Ibrahim v London Borough of Wandsworth

Regulation 8(2) of the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 applies only to a relevant adverse decision which the applicant sought to challenge on review. It is not engaged by an error in a separate part of the original decision letter where that error was not challenged, was not upheld on review, and the review correctly stated the local authority’s duty.

An error may remain a genuine deficiency despite causing no actual detriment. On a statutory appeal, however, the court may confirm the review decision where the error had no effect on the outcome and the authority’s true duty was correctly stated and performed.

The appellant, a Somali national with three dependent children, was found intentionally homeless after the expiry of her assured shorthold tenancy. The council’s original decision letter wrongly stated that its duty was limited to advice and assistance, rather than the temporary accommodation duty owed to an intentionally homeless applicant in priority need.

The council nevertheless provided interim accommodation pending review and appeal. The review upheld the intentional-homelessness finding and correctly stated the council’s duty, but did not identify the error in the original letter. HHJ Redgrave, sitting in Wandsworth County Court, dismissed the appellant’s appeal under section 204 of the Housing Act 1996 on 2 December 2011. The central issue was whether the unaddressed error required a regulation 8(2) “minded to” notice or the review decision to be set aside.

1. Appeal dismissed unanimously. Etherton LJ held, with whom Mummery LJ agreed on the dispositive basis, that regulation 8(2) was not engaged. The erroneous statement about the limited duty owed to an intentionally homeless applicant was not a relevant decision for that purpose. The appellant had not complained of it on review; the reviewer did not uphold it; and the review letter correctly stated the duty under section 190(2)(a) of the Housing Act 1996.

2. Accordingly, the reviewer made no adverse decision on that matter which the appellant was entitled to challenge through the regulation 8(2) procedure. The appeal therefore failed without the need for a “minded to” notice.

3. Etherton LJ also held that, if the provision had been engaged, the reviewer would have had to decide whether the deficiency was sufficiently important to procedural fairness to require the mandatory safeguard. On the facts, the only proper conclusion would have been that the error was entirely unimportant. It was unrelated to the challenged section 193(2) decision, the council continued to accommodate the appellant, and the review letter corrected the legal position.

4. Sir Stephen Sedley considered that the original letter contained a real deficiency, despite the absence of detriment, and that the review had failed to notice it. In his view, the power under section 204(3) permitted the court to give effect to causation principles. Since the intentional-homelessness finding was unappealed and the correct temporary-accommodation duty had in fact been performed, the deficiency could not affect the review’s outcome. Mummery LJ agreed that there had been a deficiency and no factual detriment, but joined Etherton LJ’s conclusion that regulation 8(2) was not engaged.

5. HHJ Redgrave was therefore entitled to confirm the review decision. The court did not determine the remaining issues advanced before the county court.

• Court of Appeal (Civil Division): The second appeal was dismissed: [2013] EWCA Civ 20.
• Wandsworth County Court (HHJ Redgrave): On 2 December 2011, the judge dismissed the appellant’s statutory appeal under section 204 of the Housing Act 1996 from the review decision.
• Local housing authority review: The review decision of 9 June 2011 upheld the finding of intentional homelessness, while correctly stating the duty under section 190(2)(a).