Robibul Alam Mitu v London Borough of Camden

Part VII of the Housing Act 1996 (“the Act”) imposes duties on local housing authorities as regards the homeless. The nature of the duty varies according to the category or categories into which a homeless person falls.

If a person is intentionally homeless but does not have a priority need the duty is a duty to provide advice and assistance: section 190 (3);

If a person is intentionally homeless and has a priority need the duty is a duty to provide advice and assistance and also to provide accommodation for a period to give him a reasonable opportunity to find accommodation: section 190 (2);

If a person is not intentionally homeless and has no priority need, the duty is a duty to provide advice and assistance: section 192 (2). The duty is thus the same duty as arises where a person is intentionally homeless but does not have a priority need; but in this category of case that duty is coupled with a discretionary power to secure accommodation for him: section 192 (3);

If a person is not intentionally homeless and has a priority need the duty is a duty to secure accommodation for him, unless the application is referred to another housing authority: section 193 (2).

In the summer of 2010 Mr Mitu applied to the London Borough of Camden (“Camden”) under Part VII of the Act. He had become homeless as a result of a domestic dispute. He also said that he suffered from health problems with the result that he had a priority need. He suffered from epilepsy and had a history of anxiety, depression and anger management issues. He was taking medication relating to the epilepsy. His medical condition was assessed by Dr Jackson on the basis of Mr Mitu’s patient notes kept by his GP but without having seen Mr Mitu. Ms Brown of Camden considered his application and on 13 September 2010 determined that Mr Mitu was intentionally homeless; and did not have a priority need. The letter concluded by stating:

Mr Mitu asked for a review of this decision, as he was entitled to do under section 202 of the Act. He made written representations to Camden; which were supplemented by further representations made on his behalf by solicitors. Those representations asserted that Mr Mitu was not intentionally homeless and had a priority need. They asserted that Ms Brown had applied the wrong legal test in deciding whether Mr Mitu had a priority need. They also said:

Mr Bond of Camden carried out the review and gave his decision on 9 November 2010. The result of the review was that Mr Bond did not uphold the decision that Mr Mitu was intentionally homeless; but confirmed the decision that he did not have a priority need. On the question of priority need Mr Bond first examined Ms Brown’s original decision. He said that he was “satisfied that this was a reasonable decision, arrived at after following proper consideration of Mr Mitu’s circumstances”. Nevertheless he went on to consider the evidence for himself. His consideration included the following:

Over the next two pages Mr Bond assessed Mr Mitu’s medical condition for himself, and came to the conclusion that he had no priority need. He said:

The review letter concluded:

The consequence of this decision was that Camden had the same duty to provide advice and assistance that arose when the initial decision was made. But Camden also had a discretionary power to secure accommodation for him. Mr Bond considered whether this power should be exercised and decided that it should not. In the case of Ms Brown’s original decision this power did not arise, because of her finding that Mr Mitu was intentionally homeless. In crude terms, the effect of Mr Bond’s review was that Mr Mitu had an upgraded status, but one that did not affect the Council’s duties.

Mr Mitu appealed to the county court on the ground that Mr Bond had not followed the correct procedure in reaching his decision on the review. The procedure applicable to the review is governed by section 203 of the Act and by regulation 8 of The Allocation of Housing and Homelessness (Review Procedures) Regulations 1999. Section 203 (4) says:

Regulation 8 (2) says:

Mr Russell, appearing then as now for Mr Mitu, argued that Mr Bond should have given a “minded to find” notice under regulation 8 (2); or at the very least have explained why no such notice was necessary. HHJ Baucher disagreed; and dismissed the appeal. With the permission of Etherton LJ Mr Mitu appeals again.

Regulation 8 (2) applies where the reviewer considers that there is a deficiency or irregularity in the original decision. Before embarking on a discussion of what amounts to a deficiency it is, I think, important to be clear about what “the original decision” is. The local housing authority’s duty to make decisions in homelessness cases is contained in section 184 of the Act. This provides, so far as relevant:

Section 184 (1) contemplates two decisions. The first is whether the applicant is eligible for assistance. The second is whether any duty, and if so what duty, is owed to him under the Act. The second decision is thus concerned with the duty owed by the local housing authority; not whether the applicant is intentionally homeless or has a priority need. These questions are, in the terminology of section 184 (3), “issues” which need to be determined on the way to the ultimate decision. Nor is the decision concerned with the local housing authority’s powers (as opposed to duties).

Thus in the present case the initial decision under section 184 was a decision that Camden had a duty to provide advice and assistance. Section 203 (4) distinguishes between a “decision” and an “issue”. Regulation 8 (2) also speaks of a deficiency in a “decision” and distinguishes that from “issues” on which the reviewer is minded to find against the applicant. Thus a thread running through both the primary legislation and the regulations is a clear and consistent distinction between the decision on the one hand, and issues on the other. Mr Russell argues that it is the decision that is subject to review, and that it is wrong to split a decision into discrete issues in order to consider whether there is a deficiency in the decision. In my judgment he is right.

The cases stress (as one might expect) that the words of the regulation must be interpreted in the light of their purpose. That purpose was described by Carnwath LJ in Hall v Wandsworth LBC [2004] EWCA Civ 1740 [2005] HLR 23 (§ 26):

In Banks v Kingston-Upon-Thames RLBC[2008] EWCA Civ 1443 [2009] HLR 29 Lawrence Collins LJ said (§ 71):

Carnwath LJ’s explanation of the meaning of “deficiency” in Hall v Wandsworth LBC is the authoritative explanation. He said (§ 29):

This explanation has since been followed and applied many times: e.g. Lambeth LBC v Johnston[2008] EWCA Civ 690 [2009] HLR 10; Banks v Kingston-Upon-Thames RLBC; Makisi v Birmingham City Council[2011] EWCA Civ 355 [2011] HLR 27.

In Bury MBC v Gibbons[2010] EWCA Civ 327 [2010] HLR 33 Jackson LJ (with whom Sedley and Jacob LJJ agreed) said (§ 45):

However, as noted, Carnwath LJ said in Hall v Wandsworth LBC that the “something lacking” must be of sufficient importance to the fairness of the procedure to justify an extra procedural safeguard. How one judges the relative importance of a flaw was explained in Banks v Kingston-Upon-Thames RLBC. Lawrence Collins LJ said (§ 72):

Banks v Kingston-Upon-Thames RLBC was a case in which this court held that regulation 8 (2) should be interpreted so as to cover events that took place after the original decision which falsified the basis of that decision. The application of a purposive interpretation meant that the literal wording of the regulation could be stretched in the applicant’s favour. I do not see that decision as a warrant for deciding that if the case falls within the literal wording of the regulation, the wording of the regulation which is designed to protect the applicant should be interpreted more narrowly to his disadvantage.

In written submissions (although not in oral argument) some reliance was placed on what Lord Neuberger of Abbotsbury said (obiter) in Holmes-Moorhouse v Richmond-Upon-Thames LBC [2009] UKHL 7[2009] 1 WLR 413, 428. Lord Neuberger (with whom Lords Hoffmann and Walker of Gestingthorpe agreed) said (§ 51):

In the present case the question is not (or not simply) whether Ms Brown’s original decision can stand or even whether Mr Bond’s ultimate conclusion can stand. It is whether, on the way to reaching his ultimate conclusion, Mr Bond ought to have given a “minded to find” notice under regulation 8 (2). This is a procedural rather than a substantive question. It is not an issue that Lord Neuberger addressed (because it did not arise in Holmes-Moorhouse v Richmond-Upon-Thames LBC).

In Lambeth LBC v Johnston Rimer LJ said (§ 51):

Rimer LJ went on to say (§ 52) that a “minded to find” notice may be more valuable in some cases than in others. On the facts of that case the applicant knew what was in issue and had in fact had the chance to make representations on those issues. Nevertheless this court held that the reviewing officer had a duty to give a “minded to find” notice. As Rimer LJ explained (§ 53):

In her very attractive argument Ms Godfrey, appearing for Camden, submitted that a flaw in a decision would only amount to a “deficiency” if (a) it was a relevant flaw, in the sense that it was a flaw in the reasoning on an issue on which the reviewing officer was minded to find against the applicant despite the existence of that flaw; and (b) it was a sufficiently serious flaw to justify the invocation of the additional procedural safeguard. Thus a flaw in the reasoning of the original decision on an issue on which the reviewing officer was minded to find in the applicant’s favour would not count as a “deficiency”.

The first of these submissions entails writing words into the regulation that are not there. This particular appeal to a purposive construction, in my judgment, narrows the purpose of the regulation as explained by Carnwath LJ (see §14 above). It also narrows Carnwath LJ’s authoritative explanation of what a “deficiency” means (see § 16 above). The second of these submissions does not take into account Lawrence Collins LJ’s explanation of how one is to approach the question when the additional procedural safeguard is justified (see §19 above). In the case of a regulation which is plainly intended to give protection to an applicant who is (or is likely to be) homeless, I see no warrant for excluding from the ambit of the regulation cases which fall within its literal words.

If one is looking for an analogy, it seems to me that a proper analogy is an application for permission to appeal to this court. The Court will consider the application on paper. If permission is refused then in almost all cases the appellant is entitled to renew his application orally. In the case of a review under section 202 the “minded to find” letter gives the applicant one last chance to persuade the reviewing officer not to confirm the decision. I do not consider that the applicant should be deprived of that chance because the reviewing officer thinks that further representations will make no difference. That, in my judgment, would be to prejudge the very issue that further representations might be expected to address.

In the present case Mr Bond disagreed with Ms Brown’s conclusion on the question whether Mr Mitu was intentionally homeless. Nevertheless he confirmed the decision that Camden’s duty was limited to providing advice and assistance, because he considered that her decision that Mr Mitu did not have a priority need was correct. Thus he confirmed the decision, but decided an issue against Mr Mitu’s interest. At first blush the question whether Mr Mitu was intentionally homeless seems to me an “important aspect of the case” and the fact that Mr Bond disagreed with Ms Brown seems to me to show that he must have considered that her decision did not address this question adequately. It was not a reliable consideration of the material issues. Looking at the matter broadly and untechnically, it seems to me that if the reviewing officer considers that the original decision maker was wrong on an important aspect of the case, then he has identified a deficiency in the original decision. To use Carnwath LJ’s phraseology, he confirmed the decision despite finding that there was a deficiency in the original decision. To use Lawrence Collins LJ’s formulation, he confirmed Ms Brown’s decision on different grounds. He should therefore have given a “minded to find” notice under regulation 8 (2). To hold otherwise means that the reviewing officer has the power to decide, in effect, that nothing the applicant can say will cause him to change his mind on the issue on which he has found against the applicant. This would give him the very dispensing power that Rimer LJ said he did not have.

In his representations Mr Mitu, through his solicitors, had called into question the reliability of Dr Jackson’s assessment. Mr Bond nevertheless concluded that Dr Jackson was reliable. Further representations on that question would have given Mr Mitu a chance to persuade him that he was wrong. In addition the fact is that in the present case Mr Bond considered whether Camden should exercise its discretionary power to secure accommodation for Mr Mitu; and decided that it should not. Whether or not he was legally obliged to consider that question, if Mr Mitu had had advance notice that he was minded to reach that decision, he would have had the opportunity to persuade Mr Bond that the discretion should have been exercised in his favour.

I would allow the appeal.

I agree.

I am grateful to Lord Justice Lewison for setting out the material in this appeal. I agree with him that this appeal should be allowed, and in particular that the determinative factor is that the deficiency or irregularity identified by the reviewer in respect of the issue of intentional homelessness meant that, if he was minded, as he was, to uphold the original decision in finding that Mr Mitu was not a priority case, his ultimate decision on review would be that Mr Mitu was owed a section 192(2) duty, coupled as it was with a section 192(3) discretion, rather than a stand-alone section 190(3) duty. The effect of the reviewer’s way of looking at Mr Mitu’s application was that there was not only an inadequacy in dealing with the question of intentional homelessness but also and in any event an inadequacy in giving consideration to the question of Camden’s discretionary power under section 192(3). In such circumstances, the reviewer was obliged by regulation 8(2) to give Mr Mitu notice of what he was minded to decide and why, and to afford Mr Mitu an opportunity to make further representations, oral or in writing. It is ultimately clear in the light of Lewison LJ’s analysis that, even though the content of the section 192(2) duty is the same as the content of the section 190(2) duty, the fact that the former duty, unlike the latter duty, is coupled with a discretionary power to secure accommodation for the applicant entails that the statutory notice and the right to make further representations in the knowledge of what the reviewer is minded to decide are valuable rights which, on a purposive construction of the regulation, fairness to the applicant requires him to be afforded.

I add a few observations of my own, both because we are differing from the judge, and also because the process of reasoning which leads me to that conclusion is not in all respects identical to that of Lewison LJ.

Where, with respect, I differ from Lewison LJ is that I would regard the jurisprudence of this court as teaching that the regulation is to be interpreted purposefully and not literally, and that in that connection it requires something more than the mere finding of any deficiency or irregularity: what is needed is the finding of a deficiency or irregularity of sufficient importance to the fairness of the procedure to justify an extra procedural safeguard. That involves the reviewer both in finding an inadequacy in the original decision and in an evaluative judgment that the inadequacy is material to the fairness of the procedure. It seems to me that this is the result of the decisions in this court in Hall v. Wandsworth LBC and Banks v. Kingston-Upon-Thames RLBC.

Thus in Hall v. Wandsworth LBC Carnwath LJ emphasised that what was needed was that –

That language was picked up and again emphasised by Lawrence Collins LJ in Banks v. Kingston-Upon Thames RLBC when he said:

That requirement of “sufficient importance” is one that the reviewer himself must be able to evaluate. In the present case there is no sign or any evidence that the reviewer did consider for himself at all the regulation 8(2) question of whether he ought to give the statutory notice. It is however plain that, once the reviewer was minded to find that Mr Mitu’s homelessness was not intentional, then, even if he was minded to confirm the finding that he was not in priority need, he had to consider the section 92(3) power to secure accommodation for Mr Mitu. He did consider that (see at para 5 above), but without the aid of any further representations that Mr Mitu might have been able to provide, with particular attention to that discretion, which, if the reviewer had given notice of his provisional decision and its reasons, it would have been obvious to Mr Mitu or his advisors to address.

A question arises as to how the decision in this court in Lambeth LBC v. Johnston fits into the jurisprudence. That was decided in the interval between Hall and Banks. It was a more complicated case where Lambeth’s review decision had already been quashed once as Wednesbury unreasonable and what was at issue was a second review which had also upheld the original decision, viz that Mr Johnston was not a vulnerable person in priority need. However, the original decision was flawed by Lambeth’s failure to make any enquiries during the lengthy period between Mr Johnson’s interview (in October 2004) and the decision (in November 2005), and a fortiori where the first view of the matter following interview was that Mr Johnston was in priority need. Such enquiries would have revealed, on the basis of medical evidence, that Mr Johnston was not only an alcoholic but was now suffering from drug addiction and severe depression. Even so, these matters were known about and addressed in the representations made to the reviewing officer by the time of the second review. For that reason it was submitted on behalf of Lambeth that the flaw in the original decision did not matter: and the second reviewer made a witness statement to the effect that she had considered and rejected the need to send a “minded to” notice on that ground. In the county court the recorder allowed Mr Johnston’s appeal. He said that he was not persuaded that the sending of a “minded to” notice was otiose or had been effectively addressed in correspondence (at para 31).

Lambeth’s appeal to this court was dismissed. Rimer LJ said that Lambeth’s submissions were compelling but ultimately failed. It was not in dispute that the original decision was flawed. But it was submitted, on the basis of the second reviewer’s evidence, that consideration had been given as to the sending of a notice and that her decision in her discretion not to do so could not be upset. However, it was plain that the statute did not provide for a purely subjective discretion in the reviewer but for a consideration of whether there had been a flaw which could be challenged on the usual public law grounds. I refer to the passages from Rimer LJ’s judgment cited by Lewison LJ at paras 23/24 above, and to the language in which Rimer LJ had rejected the “discretionary option” which he regarded as being contended for. Rimer LJ therefore concluded:

Thus in the context of Hall and Banks I would understand the judgment of Rimer LJ as addressing the facts and findings of that case. The submission that the reviewer had a subjective discretion whether or not to send a notice, depending on whether it seemed to her that further submissions would be of any benefit to the applicant, could not succeed. Moreover, the recorder in the county court, with this court’s agreement, found that, despite the attractive submissions as to the usefulness of further representations, that was a case where further representations were not rendered otiose, or, as Rimer LJ said, “the facts required” the giving of the statutory notice. In circumstances where it is plain that the flaw in the original decision was unarguably material, but what was in effect being submitted was that the subsequent representations had necessarily exhausted what could usefully be said on the applicant’s behalf, the decision is wholly understandable. However I do not regard Lambeth as undermining the teaching of Hall and Banks that, giving to regulation 8(2) a purposive construction, it is not simply any flaw in an original decision which triggers the need for a notice and reasons, but what might be described as a material or relevant flaw in the sense of being of sufficient importance to the fairness of the procedure to justify an extra procedural safeguard.

If, therefore, in the present case, it could have made no difference to Mr Mitu whether he failed on the ground of intentional homelessness or on the ground of not being in priority need, I would have considered that the flaw identified in the original decision’s conclusion about the former issue could not have mattered, since the reviewer decided that issue entirely in Mr Mitu’s favour. As it is, however, the flaw did matter, and I agree that this appeal should be allowed.