Slaiman, R (on the application of) v London Borough of Richmond Upon Thames

A housing authority has an unfettered discretion under section 202(3) of the Housing Act 1996 to extend the time for requesting a homelessness review. It is not ordinarily required to assess the merits before deciding that question. The authority may nevertheless need to consider the merits where refusing to do so would be obviously perverse, such as where the proposed review is clearly bound to succeed. A section 193 duty is not ended by a later change of circumstances unless the statutory termination provisions apply. It may, however, be rescinded where fresh evidence shows that the original acceptance resulted from a fundamental error of fact. A section 202 review considers the underlying duty afresh and is not confined to the reasons given in the original decision. The claim for judicial review was refused.

The claimant had been accepted as eligible, homeless, in priority need and not intentionally homeless, and the authority accepted the duty under section 193 of the Housing Act 1996. After information emerged that she had returned to the matrimonial home, the authority purported to discharge that duty and notified her of the right to seek a review within 21 days.

Her solicitors sought a review several weeks out of time and requested an extension under section 202(3). The authority refused the extension after interviewing the claimant. It considered that there was no adequate explanation for the delay, while recording that the proposed review was arguable but not plainly decisive. The issue was whether that refusal was unlawful or Wednesbury unreasonable.

1. The court granted permission to apply for judicial review but refused the claim. The defendant was awarded costs, subject to the usual legal aid proviso, and the claimant’s publicly funded costs were ordered to be subject to detailed assessment. Permission to appeal was refused.

2. Section 202(3) gives the authority an unfettered discretion. The statutory scheme seeks both orderly management of housing resources and, where appropriate, an indulgence to a homeless applicant whose proposed review merits keeping the opportunity open. The authority is not invariably required to balance delay against prospects of success or even to form a provisional view of the merits.

3. An exceptional case may arise where refusing to consider the merits would be obviously perverse because the review was plainly bound to succeed. That qualification did not assist the claimant. The evidence permitted different conclusions about whether the original acceptance of the section 193 duty rested on a fundamental mistake of fact.

4. The court adopted the distinction between a subsequent change of circumstances and fresh evidence about the original state of affairs. The former does not ordinarily end a section 193 duty, subject to the express statutory termination provisions. The latter may justify rescission of the original decision where it reveals a fundamental error of fact. Information that the claimant had returned to, and shared a bed in, the matrimonial home could properly be treated as fresh evidence bearing on whether priority need had ever existed.

5. On a section 202 review the original decision is reconsidered afresh. The question would be whether the section 193 duty existed, rather than whether the wording of the initial purported discharge was correct. The reviewing authority could address whether the claimant had ever been in priority need, subject to legal reasonableness.

6. The absence of a general right to be heard did not determine the application. The claimant had in fact been interviewed, the allegation that she had not feared domestic violence had been put squarely to her, and the officer was entitled to conclude that she knew of the time limit. The decision could not be criticised as perverse or Wednesbury unreasonable.

7. The court stated that the Regulation 8 argument failed because the opportunity had been lost through failure to request a review in time.

First-instance judicial review in the Administrative Court. The court granted permission but refused the substantive claim. Permission to appeal was refused.