Robinson v Hammersmith and Fulham

A housing authority determines an applicant’s priority need by reference to the applicant’s circumstances when its decision is made. A decision concerning a 17-year-old cannot lawfully disregard statutory priority need because the applicant is close to turning 18.

On review, the authority must correct an unlawful original decision and restore any housing rights which that decision denied. It cannot rely solely on the applicant’s later loss of priority need.

An authority may take a reasonable time to complete necessary inquiries. It cannot use average processing times, postpone a decision to avoid a statutory duty, or allow mediation to delay the independent inquiry and decision-making process under section 184 of the Housing Act 1996.

The appellant applied to the respondent housing authority as a homeless 17-year-old shortly before her eighteenth birthday. The authority initially indicated that its usual inquiry period would extend beyond her birthday. It provided temporary accommodation while seeking reconciliation with her mother through mediation.

On 10 March 2005, while the appellant was still 17, the authority told her by telephone that she lacked priority need. Written notification followed on her eighteenth birthday. The authority upheld that conclusion on review.

His Honour Judge Medawar dismissed her statutory appeal in Wandsworth County Court. He treated the one-day delay in notification as de minimis and concluded, by reference to Mohamed v Hammersmith & Fulham LBC [2001] UKHL 57, that priority need fell to be assessed at the review date. The central issues were when the section 184 decision was made, whether it was lawful, and whether the review had to remedy the resulting loss of housing rights.

1. Appeal allowed unanimously. The authority made its section 184 decision on 10 March 2005, when it communicated by telephone that the appellant lacked priority need. Whether a decision has been made is a question of fact. Although decision-making and written notification with reasons will often coincide, they were distinct on these facts.

2. The decision was unlawful. The appellant remained 17 and therefore had priority need when it was made. The de minimis principle had no application: an authority cannot disregard the statutory distinction between a 17-year-old and an 18-year-old merely because the applicant is close to her birthday.

3. The review had to recognise the illegality and restore the rights which a lawful original decision would have secured. Mohamed v Hammersmith & Fulham LBC [2001] UKHL 57 did not require the reviewer simply to apply the circumstances existing at the review date. That case did not concern an unlawful original decision which had deprived an applicant of an accrued benefit. The dictum in Crawley BC v B [2006] 32 HLR 636 CA supported protection of such a benefit from intervening events.

4. Further guidance. An authority may take a reasonable period to make necessary inquiries. If an applicant turns 18 before reasonably conducted inquiries are complete, the decision may reflect the circumstances then existing. The authority cannot, however, rely on an average or general target period to avoid investigating the individual application or providing interim accommodation.

5. An authority cannot postpone investigation or decision-making so that an applicant loses priority need on turning 18. Waller LJ approved the statement in R v Ealing LBC, Ex p Sidhu (1982) 2 HLR 45, QBD that statutory inquiries cannot be delayed in anticipation of a future change in circumstances.

6. Mediation and reconciliation are valuable but independent of the section 184 inquiry. Jonathan Parker LJ held that the two processes may proceed in parallel, but pending mediation gives no power to defer inquiries. Jacob LJ agreed that neither investigation nor decision may be delayed. Where mediation cannot be completed without depriving a genuinely homeless child of an existing right, the authority must determine and perform its full duty, using mediation as a possible means of securing suitable accommodation.

1. Court of Appeal (Civil Division): The appeal was allowed unanimously. The section 184 decision and the review decision were unlawful.
2. Wandsworth County Court: His Honour Judge Medawar dismissed the appellant’s section 204 appeal on 13 September 2005. He found that the decision was made on 10 March, treated the delay in written notification until 11 March as de minimis, and upheld the review by reference to the circumstances at the review date.
3. Local authority review: On 10 May 2005 the respondent confirmed that the appellant was not in priority need.