Abdi, R (on the application of) v London Borough of Lambeth

Part VII of the Housing Act 1996 does not require every decision made after a homelessness refusal to be taken by the reviewing officer. The statutory restriction applies to the decision on the section 202 review itself. An authority may therefore allocate an application for interim accommodation under section 188(3) to an appropriate officer, including the officer who made the section 184 decision. That arrangement is not inherently biased. The question is whether a fair-minded and informed observer would conclude that there was a real possibility of bias, having regard to the statutory scheme, the officer’s training and experience, the urgency of the application and the different nature of the decision. The authority must consider the merits of the challenge, new material and the applicant’s personal circumstances.

The claimant sought judicial review of the London Borough of Lambeth’s decision not to provide temporary accommodation pending review of its refusal to accept that she was homeless or in housing need. The same housing officer had made the section 184 refusal and the subsequent section 188(3) decision.

The claimant argued that the statutory scheme required the interim-accommodation decision to be made by a senior officer uninvolved in the original decision, that the officer’s involvement created apparent bias, and that the original decision was legally flawed.

1. Statutory allocation of functions. The statutory scheme restricts the identity of an officer only when an officer makes the section 202 review decision. Under regulation 2 of the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999, that officer must be senior to, and uninvolved in, the original decision. No equivalent restriction applies to a section 188(3) decision. The authority may therefore select an appropriate decision-maker, including the original section 184 decision-maker. Feld v London Borough of Barnet and Abbas Ali Pour v Westminster City Council, [2005] EWCA Civ 1307, supported that inference from Parliament’s specific regulation of one category of decision. [23]-[24]
2. Interim accommodation. The section 188(3) discretion requires consideration of the merits of the challenge to the section 184 decision, any new material capable of affecting the review, and the applicant’s personal circumstances and the consequences of refusal. The claimant’s prospects and circumstances were considered in accordance with R v London Borough of Camden ex parte Mohammed and R v London Borough of Newham ex parte Lumley. [9]-[10], [41]
3. Apparent bias. Applying the fair-minded and informed observer test in Porter v Magill, [2001] UKHL 67, and the guidance in Feld and Pour, the officer’s prior decision did not create a real possibility of bias. The two decisions concerned different issues. The interim decision required the officer to assess the merits of the proposed review among other matters, not to reconsider the same issue on the same evidence. The urgency of interim applications and the officer’s training and experience also supported the lawfulness of the arrangement. [25]-[34]
4. Merits. The authority’s duty to make enquiries did not prevent it from taking account of the applicant’s failure to provide relevant information. The enquiries required are substantially for the authority to determine, but the applicant must provide relevant information. The officer had made enquiries and was entitled to conclude that material information had been withheld. Neither the section 184 decision nor the section 188(3) decision was legally flawed. The claim was dismissed. [35]-[43]

First-instance judicial review claim. No earlier appellate decision is stated in the judgment.