of Wandsworth.

Mr Hall relied on evidence that homelessness could worsen his depression and lead to psychosis. The reviewing officer confirmed the original finding that he lacked priority need after obtaining further medical advice, without giving him an opportunity to address that advice. Mrs Carter relied on medical evidence of depression and the likely deterioration of her health. The review decision upheld the original refusal of priority need, and the County Court admitted a subsequent statement from the reviewing officer.

The central issues were the scope of regulation 8(2) of the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999, the application of the vulnerability test, and whether the reasons for Mrs Carter’s review decision were adequately explained.

1. Appeals allowed. The cases were remitted to the council for reconsideration.

2. Per Carnwath LJ, with whom Waller LJ and Sir William Aldous agreed, regulation 8(2) is engaged where the reviewer considers, broadly and without technicality, that an important aspect of the case was not addressed or was inadequately addressed in the original decision. A deficiency is not restricted to an error that would itself found a legal challenge. It must, however, be sufficiently important to procedural fairness to justify the additional safeguard. The reviewer’s evaluative judgment is challengeable only on Wednesbury grounds.

3. Mr Hall’s original decision was deficient. Its language left uncertain whether the council had applied the correct test in R v Camden London Borough Council ex parte Pereira [1998] 31 HLR 317: whether, when homeless, the applicant would be less able to fend for himself than an ordinary homeless person so that injury or detriment would result. The issue was not simply whether he could secure accommodation. His later medical report raised a prima facie case of priority need and led the reviewer to obtain further advice. The substance of the adverse reasoning based on that advice should have been disclosed before the review decision, with an opportunity for representations. Regulation 8(2) was therefore breached.

4. The council may obtain expert medical advice to assist its investigation and assessment. There is no automatic duty to disclose advice which merely assists in weighing material already fully in issue. Fairness will normally require an opportunity to comment where the advice introduces significant new or contentious points. That wider fairness issue did not require decision in Mr Hall’s case because regulation 8(2) supplied the applicable safeguard.

5. In Mrs Carter’s case, the reviewing officer’s later statement was admissible in principle under the guidance in R v Westminster City Council ex parte Ermakov [1996] 2 All ER 302, since he was the sole decision-maker and could elucidate what he had considered. But the review letter and statement together gave no substantive explanation for rejecting the general practitioner’s medical assessment of serious depression and likely deterioration. The decision therefore failed adequately to demonstrate lawful consideration of that material evidence. Although the original decision in her case was not deficient for regulation 8(2) purposes, its reasons had applied the correct test and her representatives had seen the file, the appeal succeeded on the inadequacy of the review reasons.

• Court of Appeal (Civil Division): allowed both appeals and remitted the cases to the council for reconsideration: [2004] EWCA Civ 1740.
• Wandsworth County Court: HH Judge Collins dismissed Mr Hall’s appeal on 19 November 2003.
• Wandsworth County Court: HH Judge Walker dismissed Mrs Carter’s appeal on 29 January 2004.