Maswaku v Westminster City Council

This case is mainly about disputed compliance with the information and notification duties of a local housing authority under Part VII (“Homelessness”) of the Housing Act 1996 (the 1996 Act). It arises in the context of the refusal of an offer made by an authority of alternative temporary accommodation, which they considered to be suitable, to a person already housed by the authority in temporary accommodation as a homeless person. Points also arise on the interpretation and application of the regulations concerning representations on the review and the conduct of the review, which was requested when, on the refusal of the offer of accommodation, the authority decided that they were discharged from their relevant housing duty under the 1996 Act.

The appeal is from an order of HHJ Knight QC dated 24 March 2011. He dismissed an appeal to the County Court under s. 204 of the 1996 Act by Ms Maswaku (the appellant) from the decision by the Principal Reviews Officer upholding the original decisions of the Westminster City Council (the Council) (a) that the offer of alternative temporary accommodation to the appellant was suitable and, that offer having been refused, (b) that the Council had discharged their housing duty towards the appellant under s.193 of the 1996 Act.

The essence of the appellant’s case is that the Council’s offer was not accompanied by the requisite information about the possible consequence of refusing the offer; that the Council have not lawfully discharged their housing duty towards her under the 1996 Act; that the correct position about representations and the procedure on the review was not notified by the Council to the appellant; that the reviewer wrongly failed to find and address a deficiency in the original decision in its treatment of the issue of the appellant’s travelling times; that the review decision should be quashed; and that, if the Council wished to make an offer of alternative temporary accommodation to the appellant, they must start all over again.

On 13 July 2011 Patten LJ granted permission for a second appeal limited to two grounds involving, the appellant asserted, important general points of principle or practice.

On 11 December 2006 the appellant applied to the Council under Part VII of the 1996 Act for accommodation as a homeless person. In their decision under s.184 the Council decided that she was homeless and eligible for assistance; that she had a priority need; and that she did not become homeless intentionally. On 5 January 2007 the Council provided the appellant and her children with temporary accommodation at 49a Trevelyan Road, London E15. She signed an agreement for a non-secure weekly tenancy on 29 January 2007.

By a letter dated 14 September 2010 the Council offered the appellant alternative temporary accommodation at 80 Dunkeld Road, Dagenham RM8, which the Council considered suitable. The offer letter purported to inform the appellant of “the possible consequence of refusal” in the following way:-

“If you refuse this offer

By giving you a suitable temporary home we have discharged our housing duty. Under current circumstances, we are not required to offer you anywhere else to live. So if you refuse our offer, you will have to find you own accommodation unless you successfully challenge our decision (see below)…”

The letter also stated that:-

“If you accept this property you must vacate your present accommodation and hand the keys to AJ Bush on the day you move to your new home….”

On 29 September 2010 the appellant refused the offer on the ground that the alternative accommodation would be too far away to suit her situation. She had enrolled on a four year accountancy course at Hackney College, which was too far from Dagenham for her to travel on a daily basis by public transport and get her children to and from Maryland School.

By letter dated 29 September the Council notified the appellant that, by offering a suitable temporary home, they had discharged their duty under s. 193(5) of the 1996 Act. They said that they still believed that the Dagenham accommodation was suitable for her needs. As for the travelling time objection to the Dagenham accommodation, they said that the Transport for London website confirmed that the distance involved equated to less than six miles by road and an average journey time of less than half an hour. That would not prevent the appellant from attending her college course, though it might be necessary to allow more time in morning preparations. The letter also notified the appellant of her right to request a review of the decision and to make representations. It stated:

“If you disagree with this decision

You have the right to ask us to review our decision that our housing duty has ended. You may tell us why you think we are wrong and give us new information to support your case. If you wish, you may get someone else to put your case forward on your behalf.”

On 6 October 2010 the Council gave the appellant notice to quit her current accommodation.

On 15 October 2010 a firm of solicitors, Gillian Radford & Co, wrote to the Council requesting a review of the decision in the letter of 29 September. They said that they were advising and assisting the appellant under the Legal Help Scheme in connection with housing matters: “We confirm that we are acting for our client in regards to the review.” They enclosed a form of authority for the Council to release information to them. They asked for a copy of the appellant’s housing file and for a reasonable time to make further representations following receipt of the file.

The solicitors’ letter also summarised the appellant’s instructions as to why the Dagenham accommodation was unsuitable for her needs. The principal objections were the longer travelling time by bus to Hackney College, and the problems the longer distance would create for getting her children to school in the mornings on the way to college and back from school in the afternoon/evening on the way home from college.

On 3 November 2010 the Council notified the solicitors about representations on the review. The letter said:-

“If you wish to add to your client’s case please provide your representations within 14 days of this letter.

At this stage we do not plan to interview your client but if it becomes necessary, we will inform you in writing.”

In a letter dated 11 November 2010 the solicitors made the appellant’s final representations on the review. They submitted further objections based on distance and travelling time, saying that the Council’s assessment of the travel time (six miles from her current address and a thirty minute journey by road) was not relevant to the appellant’s circumstances, as she had no access to a car and had to rely on the bus. That affected the earlier time that she and the children would have to get up in the morning to get to school and college in time.

On 10 December 2010 the Principal Reviews Officer (Ms Christine Obayi) wrote to the appellant’s solicitors informing them of the outcome of the review. Her decision was that the offer of temporary accommodation at Dagenham was suitable for the appellant and that the Council’s duty towards her had ended, because, although she had been informed by the Council of the possible consequences of refusal, she refused an offer of suitable accommodation.

Having considered all of the information on the file, the reviewer did not consider that there was any deficiency or irregularity in the original decision, or in the manner in which it was made and that accordingly regulation 8(2) was not engaged. She was satisfied that adequate enquiries were made and that the original decision maker did not fail to take into account any relevant matters, and made the decision in the light of all the relevant available facts. She did not believe that the decision involved any mistake on a point of law, or was contrary to the legislation and said that it was not Wednesbury unreasonable. She added that she had considered the representations made by the solicitors in various letters, the representations that the appellant had made in support of her case and all the other information on the appellant’s housing file. On the issue of travel time the reviewer was satisfied that the Dagenham accommodation was within reasonable travelling distance by bus.

On 23 December 2010 the appellant lodged an appeal to the County Court under s.204. The appeal was dismissed. The issues on this appeal are whether there was an error of law in the original decision of the Council and whether the decision to dismiss the appeal was wrong in law.

Section 193 of the 1996 Act, which provides for a local housing authority’s duty to house a person whom they are satisfied is homeless, is relevant to the refusal of the offer. It states that:-

“(5)

The local housing authority shall cease to be subject to the duty under this section if the applicant, having been informed by the authority of the possible consequence of refusal and of his right to request a review of the suitability of the accommodation, refuses an offer of accommodation which the authority are satisfied is suitable for him and the authority notify him that they regard themselves as having discharged their duty under this section.”

There is a similar provision in relation to the refusal of a final offer of accommodation under Part VI: see s.193(7).

Under s.193(9) a person who ceases to be owed the duty under s. 193 may make a fresh application to the authority for accommodation or assistance in obtaining accommodation.

With regard to the appellant’s right to request a review of the Council’s decision under s.202(1) and (1A) as to the suitability of accommodation offered in discharge of the Council’s duty (whether or not the appellant accepted the offer) and as to the discharge of the duty, the notification provision in regulation 6(2) provides that:-

“…the authority to whom a request for a review under section 202 has been made shall-

(a)

notify the applicant that he, or someone acting on his behalf, may make representations in writing to the authority in connection with the review; and

(b)

if they have not already done so, notify the applicant of the procedure to be followed in connection with the review.”

The provisions in regulation 8 for the procedure on a review are also relevant. It is provided that:-

“(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.”

In that context, “deficiency” simply means that there is “something lacking”, not just failings that would give grounds for legal challenge. The “something lacking” has to be of sufficient importance to the fairness of the procedure to justify an extra procedural safeguard, such as failure by the original decision- maker to address, or to address adequately, an important aspect of the case : Hall v. Wandsworth LBC [2005] 2 All ER 192 paragraphs 29 and 30. In such a case, if the reviewer intends to confirm the original 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 submissions. See also Mitu v. London Borough of Camden [2011] EWCA Civ 1249. The reviewer must consider whether the deficiency is of sufficient importance for him to give the statutory “minded to find” notice under regulation 8(2), so that there is an opportunity for the applicant to make further representations and to attempt to persuade the reviewer not to confirm the original decision.

HHJ Knight QC accepted the Council’s submissions that there was no error of law in the decision of the review officer and dismissed the appeal.

On s.193(5), the Council successfully contended that (a) it was for the review officer to decide whether the requirement on the Council under s. 193 to give information about “the possible consequence of refusal” of the offer was met; and (b) the letter of 14 September to the appellant complied with the information requirement, the “possible consequence” being that the housing authority regarded themselves as having discharged their housing duty to the appellant under s.193.

On the Review Regulations point, the judge implicitly accepted that the Council had failed to notify the appellant of her right to make further representations on the review. However, the Council succeeded on the point that there had been no contravention of regulation 6(2), as the judge held that it was sufficient for the appellant’s solicitors to be notified of the right to make further representations on the review on her behalf.

The Council successfully contended that there had been no breach of regulation 8(2) in not sending “a minded to find” letter to the appellant. The judge agreed that the inquiries into the appellant’s travelling time had been made pursuant to representations made by her solicitors. The review letter decision was not Wednesbury unreasonable and the decision on the point on travelling time, without a “minded to find” letter, involved no error of law.

Mr Jonathan Manning’s main submissions for the appellant can be summarised under the following heads.

The first criticism of the judgment under appeal was that the judge ought to have held that the Council had failed properly and fully to inform the appellant of “the possible consequence of refusal” of the Council’s offer under s. 193(5) of the 1996 Act. The Council had not included in their letter of 14 September sufficient information about the possible consequences to comply with the statutory requirement.

The appellant’s case was that the requirement was not limited to the single consequence stated in s.193(5) that the Council would cease to be subject to their housing duty to the appellant. The Council should have informed her that, unless she persuaded them that the offer was not suitable, the following specific possible consequences might follow the Council’s decision that they had discharged their s.193(2) housing duty by making the offer: that she would be evicted from her current accommodation; that her homelessness application would be cancelled; that there would be no obligation on the Council to secure any further homelessness accommodation for her; that she had the right to make a fresh application as a homeless person pursuant to s.193(9), but may be found to be intentionally homeless on any fresh application; and that she would be able to remain on the waiting list, but would lose priority for an allocation of long term accommodation under Part VI.

The essence of the submissions was that the requirement to provide information about “the possible consequence of refusal” was imposed by Parliament in deliberately broad terms for the benefit of the individual vulnerable person housed by the Council as homeless, not for the benefit of the housing authority. The Council should provide reasonable help and guidance to people in the appellant’s position. It was submitted that it would be surprising if Parliament had intended “an absurdly narrow reading” of an information requirement of “the possible consequence”, which was imposed to ensure that the implications of the decision were fully understood by the person faced with a decision whether or not to refuse the offer. Such a decision should be taken by the appellant in full knowledge of what a refusal would entail for her rights. She should have been informed fully of the consequence that such a refusal would have, whether arising under Part VII or under the linked Part VI.

There was nothing difficult or onerous in requiring a local housing authority to incorporate into a standard form the information about matters that might be critical to the decision under the 1996 Act when the alternative accommodation is not regarded as suitable by the person to whom the offer is made.

On the language in which s.193(5) was drafted it was said that the use of “consequence” in the singular in s.193(5), which was relied on in the Council’s submissions, was of no significance. There was more than one consequence of a refusal. The reference to “consequence” must be to a composite concept. The Homelessness Code of Guidance for Local Authorities referred in paragraph 14.17 iv) and v) to “possible consequences” in the plural and plainly envisaged more than one consequence of a refusal. Further, s.6(c) of the Interpretation Act 1978 provided that, unless a contrary intention appears, words in the singular include the plural. There was nothing in the subsection to indicate a contrary intention. It appeared to be contended at one stage that the use of the word “possible”, rather than the word “actual”, was an indication that a wider construction was intended, but that was not pressed at the hearing.

Mr Manning submitted that the judge was also wrong to conclude that the question whether Council’s letter of 14 September complied with s. 193(5) was matter for decision by the reviewer: it was a point of law that could be raised for the decision of the court on the appeal to the county court.

Finally, under this head, the result of failure to comply with that mandatory provision of information was that the later steps, including the review itself, were of no legal effect and the rejection of the appellant’s request for a review was not valid.

On the procedural point arising on the Review Regulations, the appellant’s case was that the judge was wrong to hold that there had been compliance with the procedure for notification to the appellant of her right to make representations laid down in regulation 6(2).

The procedure for the review should be interpreted strictly. It was designed to assist applicants in their understanding of the scope of their entitlement to make representations for the purpose of furthering their cases. Here the Council had failed to notify the appellant of the right that she had to make representations on a review, whether herself, or by someone else on her behalf. The Council’s notification to the appellant’s solicitors to the effect that the solicitors may add to the client’s case was an insufficient notification of the appellant’s right to make representations herself, or through someone else.

It was insufficient that the original decision letter of 29 September notified her that she could appoint someone to put forward her case on a review. The failure complained of by the appellant related to her subsequent right to make further submissions on the review. That right must also be notified to an applicant, as was clear from the difference in wording between regulation 6(2) (a) and (b). The appellant had not been made aware of that right either directly or indirectly via a letter to her solicitors.

In brief, the appellant’s right to make further written representations by herself or through someone else had been curtailed by the Council’s failure to comply with the procedure to notify her of that right. The lack of information had deprived her of an opportunity to make representations and had been a barrier to her putting her case in the most effective manner available.

It was not for the Council to decide which aspects of her rights the appellant already knew about and therefore did not need to be informed about. It was not a matter of discretion. There was a clear mandatory absolute requirement that the information should be supplied to her as of right. Nor was it permissible for the Council to rely on the fact that the appellant was represented by experienced housing solicitors. The Council could not delegate to her solicitors the Council’s duty to notify. The provisions did not draw a distinction between information to be provided to represented applicants and to unrepresented applicants. The Council did not know about the relationship between the appellant and her solicitor, or what knowledge the solicitor may assume of the appellant. The mandatory duty was owed to notify the appellant of her rights against the Council to ensure that she knew about them: see London & Clydeside Estates Limited v. Aberdeen District Council [1980] 1 WLR 182 at 186D-H. That case concerned a right of appeal. It was submitted that the right to a review of a decision was just as important.

The notification had only been given about representations by the solicitors. That was a procedural irregularity on a point of principle, which was fatal to the validity of the overall procedure. The judge failed to address the issue whether strict compliance with regulation 6(2) was necessary where a person was represented. It is submitted that it was. The appellant should not be prevented from making representations personally, even if she had instructed a solicitor, or from asking different persons to make representations for her at different stages of the review process.

According to the appellant, there was also non-compliance with regulation 8 (2) of the Review Regulations.

The reviewer concluded that there was no “deficiency or irregularity” in the original decisions and that no obligation therefore existed on the reviewer in connection with “a minded to find” notice. Regulation 8(2) imposed a duty on the reviewer to consider whether there was a deficiency or irregularity in the original decision, or in the manner in which it was made, and, if there was, to serve a “minded to find” notification explaining the reason for his provisional views.

The original decision was deficient in the sense that there was clearly “something lacking” in it. It wrongly assumed that the inquiries made pursuant to s.184 of the 1996 Act were the only inquiries required to reach the original decision. There was a failure to make obvious inquiries into the circumstances of the appellant. She was known to be in receipt of full housing benefit and to have small children. Erroneous assumptions had been made about the appellant’s travel problems. In relation to her mode of travel, it was wrongly assumed by the Council that she travelled by car. No inquiries were made into her personal circumstances, which would affect her ability to travel, such as her need to take her children to school, as well as her need to attend college, and the effect that leaving home early and getting home late would have on the children. It was Wednesbury unreasonable for the reviewer to conclude that there was not “something lacking” in the original decision.

The appellant’s solicitors then made written representations on those issues on the review. That was new material being considered for the first time. It should have been investigated and considered as part of the original decision, which was therefore deficient. There should have been a “minded to find” letter. The appellant was never given an opportunity to respond to the reviewer’s new reasoning on that point in the review decision, or to influence the thinking of the reviewer.

I should add that the alleged breach of regulation 6(2) was not relied on as a deficiency or irregularity for the purposes of regulation 8(2).

The appellant correctly contended that the information and notification duties of (a) the Council in relation to their original decision and (b) the reviewer in relation to the review decision should be construed in the light of their purpose.

Procedural requirements for the decision-making process may be just as important as the substantive law side of that process. As Professor Lon Fuller wrote over 50 years ago, those who participate in affairs “characteristically become, as their experience accumulates, increasingly concerned with how things should be done and not just with what should be done.” (Anatomy of the Law at p.27). But “experience in the salient” (a striking phrase of Sir John McManners in his memoir Fusilier)is a reminder that regard to how things should be done should not be overdone: good sense, which should develop with experience, may put the “deepening concern for procedure” into a more balanced perspective. Depending on the circumstances, substantial, rather than literal, compliance may be sufficient to satisfy the purpose of set procedures. The world of affairs would fall into unwanted chaos, if a literal approach were taken to every procedure, regardless of context or consequence, and if every irregularity robbed all subsequent acts or decisions of legal effect. In the housing field the consequences of chaos would probably be as detrimental to homeless persons in need of temporary accommodation as to the local housing authority under a duty to provide it.

Recognising both the purposes of information and notification requirements and the value of a sensible and balanced approach to the interpretation and application of them, I have arrived at the following conclusions.

In their letter of 14 September 2010 to the appellant the Council told her that they had discharged their housing duty to her by giving her a suitable temporary home and that they were not required to offer her anywhere else to live. They also informed her that, if she refused their offer, she would have to find her own accommodation, unless she successfully challenged the Council’s decision.

The appellant was also told that, if she thought that the property offered was unsuitable, she could ask them to review their decision, saying why she thought that the property was unsuitable and giving them new information to support her case, which might lead to a change of decision.

I am unable to accept Mr Manning’s submissions that, on its true construction, s.193(5) required the Council to spell out to the appellant the sequence of possible events that he said might be causally related to, or flow from, the appellant’s refusal. The statutory obligation on the Council was to inform the appellant of “the possible consequence of refusal” that is set out in the subsection itself.

The appellant was accordingly informed by the Council that, by giving her a suitable temporary home, they had discharged their housing duty i.e. they would cease to be subject to the duty under s.193 to secure that accommodation is available for occupation by the appellant. Did s.193(5) require the Council to spell out to her the possibilities of eviction from her current accommodation, or her right to make a fresh application, or the loss of priority on the waiting list? I do not think so. Those further matters suggested by Mr Manning, but not mentioned in s.193(5), are in the nature of consequences of “the possible consequence of refusal” in ceasing to be under their housing duty. If it had been the legislative aim to impose on the Council a duty to inform in that amount of detail, s.193 would probably have made express provision for the mandatory use of a statutory form setting out the prescribed information.

I also agree with the judge that the sufficiency of the information provided in the Council’s offer letter was initially a matter for the reviewer to decide. It was within the scope of the review of the original decision of the Council that the accommodation offered was suitable and that the Council’s housing duty had come to an end. The reviewer held that the Council had informed the appellant of “the possible consequences [sic] of refusal.” An appeal against that finding could only be brought on a point of law.

In my judgment, the reviewer did not misinterpret or misapply the provisions of s.193(5). In the ordinary language of the offer letter, as understood by the reasonable reader, “the possible consequence of refusal” was that the Council had discharged their housing duty. That meant that, as stated, they were not required to offer her anywhere else to live and that she had to find her own accommodation. In other words, she would not be given temporary accommodation by the Council.

Neither the terms of the subsection nor of the Code of Guidance required the Council to use any particular form of words in making the notification of the possible consequence of refusal. In my view, it was open to the reviewer to conclude that the Council’s offer sufficiently informed the appellant of the possible consequence of the refusal of the offer and did not require the Council to prophesy to her other possible consequences, or to set out in detail a series of predictions of future events causally linked to the discharge of the Council’s housing duty to the appellant. The reviewer did not misconstrue or misapply s. 193(5) in deciding that the Council had complied with it. Nor did the reviewer make a Wednesbury unreasonable decision in so concluding.

On this issue the notable point is that the appellant was represented throughout by solicitors by whom, and through whom, representations were made requesting the review of the original decision on the appellant’s behalf by letter dated 15 October 2010. The Council wrote to the appellant’s solicitors on 3 November 2010 saying that, if they wished to add to their client’s case, representations should be provided within 14 days. Further representations were made on her behalf.

In my judgment, the Council did not breach regulation 6(2), as the substance of the information about the right of the appellant to make representations had already been provided. They had informed the appellant directly in the decision letter of 29 September of her right to a review and to make representations and provide new information and to get someone else to put her case on her behalf. It was clear from the solicitors’ letter of 15 October that the appellant’s representations would be made on her behalf by the solicitors acting for her in relation to the review and representations were in fact made. As a matter of substance, there was nothing more that the Council could reasonably be expected to inform the appellant about that she had not already been informed about concerning representations on the review. Both the appellant and her legal advisors had been informed of the right to make representations on the review. The underlying purpose of the regulation had been achieved, as the substance of the information to be supplied by the Council about the right to make representations on the review was supplied to the appellant directly or via her solicitors. There was therefore no breach of regulation 6(2), as properly construed and applied. See Dharmaraj v. London Borough of Hounslow [2011] HLR 18 at paragraph 25.

The reviewer took the view that there was no deficiency or irregularity in the original decision, or in the manner in which it was made, that regulation 8(2) was not engaged; and that “a minded to find” letter was not therefore needed.

The main criticism was that there was a deficiency in the original decision relating to the inquiries made by the Council into the appellant’s travelling times, if she were to move there. It was submitted that the reviewer wrongly concluded that the inquiries made by the Council on that topic were sufficient.

In my judgment, there was no error of law in the original decision or in the review decision. Before the original decision the Council had spoken to the appellant about the travelling times and that point was considered in the original decision letter. The appellant made representations to the reviewer through her solicitor on that issue and they were responded to in the review decision. The travelling times issue was adequately addressed. No further inquiries were needed. The decision letter of 10 December 2010 dealt with the question of the appellant’s objections based on travelling and concluded that the accommodation offered was “within reasonable travelling distance” from her children’s school and her college.

That was a conclusion that was open to the reviewer on the basis of the original decision and the further representations on the review. The conclusion is not legally erroneous simply because the reviewer has formed a different view than the appellant about it. The overall position, as was made clear in the review decision, was that the Council knew that the appellant was attending a four year accounting course at Hackney College; that her children were at Maryland School; that their school friends live in the Stratford area; that they all travelled by bus, as they had no access to a car; that the children were dropped off at her friend’s place on her way to college and were collected by her from her friend’s place on the way home after college; that the accommodation offered was 6 miles from the current accommodation; and that the longer periods of travelling time involved adjustment to the time of leaving home in the morning and returning in the evening, but were not considered excessive.

The conclusion of the reviewer that the accommodation offered was within “reasonable travelling distance from her children’s school, her friend’s address and her college” was the result of addressing the issue in some detail. It has not been established that it was based on any error of law, or was an irrational conclusion in all the circumstances.

I would dismiss the appeal. I am not persuaded by Mr Manning’s submissions that the Council misconstrued or misapplied s.195(5) in relation to the information to be given by the Council to the appellant of “the possible consequence of refusal” of the offer of alternative temporary accommodation. Nor was there any error of law in relation to the notification duties concerning the right to make representations on the review, or on the review procedure and decision itself.

I agree.

I also agree.