Lewis v London Borough of Havering

A housing authority exercising its discretion whether to provide interim accommodation pending a statutory appeal must take into account relevant grounds of that appeal when they are available to it. That obligation requires genuine consideration, but not a meticulous appraisal of every ground or a separate response to each one. A striking or potentially decisive ground may require specific explanation.

A decision letter which does not show that the appeal grounds were considered may nevertheless be elucidated by evidence from the decision-maker. Such evidence is admissible where it confirms or clarifies the reasons rather than fundamentally altering them, and may be excluded where reliance on it would cause genuine unfairness. On the facts, the additional evidence sufficiently established that the grounds had been considered, so the appeal was dismissed.

The claimant appealed under section 204(1) of the Housing Act 1996 against a review decision that he was not in priority need and therefore was not entitled to permanent accommodation. He also challenged under section 204A the authority’s refusal under section 204(4) to provide interim accommodation pending that appeal.

The county court first quashed the refusal because the decision letter gave no reasons. After reconsideration, the authority again refused interim accommodation. The county court dismissed the renewed section 204A appeal. The central issues before the Court of Appeal were whether the authority had to consider the grounds of the section 204(1) appeal and whether subsequent evidence could establish that it had done so.

1. Appeal dismissed. The authority was obliged, when exercising its discretion under section 204(4) of the Housing Act 1996, to take into account the available grounds of the main section 204(1) appeal. A document setting out why the permanent-housing decision was said to be wrong could not simply be ignored merely because it was a notice of appeal or skeleton argument.
2. That obligation did not require a detailed judicial-style examination of every ground. The appropriate degree of consideration was case-sensitive. It would often be sufficient to refer expressly or compendiously to the notice or skeleton argument. A particularly important or striking ground might require specific comment or an explanation of why it was not significant or decisive. Housing authorities and their officers were entitled to a measure of toleration in the form of consideration required.
3. On a fair reading of the 20 October decision letter, the appeal grounds appeared not to have been considered. However, the court considered the principles stated in R v City of Westminster ex parte Ermakov 28 HLR 819 and explained in Hijazi v Royal Borough of Kensington and Chelsea [2003] EWCA Civ 692 applicable. Later evidence may identify material taken into account and elucidate the stated reasons, but it must not fundamentally alter or contradict them. The court must also consider whether admitting the evidence would be genuinely unfair to the applicant.
4. Mr Okeremi’s witness statement was admissible on the facts. He had made both the review decision and the later interim-accommodation decision. The grounds of appeal largely repeated matters already considered or alleged misunderstandings and omissions concerning Mr Lewis’s circumstances. His evidence that he had reconsidered the documentation and saw no merit in the appeal was therefore sufficient, albeit just, to establish that the grounds had been taken into account.
5. Because that evidence cured the apparent defect, it was unnecessary to decide whether the omission would otherwise have affected the outcome. The appeal was dismissed.

• Court of Appeal (Civil Division): [2006] EWCA Civ 1793 — appeal dismissed.
• Romford County Court: HHJ Polden dismissed the renewed section 204A appeal against the authority’s reconsidered refusal of interim accommodation.
• Romford County Court: HHJ Platt had earlier allowed a section 204A appeal and quashed the initial refusal because the letter contained no reasons.