London Borough of Lambeth v Johnston

Where a reviewer finds, or ought rationally to find, a material deficiency or irregularity in an original homelessness decision, regulation 8(2) imposes mandatory safeguards. If the reviewer is nevertheless minded to decide adversely, the applicant must receive notice of the provisional reasons and an opportunity to make written and, if requested, oral representations.

The reviewer has no discretion to dispense with those safeguards because the applicant has previously made representations or because further representations appear unlikely to assist. The opportunity to address the reviewer’s provisional reasoning is a potentially valuable procedural right. Its denial may seriously prejudice the applicant and vitiate the review decision.

The respondent sought housing assistance under Part VII of the Housing Act 1996. Lambeth’s original decision under section 184 was that he lacked priority need. A first review decision was quashed by the Wandsworth County Court, which required a further review.

On the second review, Lambeth again decided that he was not in priority need. The reviewer did not issue a regulation 8(2) “minded to find” notice, despite the asserted procedural deficiency in the original decision. Mr Recorder Barker allowed the respondent’s section 204 appeal and quashed the second review decision.

Lambeth appealed. The central issue was whether its failure to comply with regulation 8(2) of the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 fatally invalidated the review decision.

Appeal dismissed. Rimer LJ, with whom Lawrence Collins and Smith LJJ agreed, held that the Recorder was entitled to quash the review decision.

1. A section 202 review is a reconsideration of the original homelessness application. The reviewer may consider later inquiries and representations. An apparent flaw in the original section 184 decision does not prevent the reviewer from reaching the same result if the material then available justifies it.

2. Regulation 8(2) nevertheless imposes a mandatory two-stage obligation. The reviewer must consider whether the original decision, or the way it was made, involved a deficiency or irregularity. That assessment is broad and untechnical. It is not purely subjective, and a failure rationally to identify a relevant deficiency may be challenged on public-law grounds.

3. If such a deficiency or irregularity exists and the reviewer is minded to decide adversely, the reviewer must notify the applicant of the provisional adverse view and its reasons, and permit oral and/or written representations. The reviewer has no discretion to dispense with that notice because the applicant has already addressed the issues, is represented, or appears unlikely to gain further benefit from it.

4. The notice gives the applicant a distinct opportunity to address the reviewer’s actual provisional reasoning. That procedural right can materially affect the result. Here, the failure to regard the inadequate original inquiry as requiring a notice under regulation 8(2) was indefensible and unlawful. It vitiated the integrity of the review decision, so the Recorder correctly quashed it.

• Court of Appeal (Civil Division) — dismissed Lambeth’s appeal and upheld the quashing of the second review decision: [2008] EWCA Civ 690.
• Wandsworth County Court — Mr Recorder Barker allowed the respondent’s appeal under section 204 of the Housing Act 1996 and quashed the review decision dated 1 February 2007.
• Wandsworth County Court — His Honour Judge Walker had earlier allowed a separate section 204 appeal and quashed the first review decision, requiring a further review.