Bury Metropolitan Borough Council v Gibbons

An application engages the homelessness duties in Part 7 of the Housing Act 1996 when its substance gives a local housing authority reason to believe that the applicant may be homeless or threatened with homelessness. Its formal presentation as a housing-allocation application does not prevent that result.

A failure to give appropriate preventive advice may be relevant to whether the applicant subsequently became homeless intentionally. The reviewing officer must address that matter where it is substantial.

For regulation 8(2), a deficiency arises where a reviewer rejects the original decision’s factual basis and proposes a different basis for the same adverse conclusion. The applicant must then have an opportunity to make written and, if requested, oral representations. A face-to-face meeting may be required where it is the only effective means of receiving relevant oral representations.

The council decided that a homeless applicant with a dependent daughter had become intentionally homeless. Its original decision proceeded on the basis that he had savings available when he left rented accommodation. On review, the council accepted that he had no such funds but attributed his inability to pay rent to earlier frivolous expenditure.

On an appeal under section 204 of the Housing Act 1996, HHJ Tetlow in Salford County Court allowed the applicant’s appeal and remitted the matter. He held that the council had failed to consider its earlier omission to provide homelessness-prevention advice, matters arising under section 191(2), and the applicant’s request for an oral meeting.

The council appealed on four grounds. The central issues were when the Part 7 duties arose, whether the omitted advice and section 191(2) matters required consideration, whether the changed factual basis was a deficiency under regulation 8(2), and whether an oral meeting was required.

1. Appeal dismissed unanimously. The application received by the council stated expressly that the applicant and his dependent daughter were about to become homeless and sought assistance. Looking to its substance, the council had reason to believe that they were threatened with homelessness. Its duties under sections 183 and 184 of the Housing Act 1996 were therefore engaged, notwithstanding that the form was also an application under Part 6: [2010] EWCA Civ 327, paras 30–31.

2. The council should consequently have advised the applicant that housing benefit might be available and that he need not leave before his landlord obtained a possession order. Its failure to give appropriate advice at the point when homelessness was imminent could not automatically be treated as immaterial. That omission was relevant to whether the applicant became homeless intentionally and was a substantial matter which the reviewing officer had to consider: paras 32–35.

3. The reviewing officer had not addressed whether the applicant was unaware of his entitlement to housing benefit or whether his omission to claim it was an act or omission in good faith by a person unaware of a relevant fact within section 191(2). The county court had correctly left those factual questions for consideration on remittal rather than deciding that section 191(2) necessarily determined the result: paras 36–39.

4. The court approved the broad and untechnical construction of “deficiency” in regulation 8(2) adopted in Hall v Wandsworth LBC; Carter v Wandsworth LBC [2004] EWCA Civ 1740. A deficiency exists where an important aspect was not, or was not adequately, addressed by the original decision-maker. The reviewer’s rejection of the original factual basis and proposed substitution of a different basis for the same adverse conclusion fell within that provision: paras 40–45.

5. Regulation 8(2) does not invariably require a full hearing, and oral representations may sometimes be made by telephone. Here, however, the applicant could not make relevant submissions without legal assistance, and his advisers had requested a meeting. Acceding to that request was the only effective way for the council to receive relevant oral representations. The failure to hold the meeting was therefore procedurally defective: paras 46–48.

6. The “minded to” letter would not, by itself and apart from regulation 8(2), have created a legitimate expectation of a full oral hearing. Since regulation 8(2) applied, however, the request for a meeting had to be accommodated in the circumstances. The matter remained remitted to the council for a further review decision: paras 49–54.

1. Court of Appeal (Civil Division): The council’s appeal was dismissed unanimously. The matter remained remitted to the council for a further review decision: [2010] EWCA Civ 327.

2. Salford County Court: HHJ Tetlow allowed the applicant’s appeal under section 204 of the Housing Act 1996 and remitted the matter to the council for reconsideration. No citation is stated.

3. Local authority review: The reviewing officer upheld the council’s determination that the applicant had become intentionally homeless.