Makisi v Birmingham City Council

Where regulation 8(2) of the 1999 Review Procedures Regulations is engaged, an applicant may require a face-to-face oral hearing before the reviewer. The local housing authority cannot substitute a telephone process merely because it considers that method sufficient.

The hearing is limited. It permits the applicant, with or without a representative, to make oral representations to the reviewer. It does not entitle the applicant to call witnesses or cross-examine. The reviewer may regulate the time, place and procedure.

A deficiency in an original homelessness decision is assessed broadly and practically. Imperfect drafting does not suffice where the decision adequately addresses the important issues and communicates its essential basis.

Three applicants sought reviews of homelessness decisions under Part 7 of the Housing Act 1996. In each case, the reviewer was minded to uphold an adverse decision after identifying, or being asked to consider, a possible deficiency or irregularity in the original decision. Each applicant requested a face-to-face meeting to make oral representations. Birmingham City Council refused and offered telephone representations instead.

The Birmingham County Court dismissed all three appeals under section 204. The Court of Appeal considered whether regulation 8(2) of the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 gave the applicant, rather than the authority, the choice of an oral hearing. In Mr Nagi’s appeal, it also considered whether the original decision letter contained a deficiency or irregularity engaging regulation 8(2).

1. The appeals of Ms Makisi and Ms Yosief were allowed; Mr Nagi’s appeal was dismissed. Etherton LJ, with whom Rimer and Maurice Kay LJJ agreed, held that regulation 8(2)(b) of the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 gives an applicant the right to demand a face-to-face oral hearing when the regulation is engaged.

2. The statutory source was section 203(2)(b) of the Housing Act 1996, which expressly contemplates regulations specifying circumstances in which an applicant is entitled to an oral hearing. The history of the 1996 and 1999 regulations, together with paragraph 19.12 of the statutory Code, supported that construction. The right to make oral representations includes a meeting, although it is not confined to one. It would be incongruous for the authority, without express words, to decide whether the applicant could enjoy that means of oral advocacy.

3. The hearing is not a judicial or adversarial process. Regulation 8(2) authorises only oral representations by the applicant or someone acting for the applicant. It does not confer a right to call third-party or expert witnesses, or to cross-examine. Subject to preserving that opportunity, the reviewer may determine the time, place and procedure of the meeting, including who will attend. Resource arguments did not alter that conclusion.

4. Mr Nagi could not establish a deficiency or irregularity in the original decision. The proper inquiry was broad and untechnical: whether an important aspect of the case had not been addressed, or addressed adequately, to an extent material to procedural fairness. Although the letter was poorly drafted, a reasonable reader would understand that the authority had considered his wife’s medical condition, safety on stairs and the relevant medical material. It sufficiently conveyed the basis of the decision. Maurice Kay LJ agreed, while observing that the reasons had come close to insufficiency.

• Court of Appeal (Civil Division): Allowed the appeals of Ms Makisi and Ms Yosief and dismissed Mr Nagi’s appeal.
• Birmingham County Court: HH Judge Worster dismissed Ms Makisi’s appeal on 11 January 2010. HH Judge Robert Owen QC dismissed Ms Yosief’s appeal on 18 March 2010 and Mr Nagi’s appeal on 3 June 2010.