Banks v Royal Borough of Kingston-Upon-Thames

For the purposes of Regulation 8(2), a deficiency in an original homelessness decision may arise through a material change of circumstances before the review. The provision should be construed purposively. If the changed circumstances mean that an important issue, capable of affecting an adverse review decision, was not addressed in the original decision, the reviewer must give a minded-to notice and allow representations.

This safeguard may apply even though the original decision was lawful when made. The question is whether the omission has become sufficiently important to the fairness of the review. A reviewer may take account of post-decision information and events.

The appellant applied to the respondent council for homelessness assistance. Its February 2007 decision found that he was neither homeless nor threatened with homelessness. On his request for review, he supplied a landlord’s notice to quit. The reviewing officer therefore found him homeless, but decided that he was not in priority need because he was not vulnerable within section 189(1)(c) of the Housing Act 1996.

The appellant had not been invited to make representations on priority need after homelessness became established. His appeal under section 204 was dismissed by HHJ Crawford Lindsay QC in the Central London County Court. The central issue was whether the change of circumstances made the original decision deficient for the purposes of Regulation 8(2) of the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999.

1. Appeal allowed. Lawrence Collins LJ, with whom Wilson LJ and Longmore LJ agreed, held that Regulation 8(2) applied. The original decision was lawful when made because the council had found that the appellant was not homeless. But, once the notice to quit established homelessness, that decision had become deficient because it had not addressed priority need.

2. The reviewer was entitled to consider later information and events. A literal reading of Regulation 8(2) might confine a deficiency to a defect existing when the original decision was made. Its purpose, however, is to secure a fair opportunity to address an adverse decision reached on different grounds. The court therefore adopted a purposive construction.

3. Following the approach in Hall v Wandsworth LBC [2004] EWCA Civ 1740, the relevant deficiency is an important matter not addressed, or not adequately addressed, in the original decision. It must be sufficiently important to the fairness of the procedure to justify the additional safeguard. Here, further representations on vulnerability could have affected the review decision.

4. A minded-to notice is potentially of substantial benefit because it permits an applicant to challenge the reviewer’s provisional reasoning. The council should therefore have notified the appellant that it was minded to decide priority need adversely and given him the opportunity to make oral or written representations.

5. The second ground, based on natural justice independently of Regulation 8(2), became irrelevant. The adequacy of the medical inquiries required further factual consideration. The court also observed that a fresh homelessness application was available following the change of circumstances, so the appeal did not alter the appellant’s substantive rights.

• Court of Appeal (Civil Division): Allowed the appeal in [2008] EWCA Civ 1443 on the Regulation 8(2) ground.
• Central London County Court: HHJ Crawford Lindsay QC dismissed the appellant’s section 204 appeal on 22 November 2007.