In early 2006 the appellant, Michaela Rowley, and her partner Alan Taylor were living in Dartford, in Kent, in private sector rented accommodation. She was pregnant. They moved out of that accommodation on 2 February 2006. On 21 February they approached Rugby Borough Council on the basis that they were homeless persons in need of assistance. On 9 March they completed an application form in which they explained their homelessness and their need for accommodation. They referred to the reason why they were homeless as “landlord wanted property back”. They detailed these circumstances:

A week after that telephone conversation on 21 March, the same housing officer wrote to Miss Rowley and Mr Taylor in these terms:

That you gave up your tenancy 264 Phoenix Place, Dartford, Kent, you were not given any written notice to leave [sic] your landlord had verbally told you that he was thinking of selling.

That your reason to move to Rugby is to be near to Alan’s brothers because Alan has Graves disease.

Michaela is pregnant and your intention was to be near to family because Michaela does not have a good relationship with her own family.

On the basis of the information she had received, on 30 March the housing officer decided that Miss Rowley and Mr Taylor were homeless and in priority need within the meaning of part 7 of the Housing Act 1996. However, she refused the application for permanent accommodation because she concluded that they were intentionally homeless. She gave the following reasons for that decision:

The case now comes before this court as a second appeal, for which Neuberger LJ, as he then was, refused permission on papers, but Arden LJ granted permission following an oral hearing.

It is necessary to refer to some of the provisions of the 1996 Act. By Section 193, the local housing authority has a duty to secure that accommodation is available for occupation by applicants who are homeless and in priority need, but the same duty does not arise if the homelessness arose intentionally. Section 191 then provides:

The primary decision of a local housing authority on these issues is made and communicated pursuant to Section 184. The right to request a review is provided for by Section 202. By Section 203, the Secretary of State may make provision by regulations as to the procedure to be followed in connection with a review and, in particular, provision may be made “as to the circumstances in which the applicant is entitled to an oral hearing and whether and by whom he may be represented at such a hearing” (see section 203(2)(b))

Pursuant to that regulation making power, the Secretary of State has promulgated the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999. Regulation 8 states:

I now turn to the decision of the county court in the present case. The judge dealt with a number of grounds of appeal, not all of which are relevant to our task today. Dealing with one of them, he said:

Before this court, Mr Cottle seeks to advance grounds of appeal under two main headings. His fundamental concern is with the fact that the reviewer did not invite oral or written representations pursuant to regulation 8(2). The condition for activation of regulation 8(2) is “if the reviewer considers that there is a deficiency or irregularity in the original decision”. There was a sterile debate in the skeleton arguments as to whether that is to be assessed objectively or subjectively.

In my judgment it is abundantly clear that the matter is one for the reviewer in the first place but that his decision is susceptible to challenge on a point of law in the county court, on grounds which conventionally would permit a judicial review; see Hall v Wandsworth London Borough Council[2004] EWCA Civ 1740, paragraph 29 per Carnwath LJ. The submission now made by Mr Cottle is that, in the present case, the reviewer ought as a matter of law to have considered that the original decision letter of 30 March was “deficient” because it failed to explain why, when the landlord had said that he wanted Miss Rowley and Mr Taylor out by the end of February, the homelessness was found to be intentional.

I cannot accept this submission. It is common ground that the word “deficiency” in regulation 8(2) is to be construed broadly. As Carnwath LJ said in Hall paragraph 29, it simply means “something lacking”. He then added:

The Code of Guidance gives a non-exhaustive list of examples of relevant deficiencies and irregularities. The question for us becomes: was it wrong in law for the reviewer not to conclude that there was something lacking in the original decision which was of sufficient importance for the fairness of the proceedings to activate regulation 8(2)? In my judgment, the answer must be in the negative. Mr Cottle’s argument is that, from the outset, the applicants had asserted that the reason why they were homeless was that the landlord had wanted the property back by the end of February because he wanted to sell it. The original decision letter of 30 March and the review document of 27 April did not address that assertion. Although it was at variance with the version of events put forward by the housing officer in the letter of 21 March, and Miss Rowley and Mr Taylor had indicated their assent to that version by confirming their acceptance on 23 March, the housing officer should have addressed the inconsistency and explained why she had decided to proceed on the basis of the facts as set out in the letter of 21 March.

The flaw in this submission is that it seeks to deny to the housing officer the right to take the acceptance of the facts set out in the letter of 21 March and its endorsement at face value. It seems to me that any implication from the account in the application form, that Miss Rowley and Mr Taylor had had no alternative but to vacate the accommodation at the behest of the landlord -- and such an implication could never have been a clear one -- was superseded when they gave their assent to the account proffered by the housing officer following the receipt of information from the landlord. I do not consider that it is now possible to invoke the vulnerability of the applicants, as a pregnant young woman and a reforming drug addict, so as to maintain that the housing officer was obliged to treat the signed acceptance of the asserted facts as something less than that. There is no question here of any manipulation or oppression on the part of the local housing authority. Thus, in my judgment, by the time the housing officer made her decision, there was no factual dispute to resolve or explain.

The decision letter of 30 March was not afflicted by any deficiency of reasoning. It explained that Miss Rowley and Mr Taylor had given up the tenancy without securing reasonable accommodation before moving to Rugby. It pointed out that by endorsing the letter of 21 March they were indicating their agreement with the account attributed to the landlord, namely that he had not given notice to quit but “they had said they were leaving”. Eventually, in the county court, Miss Rowley was to put the case in a different way and assert that “she had no alternative” but to leave the accommodation in Kent. But neither the housing officer who made the original decision nor the reviewer had to consider the matter on that basis, notwithstanding the repeated opportunities to advance it subsequent to 21 March. On the material that was before him, it simply cannot be said that the reviewer erred by not considering that there was a deficiency in the original decision and accordingly, the additional procedural safeguard provided by regulation 8(2) never came into play.

As for the second ground of appeal, which is to the effect that Miss Rowley ought not to have had her endorsement of the facts set out in the letter of 21 March held against her, I find nothing in this. The housing officer had fairly placed before Miss Rowley and Mr Taylor a version of the facts for them to agree, to dispute or to supplement. They unequivocally agreed it. In those circumstances it was not unfair for the housing officer or, later, the reviewer to proceed on the basis that it was accurate. It is significant that, at two stages, upon receipt of the letters of 21 March and 13 April, Miss Rowley and Mr Taylor declined opportunities to make further representations in writing.

It follows from what I have said that in my view the judge in the county court was correct to hold that neither the housing officer nor the reviewer had fallen into legal error, albeit that his judgment on the regulation 8(2) point was somewhat terse. It is appropriate to record that Mr Cottle accepts that if regulation 8(2) does not arise, he cannot complain about the refusal of a meeting or oral hearing.

For the reasons I have given I would dismiss this appeal.

I agree.

I also agree.