Obiorah v London Borough of Lewisham

A local authority’s allocation scheme for permanent housing does not, without clear wording, create a legitimate expectation that an applicant will receive permanent accommodation within a particular time or that the authority will stop offering temporary accommodation under its separate homelessness duties. A duty under Regulation 8(2) to issue a minded-to notice arises only where the reviewer considers that the original decision or the way it was made contains a deficiency or irregularity and is minded to decide against the applicant. Once that condition exists, notice cannot be omitted merely because representations seem futile. Fairness does not require notification of a hypothetical possibility that temporary accommodation may later become permanent where the offer and consequences of refusal are clear and a review opportunity is provided.

The appellant had been owed accommodation by the respondent under section 193 of the Housing Act 1996 and had lived in temporary accommodation since 2004. The respondent’s allocation scheme addressed permanent housing offers, and the appellant had disputed earlier offers. In June 2011 she refused a further temporary offer, asserting that she was entitled to permanent accommodation. The respondent treated her objections as a suitability review under section 202, upheld the offer and said its duty had ended. The Central London County Court dismissed her appeal under section 204.

Before the Court of Appeal, the issues were legitimate expectation, the notification requirements in Regulation 8(2), and procedural fairness, including whether the authority had to mention the possibility that the flat might later become permanent.

Disposition

The Court of Appeal, in the judgment of McCombe LJ agreed by Lloyd Jones LJ and Kitchin LJ, dismissed the appeal. The court would have allowed the amendment adding the legitimate-expectation ground, but would have refused the proposed Regulation 8 ground because it had not been argued below and was not clearly articulated.

Legitimate expectation

The court applied the approach in R (Bibi) v Newham LBC [2001] EWCA Civ 607; [2002] 1 WLR 237. The first question was what the authority had objectively committed itself to. The allocation scheme stated only that an unsuitable permanent offer would be withdrawn and another made when a suitable property became available. It did not promise permanent accommodation within a specified time or area, and it did not prevent the authority from offering temporary accommodation.

The scheme operated under Part VI of the Housing Act 1996. It did not impair the respondent’s separate Part VII homelessness duties. The respondent had not represented that it would abandon its right to offer temporary accommodation or guarantee a permanent dwelling within Lee Green Ward. The appellant therefore had no legitimate expectation which had been breached.

Regulation 8 and fairness

Regulation 8(1) required consideration of the applicant’s representations. Under Regulation 8(2), notification was mandatory where the reviewer considered that the original decision, or the manner in which it was made, contained a deficiency or irregularity and was minded to decide against the applicant. The court accepted the principles in Mitu v Camden LBC [2011] EWCA Civ 1249 and Lambeth LBC v Johnston [2008] EWCA Civ 690 that the reviewer could not dispense with notice merely because further representations appeared unlikely to affect the outcome. However, there was no evidence that the reviewer considered any deficiency or irregularity, and objectively none existed. The Regulation 8(2) obligation therefore did not arise. In any event, the appellant had received a letter inviting representations.

There was no legal obligation to notify the appellant of the hypothetical possibility that the temporary flat might later become permanent. The offer was clear, stated the consequences of refusal, and generated a review opportunity. The decision that the accommodation was suitable was not rendered unlawful by the omission. Appeal dismissed.

• Court of Appeal (Civil Division) dismissed the appeal on 12 April 2013.
• Central London County Court, on 19 January 2012, dismissed the appellant’s appeal under section 204 of the Housing Act 1996 from the respondent’s review decision.