Bury Metropolitan Borough Council v Gibbons

This judgment is in seven parts namely:

This is an appeal by the Bury Metropolitan Borough Council against a decision of HHJ Tetlow in the Salford County Court made under section 204 of the Housing Act 1996, whereby the judge allowed an appeal against a review decision made by the council under section 202 of that Act.

In this judgment I shall use the following abbreviations: I shall refer to the Bury Metropolitan Borough Council as “the Council”. I shall refer to Mr John Gibbons, who was appellant in the county court and is respondent in this court, as “Mr Gibbons”. I shall refer to the Housing Act 1996 as “the 1996 Act”. I shall refer to the Homelessness Code of Guidance for Local Authorities, which was made under section 182 of the 1996 Act, as “the Code”. I shall refer to the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 as “the 1999 Regulations” or “the Regulations”.

Part 6 of the 1996 Act is entitled “Allocation of Housing Accommodation” and it sets out procedures to be complied with by housing authorities when they are allocating council housing. Part 7 of the 1996 Act is entitled “Homelessness” and sets out the duties which housing authorities must discharge in relation to persons in their areas who are homeless. Part 7 of the 1996 Act includes the following provisions:

“183 Application for assistance

(1)

The following provisions of this part apply where a person applies to a local housing authority for accommodation, or for assistance in obtaining accommodation, and the authority have reason to believe that he is or may be homeless or threatened with homelessness.

(2)

In this Part—

“applicant” means a person making such an application,

“assistance under this Part” means the benefit of any function under the following provisions of this Part relating to accommodation or assistance in obtaining accommodation, and

“eligible for assistance” means not excluded from such assistance by section 185 (person from abroad not eligible for housing assistance) or section 186 (asylum seekers and their dependants).

………

184 Inquiry into cases of homelessness or threatened homelessness

(1)

If the local authority have reason to believe that an applicant may be homeless or threatened with homelessness, they shall make such inquiries as are necessary to satisfy themselves –

(a)

whether he is eligible for assistance, and

(b)

if so, whether any duty, and if so what duty, is owed to him under the following provisions of this Part.

(2)

They may also make inquiries whether he has a local connection with the district of another local housing authority in England, Wales or Scotland.

(3)

On completing their inquiries the authority shall notify the applicant of their decision and, so far as any issue is decided against his interests, inform him of the reasons for their decision.

(4)

If the authority have notified or intend to notify another local housing authority under section 198 (referral of cases), they shall at the same time notify the applicant of that decision and inform him of the reasons for it.

(5)

A notice under subsection (3) or (4) shall also inform the applicant of his right to request a review of the decision and of the time within which such a request must be made (see section 202).

……….

188 Interim duty to accommodate in case of apparent priority need

(1)

If the local housing authority have reason to believe that an applicant may be homeless, eligible for assistance and have a priority need, they shall secure that accommodation is available for his occupation pending a decision as to the duty (if any) owed to him under the following provisions of this Part.

(2)

The duty under this section arises irrespective of any possibility of the referral of the applicant’s case to another local housing authority (see sections 198 to 200).

(3)

The duty ceases when the authority’s decision is notified to the applicant, even if the applicant requests a review of the decision (see section 202).

The authority may [secure] that accommodation is available for the applicant’s occupation pending a decision on a review.

189 Priority need for accommodation

(1)

The following have a priority need for accommodation—

……

(b)

a person with whom dependent children reside or might reasonably be expected to reside;

........

190 Duties to persons becoming homeless intentionally

(1)

This section applies where the local housing authority are satisfied that an applicant is homeless and is eligible for assistance but are also satisfied that he became homeless intentionally.

(2)

If the authority are satisfied that the applicant has a priority need, they shall –

(a)

secure that accommodation is available for his occupation for such period as they consider will give him a reasonable opportunity of securing accommodation for his occupation, and

(b)

provide him with [(or secure that he is provided with) advice and assistance] in any attempts he may make to secure that accommodation becomes available for his occupation.

(3)

If they are not satisfied that he has a priority need, they shall provide him with [(or secure that he is provided with) advice and assistance] in any attempts he may make to secure that accommodation becomes available for his occupation.

(4)

The applicant’s housing needs shall be assessed before advice and assistance is provided under subsection (2)(b) or (3).

(5)

The advice and assistance provided under subsection (2)(b) or (3) must include information about the likely availability in the authority’s district of types of accommodation appropriate to the applicant’s housing needs (including, in particular, the location and sources of such types of accommodation).

191 Becoming homeless intentionally

(1)

A person becomes homeless intentionally if he deliberately does or fails to do anything in consequence of which he ceases to occupy accommodation which is available for his occupation and which it would have been reasonable for him to continue to occupy.

(2)

For the purposes of subsection (1) an act or omission in good faith on the part of a person who was unaware of any relevant fact shall not be treated as deliberate.

…….

193 Duty to persons with priority need who are not homeless intentionally

(1)

This section applies where the local housing authority are satisfied that an applicant is homeless, eligible for assistance and has a priority need, and are not satisfied that he became homes intentionally.

(2)

Unless the authority refer the application to another local housing authority (see section 198), they shall secure that accommodation is available for occupation by the applicant.

(3)

The authority are subject to the duty under this section until it ceases by virtue of any of the following provisions of this section.

……….

195 Duties in case of threatened homelessness

(1)

This section applies where the local housing authority are satisfied that an applicant is threatened with homelessness and is eligible for assistance.

(2)

If the authority—

(a)

are satisfied that he has a priority need, and

(b)

are not satisfied that he became threatened with homelessness intentionally.

they shall take reasonable steps to secure that accommodation does not cease to be available for his occupation.

……….

(5)

If the authority –

(a)

are not satisfied that the applicant has a priority need, or

(b)

are satisfied that he has a priority need but are also satisfied that he became threatened with homelessness intentionally.

they shall provide him with (or secure that he is provided with) advice and assistance in any attempts he may make to secure that accommodation does not cease to be available for his occupation.

(6)

The applicant’s housing needs shall be assessed before advice and assistance is provided under subsection (5).

………..

196 Becoming threatened with homelessness intentionally

(1)

A person becomes threatened with homelessness intentionally if he deliberately does or fails to do anything the likely result of which is that he will be forced to leave accommodation which is available for his occupation and which it would have been reasonable for him to continue to occupy.

(2)

For the purposes of subsection (1) an act or omission in good faith on the part of a person who was unaware of any relevant fact shall not be treated as deliberate.”

Section 202 of the 1996 Act enables applicants under Part 7 of the Act to request reviews of decisions made in their cases by local housing authorities. Section 203 of the 1996 Act sets out the procedure to be followed upon such reviews. Section 204 of the 1996 Act provides that an applicant who has requested a review under section 202 may appeal to the county court if the applicant is dissatisfied with the decision which has been made on the review. Any such appeal must be on a point of law.

Regulation 8 of the 1996 Regulations provides as follows:

“8 Procedure on a review

(1)

The reviewer shall, subject to compliance with the provisions of regulation 9, consider—

(a)

any representations made under regulation 6 and, in a case falling within regulation 7, any responses to them; and

(b)

any representations made under paragraph (2) below.

(2)

If the reviewer considers that there is a deficiency or irregularity in the original decision, or in the manner in which it was made, but is minded nonetheless to make a decision which is against the interests of the applicant on one or more issues, the reviewer shall notify the applicant—

(a)

that the reviewer is so minded and the reasons why; and

(b)

that the applicant, or someone acting on his behalf, may make representations to the reviewer orally or in writing or both orally and in writing. ”

Chapter 2 of the Code includes the following paragraph:

“2.12

Advice on the following issues may help to prevent homelessness:

•

tenants’ rights and rights of occupation;

•

leaseholders’ rights and service charges;

•

what to do about harassment and illegal eviction;

•

how to deal with possession proceedings;

•

rights to benefits (e.g. housing benefit) including assistance with making claims as required;

•

current rent levels;

•

how to retrieve rent deposits;

•

rent and mortgage arrears;

•

how to manage debt;

•

grants available for housing repair and/or adaptation;

•

how to obtain accommodation in the private rented sector – e.g. details of landlords and letting agents within the district, including any accreditation schemes, and information on rent guarantee and deposit schemes;

•

how to apply for an allocation of accommodation through the social housing waiting list or choice-based lettings scheme;

•

how to apply to other social landlords for accommodation.

The advisory service might also include advocacy service, which may include providing legal representation for people facing the loss of their home.”

After these brief introductory remarks, I must now turn to the facts.

Mr Gibbons is aged 45. He has a daughter, Aimee, who was born on 10^th September 1992. Mr Gibbons has been the sole carer for Aimee since she was very young. Until August 2007 Mr Gibbons was in full time employment as a fork lift truck driver. At that time Mr Gibbons and his daughter lived at 14 Naseby Place, Prestwick, a property which Mr Gibbons owned subject to mortgage. Mr Gibbons had purchased that property in 2002.

In 2007 Mr Gibbons’ life started to fall apart. His mother died in the summer of 2006 and his father died in August 2007. In the interval between those two bereavements, Mr Gibbons spent time looking after his father. He also started drinking heavily. As a result of all these matters Mr Gibbons lost his job in August 2007. By this time he had fallen into arrears with his mortgage payments.

Mr Gibbons apparently did not apply for state benefits to cover his mortgage interest. He decided to sell his property so as to clear the mortgage debt. It appears that Mr Gibbons sold his home at an undervalue. Be that as it may, Mr Gibbons was left with a net sum of £23,395 after selling the property and paying off the mortgage. That sale was completed on 30^th November 2007.

Mr Gibbons and his daughter then moved into rented property at 5 Park View Court, Prestwich. The rent was £495 per month. Mr Gibbons’ only income during this period was child benefit. He remained out of work and was spending quite heavily on drink. As a result, the capital sum which he had received in November 2007 was steadily used up.

In June 2008 Mr Gibbons fell into arrears with his rent. On 27^th June 2008 the landlord’s agents gave him two months notice to vacate the property. The agents subsequently wrote to Mr Gibbons requiring him to vacate the property by 23^rd September 2008. Mr Gibbons apparently did not know that he was entitled to remain at 5 Park View Court until a possession order was made. He proceeded on the basis that he would have to leave by 23^rd September 2008.

On 9^th September 2008 Mr Gibbons made an application for council housing for himself and his daughter. Question 30 on the application form reads “tell us why you want to move?” The answer which Mr Gibbons put down to question 30 reads as follows:

“Living in a flat with my daughter paying £490 per month, cannot afford to pay due to low wage. I have to move out of the property by the 24.09.08, then me plus my daughter will then become homeless. I would be most grateful for your help on this matter.”

On 12^th September 2008 Mr Gibbons visited the Council’s offices and stated that he would soon become homeless.

On 17^th September 2008 Mr Gibbons and his daughter vacated 5 Park View Court. They moved into a caravan on land at 22 Farm Lane, Simister.

On 26^th September Mr Gibbons attended at the Council’s offices and said that he was homeless, although currently living in a caravan. The Council were not satisfied that Aimee was living with Mr Gibbons at that stage, so they did not treat him as a person in priority need.

On 22^nd December Mr Gibbons returned to the Council’s offices. A note made by the Council on that occasion records Mr Gibbons as stating that he had been living in a caravan but he was now being kicked out. The Council treated this as an application under the homelessness provisions in Part 7 of the 1996 Act. The Council arranged temporary accommodation for Mr Gibbons and his daughter. That temporary accommodation was provided at a place called “South View”.

The Council then proceeded to investigate what duties it owed to Mr Gibbons as a homeless person under Part 7 of the 1996 Act. The Council concluded its investigations in early February 2009. On 10^th February 2009 the Council issued its decision by a letter, which was wrongly dated 10^th January 2009. In that letter the Council officer, Ms Susan Fargher, stated that she had carefully considered the facts of the case and had decided that Mr Gibbons was eligible, homeless and had a priority need, but that he was intentionally homeless. The reason for her decision was as follows:

“The reason for this decision is that from 24^th September 2007 up until 24^th September 2008, you had accommodation that was available for you at 5 Park View, Prestwich. You had a legal right to occupy the above address and I am satisfied that it would have been reasonable for you to continue to occupy this property as this was your private rented tenancy with Michael Herwald & Co.

I am satisfied that you lost that accommodation through your deliberate action or omission in that:-

You left your private rent at 5 Park View, Prestwich due to affordability issues. However a financial assessment has shown that at the point you left this address, you had at least £7,048.72 in savings. The financial assessment has been based on the figures provided by yourself in the financial assessment sheets I sent to you, a copy of which is on your file.”

On the 24^th or 25^th February Bury Law Centre, on behalf of Mr Gibbons, applied for a review of that decision, pursuant to section 202 of the 1996 Act. The Council agreed to continue to provide temporary accommodation during the review process. So Mr Gibbons and his daughter remained at South View.

A review meeting took place on 20^th March 2009. For the purposes of that meeting, Bury Law Centre provided written submissions on behalf of Mr Gibbons. At that meeting Mr Gibbons was present, as was a representative of his lawyers from the Bury Law Centre. Following that meeting, on the 31^st March 2009 the reviewing officer of the Council, Mrs Clair Martin, sent what is described as a “minded to” letter to Mr Gibbons. This letter set out the conclusion which Mrs Martin had it in mind to reach, namely that Mr Gibbons was intentionally homeless. The principal reasons set out in that letter for Mrs Martin’s proposed conclusion were that Mr Gibbons had made himself intentionally homeless due to non-payment of rent and voluntarily terminating his tenancy of 5 Park View Court. Mrs Martin considered that Mr Gibbons had put himself in the position of being unable to pay rent because of his frivolous expenditure of the capital sum received following the sale of his previous property.

On 2^nd April 2009 Bury Law Centre asked for an extension of time up until the 9^th April for sending in responses to the “minded to” letter before the Council should reach its final decision. The Council granted that extension of time.

On the 8^th April 2009 at 11.39am Bury Law Centre sent a fax to the Council asking for a meeting with the Council before it reached a decision. Unfortunately, this letter, like a number of crucial documents in the case, has not been included in the appeal bundle. However, counsel read the relevant part of the letter out at dictation speed so that we could make a note of it. Towards the end of the letter Bury Law Centre requested “extension of the deadline so that we may attend a meeting with you and Mr Gibbons so that he may put forward his comments”.

By chance, Mr Gibbons called in to the Council’s offices on the same day, namely 8^th April 2009. He saw Ms Victoria Adams on that occasion. Ms Adams made a note of the meeting. Paragraph 4 of her note reads as follows:

“I discussed with Mr Gibbons at length the situation regarding accommodating him. I first reminded Mr Gibbons that he had been sent a minded to letter via the reviewing officer with regards to his homelessness decision and that the reviewing officer was minded to uphold the original decision which was that of intentionality. Mr Gibbons confirmed that he had seen the minded to letter but had no further information to add. I reminded Mr Gibbons that he had until tomorrow morning.”

On 9^th April, Mrs Martin, the reviewing officer, responded to the letter of Bury Law Centre dated 8^th April. She granted an extension of time until the 15^th April, but she made no comment on or response to the request for a meeting.

No meeting as requested by the Bury Law Centre took place. On the 16^th April 2009 Mrs Martin sent to Mr Gibbons a letter setting out her decision at the conclusion of the review under section 202 of the 1996 Act. Her decision was that Mr Gibbons had made himself intentionally homeless. Mrs Martin reached this decision because, she said, Mr Gibbons was homeless due to non-payment of rent and due to voluntarily terminating his tenancy of 5 Park View Court. Mrs Martin went on to set out the history of events in some detail and to state that the reason why Mr Gibbons was unable to pay the rent in the last part of the tenancy was because of his frivolous financial expenditure in earlier months.

Mr Gibbons was aggrieved by the review decision dated 16^th April. Accordingly, he brought the present proceedings in order to challenge that decision.

By a notice of appeal filed on 12^th May 2009 Mr Gibbons appealed to the county court against the review decision of the Council pursuant to section 204 of the 1996 Act. The grounds of Mr Gibbons appeal to the county court were, in essence, as follows. The Council misapplied the law which regulated its decision making powers. In particular the Council failed properly to apply section 191(2) of the 1996 Act. Secondly, the Council failed to take into account a number of relevant considerations. Thirdly, the Council took into account a number of irrelevant considerations. Fourthly, the Council failed to follow fair procedures, in that it did not hold a meeting at which Mr. Gibbons could make representations with the assistance of his lawyer from the Bury Law Centre, as had been requested by the Bury Law Centre.

HHJ Tetlow, who heard the appeal, delivered judgment on the 7^th August 2009. The judge allowed Mr Gibbons’ appeal and remitted the matter to the Council for further consideration.

I would summarise the judge’s reasoning as follows. In September 2008 Mr Gibbons made an application to the Council as a homeless person. The Council ought to have responded by giving advice as set out in paragraph 2.12 of the Code, but failed to do so. Mrs Martin, the Council officer who carried out the review in March and April 2009, ought to have taken that failure into account, but failed to do so. This is a serious omission, which merits remittal of the matter to the Council for reconsideration. Secondly, there was an error in the original decision, in that it was assumed that Mr Gibbons had £7,000 when he moved out of 5 Park View Court. That assumption was wrong. In fact he had no savings and thus would have been eligible for housing benefit, but he may not have been aware of the fact. Mrs Martin did not take this factor into account in her review, as required by section 191(2) of the 1996 Act. Thirdly, the Council ought to have held an oral hearing to which Bury Law Centre could send a representative. The failure to hold such a hearing was a serious procedural flaw. This flaw also necessitated that the matter be remitted to the Council for reconsideration. In relation to this ground, the judge gave two reasons why the Council should have held such a hearing. First, regulation 8(2) of the 1999 Regulations required that the reviewer should hold such a hearing. Secondly, the Council’s letter of 31^st March 2009 created a legitimate expectation that such a hearing would be held.

The Council now appeals to the Court of Appeal, essentially on the basis that each of HHJ Tetlow’s reasons for reversing the review decision was erroneous. The Council advances the following four grounds of appeal. First, the judge erred in law in holding that the application made by Mr Gibbons on 9^th September 2008 engaged the duties of the Council to provide assistance and advice under the homelessness provisions of Part 7 of the 1996 Act. Secondly, the judge erred in his approach to section 191(2) of the 1996 Act. Thirdly, the judge erred in law in finding that the original decision contained a deficiency or irregularity. Fourthly, the judge erred in law in finding that Mr Gibbons had a legitimate expectation that he would have a face-to-face interview. There is nominally a fifth ground of appeal but that is really an assertion that a recent House of Lords decision supports the Council’s contentions under ground one. I shall therefore address that matter when considering the first ground of appeal.

The first issue between the parties in relation to this ground of appeal is whether Mr Gibbons’ application form dated 9^th September 2008 triggered obligations of the Council under Part 7 of the 1996 Act. Mr Lindsay Johnson for the appellant Council submits that this form constituted an application under Part 6 of the 1996 Act. Therefore, it could not be treated as an application under Part 7. Mr Paul Whatley for Mr Gibbons submitted the opposite. He pointed out that most homeless applicants will not understand the difference between Parts 6 and 7 of the 1996 Act. Therefore the Council must look at the substance of what they write on the application form.

On this issue I prefer and accept the submission of Mr Whatley. Mr Gibbons’ answer to question 30 of the application form spells out expressly that he and his dependant daughter were about to become homeless and were seeking the Council’s assistance. When the Council received that application form, the Council clearly had reason to believe that Mr Gibbons and his daughter were threatened with homelessness. That, in my view, is sufficient to trigger the obligations of the Council under Part 7 of the 1996 Act. See the reasoning of Mr Roger Toulson QC in R v Northavon District Council, ex Parte Palmer (1994) 26 HLR 572. (This case subsequently went on appeal on other grounds which are not relevant for present purposes: see R v Northavon District Council, ex Parte Palmer (1995) 27 HLR 576.) Accordingly, in the present case, the Council’s duties under section 183 and 184 of the 1996 Act were triggered on 10^th September, that being the date of the receipt stamp on the application form.

It therefore follows that the Council ought to have provided advice to Mr Gibbons before he vacated 5 Park View Court. This should have included advice that Mr Gibbons was eligible for housing benefits and that Mr Gibbons was not obliged to vacate before his landlord had obtained an order for possession. See section 195 of the 1996 Act and paragraph 2.12 of the Code.

In the event the Council did not provide the advice which it ought to have given in September 2008. The next question which arises, therefore, is what the relevance of this omission is to the Council’s decision making process between February and April 2009. Mr Johnson submits that the Council’s omissions (if established) had no practical consequences. Mr Gibbons would have been evicted in any event from 5 Park View Court. Therefore the Council’s omissions in September 2008 were irrelevant to the issues which fell to be decided in early 2009. Mr Whatley on the other hand contends that if Mr Gibbons had received proper advice in September 2008, he would have obtained housing benefit and he might have been permitted to stay on at 5 Park View Court. Therefore, the Council’s failure to give advice was a relevant factor, which the Council should subsequently have taken into account, as held by the judge. The review decision should not be criticised on this basis. See Holmes-Moorhouse v Richmond Upon Thames London Borough Council [2009] UKHL 7; [2009] 1 WLR 413 at paragraphs 49 to 51 per Lord Neuberger.

This is not an easy question to decide, but ultimately I have come to the same conclusion as the judge. If a person informs the local housing department that he is threatened with homelessness because he has received notice to quit for non-payment of rent, and if the Council does not give appropriate advice, it cannot automatically be assumed that this does not matter. In the present case, the Council’s omissions at a crucial time, namely when Mr Gibbons was about to move out of 5 Park View Court and become homeless, were relevant to the question whether Mr Gibbons became homeless intentionally. This was a matter of substance which, in accordance with the guidance in Holmes-Moorhouse at paragraphs 49 to 51, the reviewing officer should have taken into account.

I would therefore uphold this limb of the judge’s reasoning and dismiss the first ground of appeal.

The first point to note is that the second limb of the judge’s reasoning (as summarised in Part 3 above) played only a small part in the final decision. It was by no means critical to the outcome.

Mrs Martin, in her review decision, based her finding of intentional homelessness on two grounds: first, non-payment of rent; secondly, voluntarily terminating the tenancy. In the course of her decision Mrs Martin does not make any reference to the fact that Mr Gibbons could have claimed housing benefit to cover the rent, but did not do so. She does not address the question whether Mr Gibbons was ignorant of his entitlement. Nor does she consider whether this was “an act or omission in good faith on the part of a person who was unaware of any relevant fact” within section 191(2) of the 1996 Act.

Mr Johnson points out that the judge does not make a firm finding as to whether Mr Gibbons was in fact ignorant of his entitlement to housing benefit. Mr Johnson also submits that Mr Gibbons was not acting in good faith, because he squandered his savings on drink rather than conserving his savings in order to pay rent: see Ugiagbe v Southwark LBC [2009] EWCA Civ 31; [2009] HLR 35 at paragraphs 24 to 29. Mr Johnson also argues that even if one cause of homelessness falls within section 191(2), it is sufficient if another cause does not: see O’Connor v Kensington and Chelsea RLBC [2004] EWCA Civ 394; [2004] HLR 37. The difficulty with Mr Johnson’s argument is that the reviewing officer did not address these questions at all in her decision. Furthermore, the judge did not finally decide these questions against the Council. He merely said that these questions required to be considered when the matter was remitted (his primary grounds for remission being found elsewhere in the judgment). Mr Whatley in his submissions goes to the opposite extreme. He submits that section 191(2) is definitely engaged. Mr Gibbons was ignorant of all relevant facts. He acted in good faith. Therefore the reviewing officer should have been driven to conclude that Mr Gibbons was not intentionally homeless. The difficulty with this approach is that Mr Whatley goes beyond the findings of fact made by the judge.

I have come to the conclusion that the judge’s moderate approach to the section 191 issues was correct. I would therefore reject the second ground of appeal.

The third ground of appeal is an attack upon the first of the two reasons which the judge gave for his decision that an oral hearing was required. The issue here is whether regulation 8(2) of the 1999 Regulations required the reviewing officer to hold such a hearing.

The Council’s original decision, dated 10^th February 2009, rested on the following basis. When Mr Gibbons moved out of 5 Park View Court he had savings of £7,485. Therefore, he became intentionally homeless because he did not use this money to pay the rent which was due.

In the course of her review, the reviewing officer came to the conclusion that the basis for the original decision was wrong. When Mr Gibbons moved out of 5 Park View Court he did not have £7,485 or indeed any funds available to pay the rent. Mr Gibbons had no money available to pay the rent because of his “frivolous financial expenditure” in earlier months.

The judge took the view that this change in the factual basis of decision represented a “deficiency or irregularity” in the original decision within the meaning of regulation 8(2) of the Regulations. Mr Whatley supports that conclusion, but Mr Johnson submits that it is wrong.

The meaning of the phrase “deficiency or irregularity” has been the subject of judicial exegesis in Hall v Wandsworth LBC, Carter v Wandsworth LBC [2004] EWCA Civ 1740; [2005] HLR 23. In relation to the word “deficiency”, Carnwath LJ (with whom Sir William Aldous and Waller LJ agreed) said this:

“29 However, I would put it more broadly. The word “deficiency” does not have any particular legal connotation. It simply means “something lacking”. There is nothing in the words of the rule to limit it to failings which would give grounds for legal challenge. If that were the intention, one would have expected it to have been stated expressly. Furthermore, since the judgment is that of the reviewing officer, who is unlikely to be a lawyer, it would be surprising if the criterion was one depending solely on legal judgment. On the other hand, the “something lacking” must be of sufficient importance to the fairness of the procedure to justify an extra procedural safeguard. Whether that is so involves an exercise of “evaluative judgment” (see Begum above, at p.466B, per Lord Walker), on which the officer’s conclusion will only be challengeable on Wednesbury grounds.

30 To summarise, the reviewing officer should treat reg. 8(2) as applicable, not merely when he finds some significant legal or procedural error in the decision, but whenever (looking at the matter broadly and untechnically) he considers that an important aspect of the case was either not addressed, or not addressed adequately, by the original decision-maker. In such a case, if he intends to confirm the decision, he must give notice of the grounds on which he intends to confirm the decision, he must give notice of the grounds on which he intends to do so, and provide an opportunity for written and (if requested) oral representations.”

I agree with that exegesis and do not seek to improve upon it. Where the reviewer rejects the factual basis of the original decision and proposes to substitute a different factual basis leading to the same conclusion, it seems to me that the review has identified a “deficiency” within the meaning of regulation 8(2).

In the instant case, the question then arises whether the effect of regulation 8(2) is that Mr Gibbons was entitled to a full hearing before the reviewing officer, with both himself and his lawyer present. Mr Johnson submits that the requirements of regulation (2) may be satisfied if oral submissions are made by telephone. For my part, I can see that on some occasions a telephone call may suffice for the purposes of regulation 8(2). In the present case, however, after considering the “minded to” letter dated 31^st March 2009 (setting out the proposed new factual basis) Bury Law Centre requested a meeting at which they and Mr Gibbons would be present. See the letter from Bury Law Centre to the Council dated 8^th April 2009. The Council responded on 9^th April 2009, granting an extension of time, but saying nothing about the request for a meeting. It was clear that without legal assistance Mr Gibbons did not have the ability to make any relevant submissions or comments concerning the “minded to” letter dated 31^st March 2009. Mr Gibbons made this plain when he attended the housing department on 8^th April 2009: see paragraph 4 of the note made by Ms Victoria Adams on that occasion.

In the circumstances of this case it seems to me that the only way the Council could receive any relevant oral representations on behalf of Mr Gibbons was by acceding to Bury Law Centre’s request for a meeting. I have therefore come to the conclusion that the judge did not err in his interpretation of regulation 8(2) or his application of that regulation to the facts of this case.

I would therefore dismiss the third ground of appeal.

The fourth ground of appeal is an attack upon the second of the two reasons which the judge gave for his decision that an oral hearing was required. In the second half of paragraph 42 of his judgment, the judge said:

“Even if I am wrong, then by writing a “minded to” letter offering the opportunity to make representations, then the recipient has a legitimate expectation that the opportunity will be given. It manifestly was not in my judgement. Mrs Martin knew Bury Law Centre wanted a meeting yet she never responded on that point, either to agree that or to say she would only listen by telephone. That should have been dealt with prior to any deadline passing. The fact that Mr Gibbons on 8^th April 2009 said he had nothing further to say did not resolve the point (a) because it did not apparently operate on Mrs Martin’s mind and (b) it was Bury Law Centre who wanted the meeting and that needed to be dealt with; that request was not bypassed by whatever the appellant may have said.”

It can be seen that grounds three and four of the appeal are closely linked.

The Council’s “minded to” letter dated 31^st March 2009 included the following passages:

“Before a local authority can make a decision on your case I have to be satisfied that any decision reached is balanced and that you have had an opportunity to rebut or comment on any evidence or interim conclusion that I may have reached on your application in making inquiries into the tests listed above.

………

Before reaching my final decision I am giving you an opportunity to comment on and or to refute the evidence which has led me to reach this provisional conclusion for the reasons given above.

Please write to me by Monday 6^th April 2009 so that I can take into account any comments or further information that you may wish me to consider before I reach my final decision on your homelessness application.

Alternatively, you can telephone me on the above number to discuss this letter.”

I agree with the Council’s fourth ground of appeal to this extent. If regulation 8(2) did not apply in the circumstances of this case, nothing which the Council wrote in this letter would have created either a legitimate expectation in the mind of Mr Gibbons or an obligation on the part of the Council that there would be a full oral hearing. However, for the reasons set out in Part 6 above, this is a case to which regulation 8(2) does apply.

I agree with the judge’s reasoning that, following the despatch of the “minded to” letter dated 31^st March, it became apparent that the only way of receiving the relevant oral submissions from or on behalf of Mr Gibbons was by holding a meeting as requested by Bury Law Centre.

Let me now draw the threads together. If regulation 8(2) was inapplicable, then the fourth ground of appeal would not succeed. However, regulation 8(2) does apply. So ground four, in effect, reinforces ground three.

The ultimate decision in this appeal must be that the Council fails in its challenges to the judge’s decision under section 204 of the 1996 Act. This matter must be remitted to the Council for a further review decision, essentially for the reasons which were given by HHJ Tetlow in the Salford County Court.

I agree.

I agree.