London Borough of Wandsworth v NJ

This case raises the issue as to the circumstances in which, for the purposes of sections 198(2) and 199 of the Housing Act 1996 (as amended by the Homelessness Act 2002) (“the 1996 Act”), an applicant for housing assistance has a local connection with the district of the authority to which his or her application is referred pursuant to section 198(1) of the 1996 Act. In particular this case raises the question whether a person’s residence in a refuge in a particular local authority district, as a result of having been the victim of domestic violence, is a “residence of his own choice” within the meaning of section 199(1)(a) of the 1996 Act.

This is an appeal by the London Borough of Wandsworth (“the Appellant”) from the judgment of His Honour Judge Welchman, sitting in the Wandsworth county court, dated 11 December 2012 (“the judgment”). By the judgment the judge varied a review decision dated 26 July 2012 (“the review decision”) made by Ms Marcia Anglin, the Senior Reviews Officer of the Appellant (“the SRO”) pursuant to section 202 of the 1996 Act.

By the review decision the SRO confirmed an earlier decision made by the Appellant dated 7 March 2012 under section 184 of the 1996 Act (“the initial decision”) whereby it concluded that NJ, the respondent to this appeal (“the Respondent”), was unintentionally homeless, was an eligible person and was in priority need within the meaning of the 1996 Act, but that she did not have a local connection with the Appellant. Accordingly the Appellant concluded that it had no statutory obligation to house the Respondent and referred her application to the London Borough of Lambeth (“LBC”) purportedly pursuant to its powers section 198 of the 1996 Act, on the grounds that the Respondent had a local connection with LBC on the basis of her residence at a women’s refuge in Lambeth from June 2011 to March 2012, and that neither the Respondent nor her daughter would run the risk of domestic violence in that other district.

By his order dated 11 December 2012, the judge; i) allowed the Respondent’s appeal; ii) quashed the review decision; iii) ordered the Appellant to ensure that accommodation was available for occupation by the Respondent and her daughter pursuant to section 193 of the 1996 Act.

The respondent is in her late twenties. Her daughter was born in 2005. In June 2011, as a result of serious domestic violence, the Respondent left her home in Leicester and decided to travel to London to seek refuge. With the assistance of the Safeguard Project, she was found a place in a refuge in Lambeth, which she accepted. It was the first place which had become available.

The refuge arranged counselling for the Respondent in Lambeth and provided her with services designed to help her, and her daughter, overcome the effects of the domestic violence. The Respondent was also treated for depression by a GP in Lambeth.

After six months in the refuge the Respondent was considered by the staff to be ready for life in mainstream accommodation and, with their assistance, she applied on 18 January 2012 to the Appellant under Part VII of the 1996 Act. She chose to apply to the Appellant in order to make a “fresh start”, because she had friends in its area and because she intended that her daughter should go to school there. She claimed that her residence in Lambeth had not been by choice.

In February 2012, the Respondent’s former partner was charged in relation to a very serious assault on the Respondent committed in February 2011. He had not been charged previously as (i) the Respondent had not felt safe enough to report the incident to the Police; and (ii) he had been in a coma for a period following a car accident.

On 7 March 2012 the Appellant made the initial decision pursuant to section 184 of the 1996 Act. It decided that, although the Respondent qualified for housing assistance, because she had no local connections with Wandsworth, but did have a connection with Lambeth, the “referral conditions” set out in section 198 of the 1996 Act were satisfied. Accordingly the Appellant exercised its discretion to refer the Respondent’s application to LBC pursuant, or purportedly pursuant, to its powers under section 198. In its letter dated 7 March 2012 the Appellant stated:-

“You have pointed out that your residence in a Lambeth women’s refuge was not by choice. However, it is evident that regardless of how or the reason why you lived in Lambeth, you voluntarily accepted accommodation there, and hence it became your normal residence. Therefore, this council is satisfied that you have established a local connection with Lambeth, and not with this local authority.”

On 16 March 2012 the Respondent telephoned the Appellant and requested a review of the Appellant’s decision.

On 30 March 2012 the SRO sent the Respondent a "minded to find" letter stating that, although the Appellant was taking

“ all reasonable steps to obtain as much information in relation to the matters which you have raised in relation to this review and to ensure that the review is dealt with fairly”,

and that the SRO had yet to reach a decision on review, the SRO was minded to uphold the Appellant’s original decision that the Respondent’s local connection rested with Lambeth and not with the Appellant. The SRO identified the specific issues in respect of which she was minded to find against the Respondent. These included:

On 14 May 2012 the Respondent moved to a refuge in Southwark following a visit from a friend from Leicester and concerns over her safety, because of the fear that her former partner might try to find out where she was living.

Subsequently, on 11 July 2012, the Respondent’s solicitors sent extensive written review representations to the Appellant. These contended that the Appellant’s failure to provide the Respondent with accommodation in Wandsworth was in breach of the Appellant’s statutory duty and that the latter’s referral of the Respondent’s application to LBC was unlawful for the following reasons:

"1.

Local Connection is a discretionary requirement and the authority should not apply it in these circumstances;

2.

Our client does in any event have a local connection to Wandsworth;

3.

Our client does not have a local connection to Lambeth because a refuge cannot be a ‘residence of choice’, and she formed no real connection with the area; and

4.

Even if our client did have a local connection to Lambeth, she should not be referred there because she is at risk of violence in the borough. If the Authority had made inquiries before making the referral, they would have discovered that our client was at risk in the area and would not have made the referral."

Subsequently, the SRO made further factual inquiries of the Respondent, which were recorded in attendance notes of telephone conversations dated 24 and 26 July 2012.

On 26 July 2012 the SRO sent a further very detailed letter to the Respondent setting out the review decision. The letter stated that the SRO had concluded the Appellant’s review and had decided to confirm the initial decision. In that letter she made it clear that she had taken into account:

On 5 October 2012 LBC wrote to the Respondent pursuant to section 184 of the 1996 Act informing her that it was satisfied that she was eligible for assistance, homeless, in priority need, not intentionally homeless and had a local connection with Lambeth. LBC accordingly accepted its obligation to house the Respondent.

Part VII of the 1996 Act sets out a housing authority's duties to those who are homeless or threatened with homelessness. The relevant provisions are as follows:

In Maswaku v Westminster City Council [2012] EWCA Civ 669, the Court of Appeal considered what is meant by a “deficiency” in the original decision for the purposes of Regulation 8. Mummery LJ said at [23].

It is clear from the authorities that the local housing authority is the sole arbiter of fact in making a decision under section 184 or section 202. The weight to be given to the evidence considered by a local authority in coming to its decision under section 184 and section 202 of the Housing Act 1996 is a matter for it alone. In R v L.B. Hillingdon ex p. Puhlhofer [1986] 1 A.C. 484 Lord Brightman said at p.518:

“The plight of the homeless is a desperate one, and the plight of the applicants in my present case commands the deepest sympathy. But it is not, in my opinion, appropriate that the remedy of judicial review, which is a discretionary remedy, should be made use of to monitor the actions of local authorities under the Act save in the exceptional case. The ground upon which the courts will review the exercise of an administrative discretion is abuse of power - e.g. bad faith, a mistake in construing the limits of the power, a procedural irregularity, or unreasonableness in the Wednesbury sense - unreasonableness verging on an absurdity: see the speech of Lord Scarman in Reg v Secretary of State for the Environment, Ex parte Nottinghamshire County Council [1986] A.C. 240, 247-248. Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely.”

That remains the correct approach under the 1996 Act: see Adel William v Wandsworth [2006] EWCA Civ 535 at [19]-[20] and Bubb v Wandsworth LBC [2011] EWCA Civ 1285 per Neuberger LJ at [19]-[21], where he emphasised that:

“there is no jurisdiction under the statutory scheme for the county court to set itself up as a finder of the relevant primary facts for itself.”

Lord Neuberger also recently gave guidance on the correct approach to adopt when considering review decision letters. Thus in Holmes-Moorhouse v Richmond-upon-Thames BC [2009] UKHL 7; [2009] 1 WLR 413 he said:

“50.

Accordingly, a benevolent approach should be adopted to the interpretation of review decisions. The court should not take too technical a view of the language used, or search for inconsistencies, or adopt a nit-picking approach, when confronted with an appeal against a review decision. That is not to say that the court should approve incomprehensible or misguided reasoning, but it should be realistic and practical in its approach to the interpretation of review decisions.”

The basis upon which the judge varied the review decision and ordered the Appellant to secure that accommodation was available for the Respondent and her daughter can be summarised as follows:

On the basis of the Appellant's notice of appeal, the issues which originally arose in the appeal were as follows:

By a Respondent’s notice of appeal dated 28 March 2013, the Respondent sought to rely upon a further ground of appeal against the review decision dated 27 July 2012, namely that, in reaching its decision to refer the Respondent to the LBC, the Appellant failed to comply with section 149 of the Equality Act 2010.

On 20 June 2013 Aikens L.J. made an order that permission be granted to the Respondent to argue that new ground of appeal without prejudice to the right of the Appellant to argue that the Court of Appeal should reject this ground on the basis that it had not been argued below and that the Appellant would be prejudiced as a result, if the new point were taken.

Having heard submissions from both parties, this court refused to allow the Respondent to rely upon this new ground of appeal at this stage of the proceedings. In the interests of the proper administration of justice, the Respondent should have raised the point before the judge in the county court. As Chadwick LJ said in Adel William v Wandsworth (2006) HLR 42 at [72], final sentence:

Moreover, had the new ground been raised before the county court, it might well have been the case that the Appellant would have wished to have put evidence before the court relating to the allegation that the Appellant was applying some sort of discriminatory policy when exercising its right to refer, where the conditions of referral were met. On any basis the Appellant was justified in saying that it would have wished to have given consideration to so doing.

In the circumstances, this court took the view that it was inappropriate that we should entertain the new ground of appeal without there having been full consideration of the point in the county court, on the basis of any relevant evidence.

I remind myself, that as emphasised in R v LB Hillingdon ex parte Puhlhofer, and other cases, factual decisions are for the reviewer not for the courts. Thus, in a case such as the present, only if a reviewer has applied the wrong legal test to determine normal residence, or the facts relied upon by a reviewer are not “capable” as a matter of law of satisfying the requirement that normal residence was of the applicant’s own choice (see per Lord Hope in Al-Ameri at [40]), is it appropriate for a court to interfere with the factual findings of the reviewer.

Did the SRO in the present case apply the wrong legal test or base her conclusion that the Respondent was resident of “her own choice” in Lambeth on facts which were not capable in law of satisfying such requirement?

Mr Martin Westgate QC and Mr Jamie Burton, counsel for the Respondent, submitted that, applying the approach set out in Al-Ameri the judge was correct to conclude that the SRO asked the wrong question. Thus Mr Westgate submitted:

Contrary to Mr Westgate's submissions, I consider that, on the basis of the factual material before the Appellant, the SRO was as a matter of law entitled to conclude that the Respondent’s residence in Lambeth was of her own choice and that, accordingly, she had a local connection with the district of LBC for the purposes of section 199. My reasons may be shortly stated as follows.

First, I do not consider that the SRO asked herself the “wrong question”. Whilst she did ask herself the two questions: “a) do you normally reside in the refuge in Lambeth? b) Did you choose to reside in the refuge?”, adopting a “realistic and practical approach” to the relevant passages in her letter dated 26 July 2012, it is clear that she fully appreciated that the refuge was in Lambeth and that the relevant question was whether the Respondent had chosen to reside in Lambeth. To construe her letter as not addressing the question as to whether the Respondent had chosen to live in Lambeth is to adopt the technical and nit-picking approach condemned by Lord Neuberger in Holmes-Moorhouse v Richmond (supra). As Mummery LJ emphasised in El Goure v RBKC, its 2012] EWCA Civ. 70 at 44, if the relevant passages are read in the context of the decision as a whole, it is manifestly clear that the SRO was addressing her mind to the right question.

Second, although the effect of the Al-Ameri case has been reversed by statute so far as National Asylum Support Service Accommodation (“NASS”) is concerned, the statements made by the House of Lords in Al-Ameri in relation to the phrase “of his own choice” are still applicable to cases such as the present. But, in my judgment, neither the reasoning, nor the actual decision, in Al-Ameri provides any support for the Respondent’s contention that, on the basis of the materials before the SRO, she was unable as a matter of law to conclude that the Respondent resided of her own choice in Lambeth.

The facts in Al-Ameri were very different from those in the present case. In Al-Ameri the applicants had been provided with accommodation in Glasgow by NASS. The question arose as to whether they had thereby acquired a local connection with Glasgow. It was accepted that, whilst in the NASS accommodation, they had been normally resident in Glasgow and the case turned on whether that residence had been of their own choice (paragraph [16]).

The House of Lords held (at paragraphs [17], [41]-[44] and [54]-[59]) that the residence had not been of their own choice and that an applicant's residence in NASS accommodation could never be of the applicant's own choice. The argument that the applicants had chosen to reside in Glasgow because they had a choice as to whether or not to accept the NASS accommodation was rejected. The location of the accommodation to be offered was chosen by NASS and the statutory provisions specifically required any preference expressed by an asylum seeker as to the locality of the accommodation to be disregarded (section 97(2) of the Immigration and Asylum Act 1999). Support by NASS was offered as part of a package so that, if the accommodation offered was refused, it was likely that no subsistence support would be available. An asylum seeker who refused the support offered might be placed in detention (see Al-Ameri at [54]).

In those circumstances, as Mr David Lintott, counsel for the Appellant, submitted, it was not surprising that the House of Lords decided that it would be an abuse of language to say that the applicants had chosen to live in Glasgow. They faced a choice of moving to Glasgow, destitution or detention.

In contrast, in the present case, the SRO was, in my judgment, entitled to conclude on the material before her that the Respondent had voluntarily chosen to come to London (as opposed to any other part of the country) and had voluntarily chosen to seek assistance from the particular charity which housed her. Whilst it was true that, apparently, the only refuge place available in London was in Lambeth, nonetheless the Respondent had voluntarily chosen to accept the refuge’s offer and to reside in Lambeth. As the SRO pointed out, when the Respondent arrived in London in June 2011 she had the right, as a homeless person, to apply to any local authority for accommodation. Indeed she could have chosen to live in any other area of the country apart from London. Instead she chose, for understandable reasons, to reside in the women’s refuge place offered to her in Lambeth. Whilst she might have preferred to live in another district, and whilst she might have considered that, given her need for support, she had, from a practical point of view, a very limited range of options given her wish to live in London, other than to accept the Lambeth placement, nonetheless in my view the SRO was, as a matter of law, entitled to conclude that the Respondent’s residence in Lambeth was of her own choice. On any basis, it was one made by her voluntarily.

It follows that I do not accept Mr Westgate’s arguments that either the decision in Al-Ameri or the particular facts of this case predicate the conclusion as a matter of law that the Respondent’s residence in Lambeth was not “of [her] own choice”.

Accordingly, in my judgment it was not open to the judge to quash the SRO’s decision on this ground. Nor was he entitled to vary the review decision so as to provide that the Appellant "shall secure that accommodation is available for occupation by the Appellant and her daughter pursuant to section 193 of the [1996 Act]."

The short issue here is whether the SRO was in breach of her procedural obligations under Regulation 8(2) of the Regulations. The Respondent’s argument, which was accepted by the judge, was that the initial decision was defective because (necessarily) it did not address the subsequent events relating to the Respondent’s concerns about the possibility of her ex-partner trying to find out where she and their daughter lived, the potential risk of violence in the Lambeth area, and the Respondent’s consequential transfer to a different refuge located in the London Borough of Southwark. Accordingly Mr Westgate submitted that it was incumbent upon the SRO, before making her final decision, to write a further letter to the Respondent, notifying her that the SRO was nonetheless minded to affirm the initial decision and her reasons for so doing, and giving the Respondent, or someone on her behalf, an opportunity to make further submissions orally or in writing, or both orally and in writing.

In my judgment, and despite Mr Lintott’s submissions that the identification of a “deficiency” was a factual matter for the SRO’s decision alone, there was indeed a material deficiency in the initial section 184 decision; and the judge was right so to conclude. That was because the Appellant’s initial decision in its letter of 7 March 2012 that “we are satisfied that you would not be at risk of domestic violence in the [Lambeth] area”, necessarily did not, and could not, take into account the subsequent evidence relating to the Respondent’s new concerns about her ex-partner tracking her down at the Lambeth refuge, and her consequent move to the Southwark refuge.

It is clear from the court’s decision in Banks v Kingston-upon-Thames RLBC [2008] EWCA Civ 1443 that a purposive interpretation has to be given to Regulation 8(2) and that an original decision may subsequently be rendered “deficient” in the light of intervening events which occur between the date of the original decision and that of the review decision; see e.g. per Lawrence Collins LJ at 70-72.

In the present case there was, in my view, no, or no adequate, consideration by the SRO as to whether the initial decision was deficient on these grounds. That was perhaps not surprising since it was only after the SRO’s original “minded to find” letter dated 30 March 2012 that the SRO was informed, in the further written representations made by the Respondent’s solicitors dated 11 July 2012, of the Respondent’s fears that her ex-partner was seeking to locate her and her subsequent move to the Southwark refuge in the light of those concerns. The nearest that the SRO came to considering whether there had been a deficiency in the initial decision on these grounds was her statement at page 5 of the review decision that:

“it is impossible to accept your representatives submissions that this council failed to make enquiries whether you were at risk of violence in Lambeth, when you never made such a claim”.

She did however in her section 202 review decision extensively and carefully consider the further written representations made in relation to the issue of “risk of violence in the Lambeth area”. She concluded that there was no such risk.

The question is therefore whether, notwithstanding that the Respondent’s written representations in relation to risk of violence in the Lambeth area had been carefully considered by the SRO, she was nonetheless under a procedural obligation to serve a further “minded to find” notice under Regulation 8(2).

In my judgment the SRO was indeed required, in the events which had happened:

That such a procedural obligation arises is apparent from decisions such as Lambeth LBC v. Johnston [2008] EWCA Civ 690 and R(Mitu) v Camden [2011] EWCA Civ 1429. In the latter case Lewison LJ (with whom Sullivan LJ agreed) stated at [22]- [27] as follows:

Rix LJ agreed with the result that, in the circumstances of the case, a further "minded to find" letter should have been sent, but stated that he differed from Lewison LJ in relation to the nature of the deficiency or irregularity required to trigger the obligation to send a further letter. At [34] he said:

“34 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.”

In my view, irrespective of such difference, if any, which there might have been between the respective approaches of Lewison LJ and Rix LJ in Mitu, in the present case there can be no doubt that the inevitable "failure" of the initial review to address the subsequent concerns about risk of violence in Lambeth and the Respondent’s consequential move to a different refuge in Southwark, was a deficiency or irregularity of "sufficient importance to the fairness of the procedure to justify [the] extra procedural safeguard" required by Regulation 8(2); see per Lewison LJ in Mitu at [19].

Accordingly, in my judgment the judge was correct to conclude that a further "minded to find" letter should have been sent by the Appellant.

Accordingly, I would allow this appeal to the extent of setting aside paragraph (2) of the judge's order (which imposed a mandatory requirement upon the Appellant to secure that accommodation was available for occupation by the Appellant and her daughter). The effect of that order will be that the Appellant will be required to determine the outstanding request for a review pursuant to section 202(4) Housing Act 1996.

I have had the benefit of reading in draft the judgments of Gloster and Lewison LJJ. I agree with both of them, and with the disposition of the appeal that they propose.

I agree both with the judgment of Gloster LJ, and the disposition of this appeal that she proposes. I add a short judgment of my own in deference to the excellent arguments on both sides.

Section 198 of the Housing Act 1996 applies where a local housing authority would be subject to the duty under section 193. Section 193 applies where a local housing authority are satisfied that an applicant is unintentionally homeless and in priority need. In such a case the duty is a duty to secure that accommodation is available for the applicant. In our case both the local housing authorities concerned (Wandsworth LBC and Lambeth LBC) were so satisfied. So the issue is not whether NJ will be accommodated. She will. Lambeth have accepted the full housing duty in her case. But she does not want to live in Lambeth. She wants to live in Wandsworth.

The relevant parts of section 198 are as follows:

“(1)

If the local housing authority would be subject to the duty under section 193 (accommodation for those with priority need who are not homeless intentionally) but consider that the conditions are met for referral of the case to another local housing authority, they may notify that other authority of their opinion.

(2)

The conditions for referral of the case to another authority are met if—

(a)

neither the applicant nor any person who might reasonably be expected to reside with him has a local connection with the district of the authority to whom his application was made,

(b)

the applicant or a person who might reasonably be expected to reside with him has a local connection with the district of that other authority, and

(c)

neither the applicant nor any person who might reasonably be expected to reside with him will run the risk of domestic violence in that other district.

…

(3)

For the purposes of [subsection] (2)… “violence” means—

(a)

violence from another person; or

(b)

threats of violence from another person which are likely to be carried out;

and violence is “domestic violence” if it is from a person who is associated with the victim.”

NJ left her home in Leicester as a result of domestic violence. She took a train to London. She was put in touch with Refuge, a charity which operates a network of refuges throughout the country. Their only available space in London was at a refuge in Lambeth where she was accommodated between June 2011 and May 2012. When she applied to Wandsworth for accommodation in January 2012 she had been accommodated in the refuge in Lambeth for some seven months, and by the time of the initial decision she had been accommodated there for some eleven months. Wandsworth decided to refer her to Lambeth on the ground that she had a local connection with Lambeth.

The relevant ground on which Wandsworth made that decision was that NJ was “normally resident” in Lambeth and that residence “is or was of [her] own choice”. It was not disputed that NJ was, at the relevant time, normally resident in Lambeth. The question was: was that residence of her own choice?

In Al-Ameri v Kensington and Chelsea Royal London Borough Council [2004] UKHL 4 [2004] 2 AC 159 two asylum seekers had been housed in Glasgow while their applications for asylum were processed. The scheme under which they had been housed was administered by the National Asylum Support Service and was known as the compulsory dispersal scheme. The statutory underpinning of the scheme was the Immigration and Asylum Act 1999. Section 96 of that Act empowered the Secretary of State to provide accommodation. But section 97 (2) prohibited him from having any regard to “any preference that the supported person or his dependants (if any) may have as to the locality in which the accommodation is to be provided.” In accordance with the scheme the two asylum seekers were sent to Glasgow. It was accepted that Glasgow was the place where they were normally resident. The question was whether that was the district of their choice. The House of Lords unanimously said “no”. Lord Bingham said:

“So the question to be asked of each respondent is "Did you reside in Glasgow of your own choice?" To that question there can be, in the case of each respondent, only one possible answer: "No. I was given no choice about where I resided. I resided in Glasgow because, and only because, that was the only place where I was offered accommodation and the means to meet the most basic of human needs."”

Lord Hope said:

“It is not enough to show that the person was content to reside there, or that he went there voluntarily. Nor is it enough to show that he had a choice between going to the place chosen for him by NASS and staying where he was when the offer was made. The statutory language does not permit that approach. What it requires is that he chose to live in that particular district. The choice to live in that particular district must have been his own choice, and not one that was dictated to him by the choice of someone else.”

But Lord Hope also drew attention to the features of the compulsory dispersal scheme:

“It is clear beyond any doubt that the destitute asylum-seeker has no choice as to the locality in which support under section 95 of the 1999 Act is to be provided to him. The law and the practice are at one on this point. Section 97(2) requires the Secretary of State to disregard any preference that the supported person and his dependants may have about this. He may make it clear that he wants to remain in London, or he may make it clear that he wants to go to Glasgow. But, whatever his preference may be, it is to be disregarded. So far as the statute is concerned, the choice lies with the Secretary of State and with him alone.”

Lord Scott said:

“The question asks whether the individual chose that particular district to be the district of his or her residence. It is directed to the choice of the district. It seems to me clear on the evidence that neither Mr Al-Ameri nor Mrs Osmani chose Glasgow. Glasgow was chosen for them by NASS. The circumstance that each of them decided to travel with their respective families to Glasgow and to take up residence there rather than to expose themselves to the privation and uncertain future that would have followed upon their failure to do so may be represented as a choice. But it was not the choice that section 199(1)(a) is directed to.”

The decision in that case has been reversed by section 11 of the Asylum and Immigration (Treatment of Appellants etc) Act 2004 inserting sub-section 199 (6) into the Housing Act 1996. But the reasoning of the House of Lords on what amounts to choice remains binding on this court.

The initial decision letter in our case said:

“You stated that you were told that the only refuge space available in London was in Brixton and seem to be suggesting that you did not have a real choice as to where you lived.”

In her “minded to find” letter of 30 March 2012 the reviewing officer said that she was minded to find against NJ on the question of normal residence of choice.

This gave NJ, with the aid of her solicitors, the chance to marshal whatever evidence they chose in order to show that her residence in Lambeth was not residence of her choice. In their letter of 11 July 2012 NJ’s solicitors dealt with the question of choice as follows:

“Our client was advised and referred to the refuge via Safeguard Project. She was advised that this refuge was the only refuge in London with a vacancy at the time and she was clearly under duress as she had to move away from her home quickly … and needed to leave the Leicester area…”

The reviewing officer’s decision of 26 July 2012 said:

“You may wish to argue that you did not have a real choice as to where you lived because you were advised that the only refuge space in London was located in Lambeth. I accept that you may have found the support [of] a Women’s Refuge in Lambeth desirable. However, there is nothing to suggest that it was essential to your well being, or that such support could only have been offered by this particular refuge out of all women’s refuges in the UK.”

It is important to note that NJ’s case as presented to Wandsworth was not that the refuge in Lambeth was the only refuge space available anywhere. It was that the refuge space in Lambeth was the only refuge space available in London. Suppose, for example, that when NJ contacted Refuge, they offered her a place in Truro or Newcastle; but when she said that she wanted to go to London, they said that the only available refuge space in London was in Lambeth. Or suppose that, wishing to live in London, she approached more than one provider of refuges, but the only one that had an available space in London had a space which happened to be in Lambeth. In those circumstances it would, in my judgment, have been open to Wandsworth to find as a fact that she chose to live in Lambeth. In Al-Ameri the asylum seekers had no choice at all. There was only one national agency that allocated housing and that agency was required to ignore any preference of the asylum seeker. That, in my judgment, is some way away from our case. In our case:

Given this cumulative series of choices, in my judgment on the material before the reviewing officer she was entitled to find that NJ was normally resident in Lambeth; and that that residence was residence of her choice. The judge not only quashed Wandsworth’s decision. He went on to decide that NJ had no local connection with Lambeth. In my judgment he was wrong on both counts. Even if Wandsworth had not asked itself the right question, there was still the possibility that further investigation of the facts would have revealed that NJ had indeed made a choice, even if it was a limited choice from a set of restricted options. A choice from the menu is no less a choice than a choice à la carte. I would allow the appeal on that issue.

That leads on to the second issue. Under regulation 8 of the Allocation of Housing and Homelessness (Review Procedure) Regulations 1999:

“(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 my judgment the following propositions are established by authority:

In the light of those principles I would hold as follows:

As mentioned, one of the conditions for referral that must be met is that the applicant will not run the risk of domestic violence in the other district to which she is to be referred. In our case the original decision letter stated:

“Although the council is satisfied that you left your Leicester address due to domestic violence there are no grounds upon which to exercise our residential discretion not to refer your application to the London Borough Lambeth as we are satisfied that you would not be at risk of domestic violence in that area.”

Not surprisingly there was no reasoning to amplify that statement, because the issue had not then been raised. In response to that statement NJ’s solicitors provided new material. The new material raised was the allegation that NJ had been seen by associates of her ex-partner in the Brixton area; and that in consequence there was a risk that she would be exposed to domestic violence in Lambeth. That, indeed, she said was the reason that she had moved from the refuge in Lambeth to another refuge in Southwark. The letter was supported by a letter from the police in Leicester and from the refuge itself. This material clearly went to the issue under section 198 (2) (c) whether NJ would run the risk of domestic violence in Lambeth. If the answer to that question was “yes” then the conditions for a referral by Wandsworth to Lambeth would not have been met. The reviewing officer did not serve a “minded to find” notice before proceeding to her decision to uphold the original decision. That she did not do so can only be attributable to one of two reasons:

We do not have any evidence from the reviewing officer which of these is correct, but the probability is that it was the latter (compare Ibrahim v Wandsworth LBC [2013] EWCA Civ 20).

As the judge pointed out, the reviewing officer dealt with the new material point by point explaining why she did not consider that NJ was at risk of domestic violence in Lambeth. That explanation occupied two closely typed pages of a seven page letter. It clearly went to the heart of the case. The very fact that the reviewing officer thought it necessary to deal with the question in such detail, where the original decision letter merely stated a one sentence conclusion without reasons, seems to me to show that there was in fact a deficiency in the original decision, in the sense that it did not adequately address the question of the risk of domestic violence in Lambeth; and that the reviewing officer had identified that deficiency. Mr Lintott emphasised that the question was not whether any deficiency required the service of a “minded to find” notice. That duty was restricted to a case in which the reviewing officer considered that the deficiency was such as to affect the overall fairness of the review. That was a matter for her decision and it was an evaluative decision that was capable of challenge only on public law grounds.

However, the criterion to be applied in making that evaluative judgment is whether further representations could have made a difference to the decision that the reviewing officer eventually made. This is not a question of discretion, because the obligation to serve a “minded to find” notice is mandatory. I am in no doubt that if NJ had been permitted to make further representations on the question of the risk of domestic violence in Lambeth those representations could have made a difference to the reviewing officer’s decision. I do not see how any other conclusion is possible. In my judgment it must therefore follow either that the reviewing officer applied the wrong test; or that she reached a decision that no reasonable reviewing officer, directing herself properly in law, could have reached.

Accordingly in my judgment the judge was correct on this issue. It follows, in my judgment, that the actual decision must be quashed. But because of the conclusion I have reached on the first issue, I would not uphold the judge’s order requiring Wandsworth to house NJ. I would remit the matter to Wandsworth for reconsideration.