Robibul Alam Mitu v London Borough of Camden

Under regulation 8(2) of the homelessness review regulations, a reviewing officer must give advance notice of a proposed adverse decision where an important aspect of the original decision was absent or inadequately addressed and the deficiency is sufficiently important to procedural fairness.

The original decision concerns what statutory duty the housing authority owes. Findings on intentional homelessness and priority need are issues leading to that decision. A reviewer who rejects an important finding but proposes to confirm the duty on different grounds must permit further written and, if requested, oral representations. The reviewer cannot dispense with that safeguard merely because further representations appear unlikely to alter the outcome.

The appellant applied to Camden for homelessness assistance under Part VII of the Housing Act 1996. Camden initially found him intentionally homeless and not in priority need, so that it owed only a duty to provide advice and assistance.

On review, the reviewing officer reversed the finding of intentional homelessness but maintained that the appellant lacked priority need. He therefore confirmed the advice-and-assistance duty, declined to exercise the resulting discretion to secure accommodation, and gave no advance notice under regulation 8(2) of the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999.

Her Honour Judge Baucher dismissed an appeal in the Central London County Court. The issue before the Court of Appeal was whether the reviewing officer had identified a deficiency in the original decision and was consequently required to notify the appellant of his provisional adverse conclusions and permit further representations.

1. Appeal allowed. Lewison LJ delivered the leading judgment, with which Sullivan LJ agreed. Rix LJ agreed in the result and on the material deficiency in this case, while expressing a narrower view of when regulation 8(2) is engaged.

2. A decision under section 184 of the Housing Act 1996 determines whether the authority owes a duty and, if so, what duty. Intentional homelessness and priority need are issues decided on the way to that ultimate decision. The legislation and regulations consistently distinguish between a decision and the issues underlying it.

3. Regulation 8(2) applies where, viewed broadly and untechnically, an important aspect of the case was absent from, or inadequately addressed by, the original decision. The deficiency must be sufficiently important to procedural fairness to justify the additional safeguard. Further representations must be capable of making a difference to the decision under review. Hall v Wandsworth LBC [2004] EWCA Civ 1740 and Banks v Kingston-Upon-Thames RLBC [2008] EWCA Civ 1443 were applied.

4. Once the conditions of regulation 8(2) are satisfied, the obligation is mandatory. The reviewer must explain the proposed adverse decision and allow written and, if requested, oral representations. The reviewer has no dispensing power based on a prediction that further representations will be futile. Lambeth LBC v Johnston [2008] EWCA Civ 690 was applied.

5. The reviewing officer rejected the original finding of intentional homelessness but confirmed the advice-and-assistance duty by maintaining the adverse finding on priority need. He thereby identified a deficiency in an important aspect of the original decision and confirmed the decision on different grounds. His revised finding also brought into play the discretion under section 192(3) to secure accommodation. Advance notice could have enabled representations about both the medical assessment and the exercise of that discretion.

6. Rix LJ considered that regulation 8(2) requires an inadequacy material to procedural fairness, rather than any deficiency within its literal wording. That requirement was satisfied because the changed finding created a section 192(3) discretion and made further representations potentially valuable.

1. Court of Appeal (Civil Division): The appeal was allowed. The reviewing officer was required to comply with regulation 8(2) of the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999.

2. Central London County Court: Her Honour Judge Baucher dismissed the appellant’s statutory appeal against Camden’s review decision.

3. London Borough of Camden review: The reviewer reversed the finding of intentional homelessness but confirmed that the appellant was not in priority need. He maintained the advice-and-assistance duty and declined to exercise the discretion to secure accommodation.