Mohamoud v Birmingham City Council

Under regulation 8(2) of the homelessness review regulations, a reviewing officer must consider whether matters emerging after the original decision reveal that an important issue was absent or inadequately addressed. This principle extends to pre-existing circumstances first raised on review, including an applicant’s plausible explanation that confusion prevented an informed refusal of accommodation.

The assessment of deficiency is objective, although it must account for the applicant’s personal circumstances. If the explanation is more than fanciful and further representations could affect the review, the officer must give notice of the provisionally adverse view and permit oral or written representations. Comprehensive representations made before review do not cure a failure to provide that safeguard.

The appellant was owed the main homelessness duty by Birmingham City Council under section 193 of the Housing Act 1996. She refused the Council’s final offer of accommodation. The Council decided that the offer had been suitable and reasonable to accept and that its duty had therefore ceased.

On review, the appellant alleged for the first time that she had misunderstood the one-offer policy because English was not her first language, the bidding arrangements confused her and friends had advised her that she would receive three offers. The reviewing officer rejected those explanations and upheld the original decision without serving notice under regulation 8(2) of the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999.

His Honour Judge McKenna dismissed the appellant’s statutory appeal. On the second appeal, the issue was whether the newly raised information could reveal a deficiency in the original decision and require a “minded to find” notice, although the reviewing officer herself found no deficiency.

1. Appeal allowed. The Council’s review decision was quashed because the reviewing officer ought to have served a notice under regulation 8(2) of the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999. Proudman J gave the leading judgment. McFarlane LJ agreed, and Moore-Bick LJ agreed with additional reasons.

2. Regulation 8(2) must be construed purposively to protect overall procedural fairness. A deficiency in an original decision is not confined to an error apparent when that decision was made or to circumstances that changed afterwards. Pre-existing matters first raised on review may reveal that an important issue was absent or inadequately addressed. There is no material distinction where the newly raised matter, such as confusion, may itself explain why it was not raised earlier.

3. Whether there is a relevant deficiency requires an objective assessment informed by the applicant’s personal circumstances. The question is whether the matter is sufficiently important to procedural fairness to justify the additional safeguard. A reviewing officer may reject a manifestly insupportable assertion without serving notice, but should give full and detailed reasons. If the assertion is plausible or more than shadowy, notice should be served so that the applicant can answer the officer’s provisionally adverse reasoning.

4. The alleged misunderstanding was central because, if true and known to the original decision-maker, it might have shown that the refusal was not informed and could not be taken at face value. The reviewing officer could be highly sceptical, but the evidence did not entitle her to reject the explanation out of hand. Further representations might have affected the decision.

5. The opportunity to make representations before the review decision did not cure the omission. Regulation 8(2) gives the distinct right to know the reviewer’s provisional adverse reasons and to answer them specifically in writing or orally.

6. The judgment did not determine the merits of the homelessness review or entitle the appellant to another offer. Those matters remained for the housing officer on a further review.

1. Court of Appeal (Civil Division): Allowed the second appeal and quashed the Council’s review decision because a regulation 8(2) “minded to find” notice should have been served: [2014] EWCA Civ 227.

2. County Court: His Honour Judge McKenna dismissed the statutory appeal under section 204 of the Housing Act 1996 on 15 April 2013.

3. Birmingham City Council: On 15 October 2012 the reviewing officer upheld the original decision that the Council’s section 193 duty had ceased.