Banks v Royal Borough of Kingston-Upon-Thames [2008] EWCA Civ 1443

[2008] EWCA Civ 1443Case No B2/2007/2832
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON COUNTY COURT
HIS HONOUR JUDGE CRAWFORD LINDSAY QC
7KT01419
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 17/12/2008
Before
LORD JUSTICE LONGMORELORD JUSTICE WILSONLORD JUSTICE LAWRENCE COLLINS
Between
GEOFFREY BANKSAppellantTHE ROYAL BOROUGH OFRespondentKINGSTON-UPON-THAMESRespondent
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr David Carter and Ms Sarah McKeown (instructed by Kingston and Richmond Law Centre) for AppellantMr David Warner (instructed by Royal Borough of Kingston-upon-Thames) for RespondentHearing Hearing date : December 5, 2008
Judgment

I Introduction

[1]Geoffrey Banks is a fifty-one-year-old man with alcohol-related liver cirrhosis, alcoholism, depression and asthma. He is divorced and has a young son with whom he has contact. In a decision dated November 1, 2006 the Homelessness Assessments Team of the Royal Borough of Kingston-Upon-Thames (“the Council”) found that Mr Banks, who was then homeless, did not have a priority need for accommodation. Shortly afterwards he rented a small room in a house, and made a fresh application to the Council on the basis (inter alia) that his medical condition made it impossible or difficult for him to live there. In February 2007, the Council issued a decision letter refusing his application on the ground that he was not homeless or threatened with homelessness.[2]Mr Banks’ landlord gave him notice to quit. Mr Banks exercised his right to request a review of that decision. On review the Council varied the original decision to a decision that Mr Banks was homeless in light of the notice to quit. But the decision that the Council did not have a duty to house Mr Banks was upheld on the ground that Mr Banks did not have a priority need.[3]Under the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 (SI 1999 No 71) (“the 1999 Regulations”), Regulation 8(2), there is a right to make representations where the reviewing officer considers that there is a deficiency in the original decision, but is minded nonetheless to make a decision which is against the interests of the applicant. Mr Banks was not given an opportunity to address the issue of priority need after the reviewing officer had decided that the original finding that Mr Banks was not homeless could no longer stand. This appeal is said to raise (among other questions) a question of principle whether, when the facts change, the original decision can be said to contain “a deficiency”. In fact, although the point does arise and is by no means easy, it is, as I shall indicate, virtually devoid of any practical significance in the present case.

II The background

[4]This is Mr Banks’ appeal against the decision of HHJ Crawford Lindsay QC made on November 22, 2007 at the Central London County Court. That, in turn, was an appeal brought under section 204 of the Housing Act 1996 by Mr Banks, to challenge a decision of the Council, made on March 20, 2007, that he was not a person with a priority need for housing within the meaning of section 189 of the 1996 Act, in particular that he was not vulnerable within the meaning of section 189(1)(c).[5]He applied to the Council as homeless in October 2006. Notes taken by an officer of the Council on October 13, 2006 recorded, inter alia, that Mr Banks was an alcoholic, that he said he was depressed and that he had been taking anti-depressants but his doctor took him off them after he overdosed on them. He had been suicidal, but was better and not suicidal at the time the notes were made.[6]Following a request in standard form dated October 13, 2006, from the Council for information about his medical history (including details which would allow the Council to make an assessment regarding vulnerability), Dr. Parekh of Mr Banks’ G.P. surgery wrote to Mr Nicholson, the Homelessness Assessments Officer, to say that Mr Banks had, over the previous months, been very depressed, had lost a considerable amount of weight and had been on antidepressant tablets. The letter also stated that Mr Banks had been drinking heavily, had been referred for community detoxification and that he had attempted an overdose the previous December; and that Mr Banks suffered from considerable agitated depression which, together with his asthma, had flared up in the last few months and that he had been attending regularly at the surgery. The report letter stated that Mr Banks remained very vulnerable and requested that the Council urgently consider him for re-housing.

November 2006 Decision

[7]In its decision letter pursuant to section 184 dated November 1, 2006 the Council found that Mr Banks did not have a priority need. The letter concluded that Mr Banks was reasonably able to cope with finding and maintaining his own accommodation and that he was considered to be no less able to find for himself than his peers, so that injury or detriment would not result, when a more vulnerable person would not be able to cope without harmful effects. No request for a review of the decision was made by Mr Banks.[8]Dr. Parekh’s letter was stamped as seen by the Council’s Independent Medical Adviser, Dr. Hinton, on November 14, 2006, almost 2 weeks after the date of the section 184 decision. Dr Hinton filled in a medical assessment form on November 14, 2006, recording that he had seen Dr. Parekh’s letter stating that Mr Banks drank heavily, and commenting that there was evidence of mental health issues as well as alcohol misuse and asthma. However, he noted that there were no details regarding prognosis or referral to the Community Mental Health Team. Dr. Hinton advised the Council to obtain more details and review the position. He stated that the Council could fax him if it had concerns but “but not in priority need at this stage.” He ticked the box on the form which indicated that further information was required.[9]On November 3, 2006 Mr Banks entered into a licence agreement for occupation of 86 Blagdon Road, New Malden, Surrey, KT3 4AE for a term of six months, commencing on November 3, 2006. He rented a small room, and six other people were living in the house.[10]Mr Banks applied again as homeless to the Council on February 8, 2007. In the Homelessness Application Form completed by the Council on the same date, it is stated that Mr Banks had medical problems and had a history of mental illness/bizarre or disorientated behaviour. It also recorded that he was depressed. In support of his application, Mr Banks provided the Council with a letter he had written on February 5, 2007, dealing with the condition and suitability of the premises in which he was living, and the effect that this had on his health.[11]Notes taken by an officer of the Council on February 8, 2007 recorded inter alia, that Mr Banks was sharing accommodation with seven people. Mr Banks reported that he was on diuretic tablets which might make him want to go to the toilet frequently but it was inconvenient to do so with so many people using one toilet. Further, Mr Banks had his son to visit at the premises and the living conditions were not ideal.[12]The initial assessment form of the same date indicated that he was not homeless.[13]On February 8, 2007, the Council also requested (again in standard form) the same information from Mr Banks’ G.P. regarding his medical history as it had done in October 2006.[14]A report dated February 13, 2007 on Mr Banks was completed by the Kingston Community Drug & Alcohol Team. The report confirmed that Mr Banks was receiving treatment for alcohol dependency and was making good progress. The report further stated, inter alia, that Mr Banks had identified two triggers which may cause him to relapse: his home environment and lack of access to his son. The letter concluded by expressing the view that if Mr Banks were to relapse from alcohol, his physical, mental and emotional health would deteriorate significantly.[15]On February 14, 2007 Dr. Davidson of Mr Banks’ G.P. surgery wrote to Mr Nicholson to say that Mr Banks had a history of alcohol related liver cirrhosis, alcoholism, depression and asthma. He had quite severe medical problems as well as depression, he was seeing a doctor at Kingston Hospital in relation to his liver disease and he had recently had an inpatient admission due to a decomposition of liver function. The letter expressed the view that if Mr Banks was not compliant with his medication and specialist review then his condition could deteriorate rapidly and possible be fatal. Further, as a result of Mr Banks’ medication, which promoted urination and had a laxative effect, he required easy access to a bathroom. The G.P. also mentioned that Mr Banks had told her that he did not have much access to a kitchen and his medical conditions meant that it was important that he ate a healthy diet. There was a further concern that his room was cold and damp and this was potentially a problem in an asthma patient and could predispose him to developing a community acquired pneumonia. The G.P. noted that Mr Banks’ son was his “driving force” in his desire to give up alcohol and if his son could not stay with him at the premises, as the landlord had refused to let his son stay, this may result in a deterioration in Mr Banks’ condition. The letter concluded by stating that if the Council required any further information it should not hesitate to contact Dr. Davidson.[16]The notes attached to the Homelessness Application Form stated that Mr Banks’ file was left for Dr. Hinton on February 20, 2007 but that he had not read it. They also state that at some later time, Dr. Hinton rang the officer investigating Mr Banks’ case and said that Mr Banks was not vulnerable but that he might get into a higher band on the housing waiting list.

February 2007 Decision

[17]On February 23, 2007, the Council issued a letter pursuant to section 184, which found that Mr Banks was not homeless or threatened with homelessness: the facts that he was in shared accommodation, and that his condition meant that he was using the toilet more than normally and that the toilet was shared with a number of people, was not enough to make him homeless.

Review Decision

[18]On February 27, 2007 the Council received Mr Banks’ request for a review of the decision, and notified him of his right to make representations and also of his right to make representations if the Council considered that there was an irregularity in the decision and was minded nonetheless to make a decision which was against his interests.[19]On February 28, 2007 Dr. Hinton completed a Medical Assessment Form for the purpose of the Housing Needs Register which stated that Mr Banks did have medical priority, had moderate physical disability and mild mental health problems. Dr. Hinton commented that an HMO (House in Multiple Occupation)-type environment might affect matters and he agreed a low medical priority for self-contained accommodation.[20]On March 6, 2007 Mr Banks telephoned Mr Nicholson to say that he had been given 28 days’ notice by his landlord to quit. Mr Nicholson visited Mr Banks at home the next day. He noted the condition of the premises and Mr Banks showed the officer a packet of anti-depressants his G.P. had given him. Mr Nicholson was told that the notice to quit had been given verbally.[21]At about this time, the landlord (Mr Young S Kim) wrote a letter (which bears the date March 3, 2007), stating:
“Please accept this letter as a written notification that I wish to give you one months notice to vacate your room at the above address as per the notice period stated in our Agreement dated 3rd November 2006. It is becoming increasingly obvious that the accommodation is not suited to your needs regarding both; your current health problems and your need to have your son stay here during your access periods. Please vacate the property by 4th March [sic] 2007 taking all of your possessions and leaving the room in a clean and tidy state for the next occupier.”
[22]On March 13, 2007 Dr. Hinton completed a Medical Assessment Form, which noted that the information assessed was Mr Banks’ file, the letter from Kingston Community Drug & Alcohol Team, the home visit observations, and the Housing Needs Register medical assessment dated February 28, 2007. He noted the documents and stated that he agreed that Mr Banks’ current accommodation was not ideal but it was reasonable for Mr Banks to remain, applying the relevant banding. The risk of alcohol relapse was acknowledged but this had been factored into the banding.[23]The Council’s Homelessness Manager, Jason Carey, issued a decision on review dated March 20, 2007. His decision varied the original decision to a decision that Mr Banks was homeless in light of the notice to quit but upheld the decision that the Council did not have a duty to house Mr Banks. Mr Carey based that decision on a finding that Mr Banks did not have a priority need: inter alia, he found that Mr Banks did suffer from alcohol abuse but that he had been abstinent in recent months; he found that alcohol misuse alone did not render someone vulnerable; he found that Mr Banks had been diagnosed with depression, that he had been prescribed a standard dose of medication (citalopram 20mg) and that his depression was a result of his social circumstances in that he was unable to see his son; he found that neither his depression nor his other medical conditions would impair his ability to maintain himself so that he would be at risk of harm or injury; he found that on the basis of the information held there was no evidence to support the proposition that Mr Banks would be unable to fend for himself if street homeless, so that he would suffer injury or detriment; finally, he found that from the information provided, there appeared to be no other ground to suggest that Mr Banks was a vulnerable person or in a priority need category within the meaning of the Housing Act 1996, as amended.[24]On April 2, 2007, Dr. Davidson, having been provided with a copy of the review letter by Mr Banks, wrote to the review officer stating that she had tried to make contact the week before telephone but was unable to. The letter said:
“While I appreciate that alcohol, depression and asthma do not put him at risk, his diagnosis of alcohol related liver cirrhosis does put him at risk. This diagnosis carries with it considerable mortality and morbidity with a mortality rate of 65% at 5 years if the patient were to continue drinking, going down to 30% mortality rate at 5 years even with abstinence from alcohol. This is a very serious condition and I am concerned that if Mr Banks were to be street homeless, his health would deteriorate and put him at significant risk.”

Appeal

[25]Mr Banks appealed to the County Court. The grounds included these:(1) the Council was bound (but failed) to implement the requirements of Regulation 8(2) of the 1999 Regulations because the Review decision upheld the original decision but on different grounds;(2) even if Regulation 8(2) was not applicable, the rules of natural justice required that Mr Banks should have been given an opportunity to comment on those matters which the Council was minded to weigh against him, where those matters were not part of the original decision;(3) the Council failed to make any or any adequate inquiries into Mr Banks’ medical conditions.[26]On November 22, 2007 HHJ Crawford Lindsay QC dismissed each of Mr Banks’ grounds of appeal. He rejected the argument made on behalf of Mr Banks that the original decision (February 23, 2007) was defective and unlawful. He concluded that, although that decision was short, it was legally sustainable. The judge held that Regulation 8(2) of the 1999 Regulations comes into play only where the original decision can properly be attacked as defective. He concluded that in a case where the original decision is not open to criticism but is superseded by later events, Regulation 8(2) does not apply.[27]He also rejected the argument that the rules of natural justice required that an applicant in the position of Mr Banks should be told the substance of any potentially adverse decision against him, and should be given an opportunity to comment upon it. The judge accepted the argument for the Council that this would merely be reintroducing the requirements of Regulation 8(2) by another route.[28]As regards the third ground of appeal, the judge decided that it was for the Council to decide the scope and breadth of the inquiry process, and the court would only interfere if it were satisfied that no reasonable local authority could have failed to make those inquiries. A review of the facts showed that no such finding could be made, and that appropriate enquires had been made of Mr Banks and his medical advisers.

III Statutory background

[29]The duties of local housing authorities towards the homeless are set out in the Housing Act 1996, Part VII, as amended. If an authority has reason to believe that a person may be homeless or threatened with homelessness, it is under a duty to make such inquiries as are necessary to satisfy itself whether or not the applicant is eligible for assistance and what, if any, duty is owed to him: section 184(1).[30]In the exercise of its functions relating to homelessness and the prevention of homelessness, a local authority must have regard to any guidance as may be given by the Secretary of State: section 182. The current guidance (applicable in these proceedings) is the Homelessness Code of Guidance for Local Authorities, July 2006 (“Code of Guidance”).[31]If a local authority has reason to believe that an applicant may be homeless or threatened with homelessness, it must make such inquiries as are necessary to satisfy itself as to whether the applicant is eligible for assistance and if so, whether any duty and if so what duty, is owed to him: section 184(1), on which see, e.g. Cramp v Hastings BC [2005] EWCA Civ 1005, [2005] HLR 48, at [10] and [58].[32]If a person is not homeless, no duty is owed. If he is homeless and not in priority need, the authority must provide him with advice and assistance: sections 190(3), 192(2). If he is homeless and in priority need but became homeless intentionally, the authority must provide him with advice and assistance and secure accommodation long enough to give him a reasonable opportunity of securing his own accommodation: section 190(1), (2). If he is homeless, in priority need and did not become homeless intentionally, the authority must secure accommodation for him: section 193(1), (2).[33]A person has a priority need, inter alia, if he is “a person who is vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason …”: section 189(1)(c), on which see R v Camden LBC ex p Pereira (1997) 31 HLR 317, at 330; Osmani v Camden LBC [2004] EWCA Civ 1706; [2005] HLR 22, at [38]; Shala v Birmingham CC [2007] EWCA Civ 624; [2008] HLR 8. In cases where vulnerability is claimed for medical reasons it may be a necessary part of the authority’s inquiry processes to obtain, and consider, medical evidence. But the ultimate decision remains one for the authority: Osmaniv Camden LBC at [38(8)]. In Crawley BC v B (2000) 32 HLR 636 (CA), at 638, it was held that it was not irrational for an authority to decide not to consider whether an applicant is intentionally homeless when it decides that he does not have a priority need; it is open to an authority to conserve resources by not embarking on an inquiry that would be redundant.

Decision-making and review procedures

[34]The authority must notify the applicant of its determination of the application in writing and, so far as any issue is decided against his interests, inform him of the reasons for it: section 184(3).[35]By section 202 the applicant has a right of review against certain decisions, including “any decision of a local housing authority as to what duty (if any) is owed to him under sections 190 to 193 and 195 and 196 (duties to persons found to be homeless or threatened with homelessness)”: section 202(1)(b).[36]The Secretary of State is empowered to make provision by regulations as to the review procedure under section 202, and as to the circumstances in which an applicant is entitled to an oral hearing and to representation: section 203(1), (2). The applicant must be informed of the decision on the review: section 203(3).[37]The review procedure is governed by the 1999 Regulations. By Regulation 6(2), when a request for a review has been received, the local authority must:(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 it has not already done so, notify the applicant of the procedure to be followed in connection with the review.[38]The reviewing officer is not simply considering whether the initial decision was right on the material available when the decision was made. He may have regard to information relevant to the period before the decision but only obtained thereafter and to matters occurring after the initial decision: Mohamed v Hammersmith & Fulham LBC [2001] UKHL 57, [2002] AC 547, at [26].[39]By Regulation 8(2), if the reviewing officer “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 reviewing officer “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.”[40]The Code of Guidance states, at paragraph 19.13, that deficiencies or irregularities for the purposes of Regulation 8(2) would include:
“(i) failure to take into account relevant considerations and to ignore irrelevant ones; (ii) failure to base the decision on the facts; (iii) bad faith or dishonesty; (iv) mistake of law; (v) decisions that run contrary to the policy of the 1996 Act; (vi) irrationality or unreasonableness; (vi) procedural unfairness, e.g. where an applicant has not been given a chance to comment on matters relating to a decision.”

The applicant's right to appeal to the county court

[41]An applicant dissatisfied with the decision on review may appeal to the county court on any point of law arising from, inter alia, the review decision: section 204(1).[42]The appeal to the county court is, in effect, a judicial review, that is, the court is not in the position of primary fact finder, but is required to examine the decision of the authority in order to determine whether it was made lawfully. It includes not only matters of interpretation, but also the full range of issues which would otherwise be the subject of an application to the High Court for judicial review: Runa Begum v Tower Hamlets LBC [2003] UKHL 5; [2003] 2 AC 430, per Lord Bingham at [7].[43]The fact that a statutory procedure (related to fairness) may not apply is not decisive of whether there has been compliance with the obligation to act fairly: Hall v Wandsworth LBC [2004] EWCA Civ 1740, [2005] 2 All ER 192, at [40].

IV The appeal to the Court of Appeal

[44]Mr Banks appeals on three grounds:(1) the Council acted unlawfully in failing to comply with the procedures contained in Regulation 8(2), and/or the judge erred in finding that Regulation 8(2) was not engaged as there was no deficiency in the section 184 decision;(2) the Council failed to act in accordance with the principles of natural justice in that: (a) it failed to notify Mr Banks that it was considering whether it owed him a duty pursuant to section 190, section 192 or section 193 and whether, therefore, he had a priority need within the meaning of section 189(1); and/or (b) the information before the Council at the time it decided that Mr Banks did not have a priority need within the meaning of section 189(1) was insufficient for the purpose of ensuring Mr Banks had been heard on that issue, and/or the judge erred in finding that the principles of natural justice had been complied with in such circumstances;(3) the Council failed to make any or any adequate inquiries into Mr Banks’ medical conditions before reaching a decision on the question of priority need and/or the judge erred in finding that the Council’s inquiries were sufficient. Ground 1: The obligation to comply with the requirements of Regulation 8(2) A Mr Banks’ argument

Ground 1: The obligation to comply with the requirements of Regulation 8(2)

[45]For Mr Banks it is argued that the section 184 decision was deficient for these reasons. The decision was that the Council did not owe Mr Banks a duty as he was not homeless. The decision reached on the section 202 review was that the Council did not owe Mr Banks a duty to house him as he was not in priority need. As the reasons for and the basis behind the two decisions were different, this amounts to a deficiency. As the finding of no priority need was the basis for the decision in the section 202 review that no duty was owed, the lack of finding or consideration of the question of priority need in the section 184 decision is a deficiency, i.e. it is something lacking in that decision. The judge confused deficiency with irregularity.[46]As Mr Banks had not been told that the issue of priority need was under consideration, he lost the chance to submit further evidence and representations prior to the Council’s review decision. If the Council had complied with the requirements of Regulation 8(2), Mr Banks would have known that it was considering the issue of priority need. He would have had the opportunity to make representations on his medical conditions and how they affected his life. He could have obtained a further letter from his G.P. addressing the question of vulnerability, in the terms of the letter from Dr. Davidson dated April 2, 2007.

B The Council’s arguments

[47]For the Council it is argued that the judge was right for these reasons. Section 184 required the officer charged with making the initial decision to consider whether Mr Banks was a person who was homeless, eligible to receive assistance, in priority need and not intentionally homeless. A local housing authority is entitled to conserve its resources by not making inquiries into matters that it has decided have become otiose: Crawley BC v B [2000] HLR 636, at 647. The decision-maker was entitled to decide to issue his decision, concluding that Mr Banks was not homeless, without having to go on to consider the remaining questions relating to eligibility, priority need and intentionality.[48]What the Regulations require is an assessment of the original decision to determine whether it is flawed by some deficiency or irregularity (“something lacking”). If it is not, Regulation 8(2) has no part to play.[49]In the present case the allegation of a deficiency or irregularity is not directed towards the terms of the original decision but is based on the fact that, by the time that the review decision was made, the factual position had changed because Mr Banks had been served with a notice to quit by his landlord. This change in the factual matrix, occurring between the making of the original decision and the making of the review decision, did not amount to a deficiency or irregularity in the first decision, capable of triggering Regulation 8(2).[50]It was the obligation of the reviewer to decide this case according to the facts as they existed at the date of his review: Mohammed v Hammersmith & Fulham LBC [2002] AC 457 at [26]. A decision does not become deficient or irregular simply because there is a change of circumstances between one decision and the next, so requiring the authority to consider a different question on the review.[51]Priority need was an issue that would need to be decided on the review if Mr Banks was successful in satisfying the Council that he was now threatened with homelessness (and that was the reason for supplying the notice to quit to the reviewer). Mr Banks and the medical practitioners treating him had provided evidence in support of his claim to be in priority need and this was considered by the reviewer. It was always an issue that was live and Mr Banks was at liberty to make such points in relation to the issue as he chose. He was not deprived of any opportunity to make representations in this case and therefore the criticisms as to the procedure adopted here are not justified. Mr Banks was provided with the opportunities to persuade the Council to make a decision in his favour that the law requires. Ground 2: Whether the principles of natural justice were complied with A Mr Banks’ arguments

Ground 2: Whether the principles of natural justice were complied with

[52]This ground is of relevance only if Regulation 8(2) does not apply. If it does not apply, then natural justice demands that the applicant be aware of the matters that the local authority will base its decision on. Mr Banks was not provided with the opportunity to respond to matters which the Council intended to decide – and did decide – weighed against him in circumstances where the matters relied on had not been in issue in the original decision. Natural justice requires that the decision maker indicate that he was considering matters which had not been raised with Mr Banks to afford Mr Banks an opportunity to make representations on those matters.[53]An applicant cannot have been given an opportunity to be heard if he is unaware of the issue which is under consideration. In court proceedings, a party has to set out his case, so that the other party will know the issues, know what matters he has to address and those that the court will rule on. In this case, Mr Banks was unaware that priority need was an issue being considered by the Council.[54]As a matter of procedural fairness, Mr Banks should have been made aware that the Council was considering the question of vulnerability and have been given an opportunity to make representations on this. As this was something that was not considered in the original decision, Mr Banks had no idea this was something that was under “review”. Mr Banks has not had any opportunity to make representations about the relevant finding in the decision which dissatisfies him, as the current finding, that he does not have a priority need, formed no part of the section 184 decision.[55]Just because there was some documentation before the Council which provided information as to priority need did not mean that there would not have been more, and did not mean that Mr Banks had not been prejudiced by the lack of opportunity to put in further information, e.g. the letter of April 2, 2007 from Dr. Davidson. Further, submissions could have been made in relation to priority need. Mr Banks was prejudiced by the failure of the Council to notify him that priority need was an issue.[56]Further, if the judge was right to have found no breach of natural justice, then every time an applicant makes an application to a local authority as homeless under Part VII of the Housing Act 1996, or every time an applicant requests a review, he will have to put in representations and documentation on any issue the local authority may go on to consider, i.e. homelessness, eligibility, priority need, intentional homelessness, local connection. Natural justice was not complied with simply because the issue of priority need was “in the arena” and was one of the matters the Council had to go on to consider if it was persuaded on review that Mr Banks was homeless. This would place an undue burden on applicants, many of whom act in person. They have only a limited time to put in submissions and obtain documentation and if there is an onus to address all issues that the local authority could go on to consider, it would be incredibly difficult for applicants and those who advise them to protect their position.

B The Council’s arguments

[57]There is no general principle that a homeless applicant has a right to a hearing when seeking a review of an adverse section 184 decision. An applicant has the right to be heard in support of his review request only where there is some deficiency or irregularity in the first decision and the reviewing officer is minded nonetheless to make a decision against his interests: Regulation 8(2) of the 1999 Regulations.[58]Mr Banks had submitted a review request challenging the conclusion that he was not homeless. In support of that request he had produced a notice to quit from his landlord. This was intended to, and did, dispose of the issue of homelessness but necessarily opened up the issues of priority need and intentionality to be decided on the review: see Mohammed v Hammersmith & Fulham LBC. Mr Banks was well aware (and had always been aware) that priority need was very much in issue on his application and he had submitted letters from his GP and from the Kingston Community Drug & Alcohol Team in relation to it. He had raised with the officer conducting the home visit in early March 2007 his medical problems and had shown the medication that he was taking.[59]The rules of natural justice did not impose upon the Council an obligation to invite representations from Mr Banks on specifically identified issues. They simply required that Mr Banks should be heard on the review - he should have been given a full and fair opportunity to be heard: General Medical Council v Spackman [1943] AC 627, at 644. It cannot realistically be said that he was denied a proper opportunity of dealing with these matters. He was given the chance to make representations on the review. Ground 3: The adequacy of inquiries A Mr Banks’ arguments

Ground 3: The adequacy of inquiries

[60]The only consideration of Mr Banks’ vulnerability by any medical adviser on behalf of the Council was in relation to the 2006 application, where further information was requested, and orally on February 22, 2007. At the time he gave the oral advice, Dr. Hinton had not seen the letter from Dr. Davidson of February 14, 2007, nor the letter from the Kingston Community Drug & Alcohol Team.[61]Despite referring those letters to Dr. Hinton for his comments, the Council never asked him to consider them in relation to the issue of Mr Banks’ vulnerability. On February 28, 2007 Dr. Hinton took account of Dr. Davidson’s letter, but the form he completed was for the purpose of the Housing Needs Register, not Mr Banks’ application under Part VII of the Housing Act 1996. On March 13, 2007 Dr. Hinton considered the letter from Kingston Community Drug & Alcohol Team, the notes of the home visit on March 7, 2007, Mr Banks’ file and the Housing Needs Register medical assessment dated February 28, 2007, but his form only addressed the suitability of Mr Banks’ accommodation, not his vulnerability.[62]The Council had initially sought Dr. Hinton’s view on the effect of Mr Banks’ medical conditions, for the purpose of assessing his vulnerability: this led to the referral of Mr Banks’ file and the oral advice of February 22, 2007. The Council subsequently failed in its duty to make inquiries by not seeking an updated opinion in the light of the further medical information it had received. Despite the request from Dr. Davidson, no further questions were raised of her and there was no follow up to her report. No steps were taken to put her in touch with Dr. Hinton nor he with her. Neither did the Council interview Mr Banks after receiving the letters from Dr. Davidson and the Kingston Community Drug & Alcohol Team.

B The Council’s arguments

[63]This ground of appeal fails properly to take into account the verbal report from the Council’s medical adviser, received in February 2007 and recorded in the housing file, which expresses the view that Mr Banks is not in priority need for housing. It is for the investigating authority to decide the scope and breadth of the inquiry process. Before the court will overturn a decision, it must be satisfied that no reasonable authority could have failed to make those inquiries: Cramp v Hastings BC at [58].[64]In this case the Council had the benefit of a detailed letter from Mr Banks’ GP dated February 14, 2007 together with the information from the Kingston Community Drug & Alcohol Team. That information had been supplied to the Council’s medical adviser who had been contacted in relation to Mr Banks’ condition on 3 occasions over a 6 month period. In those circumstances it cannot be said that no reasonable authority would have failed to make further inquiries of the medical adviser or Mr Banks’ GP in relation to his condition. The fact that further information may have been forthcoming if it had been sought is nothing to the point. It was not irrational to proceed to take a decision on the basis of the information to hand, and the judge was correct so to find. Reliance by Mr Banks on a letter written over a week after the review decision was arrived at and published is misconceived. Information post-dating a decision cannot be used to challenge the lawfulness of the decision.

V Conclusions

[65]The procedural safeguards in the 1999 Regulations are of the highest importance, and any significant departure from the procedural rules prejudicial to the applicant would afford a ground of appeal: Runa Begum v Tower Hamlets [2003] UKHL 5, [2003] 2 AC 430, at [9] per Lord Bingham.[66]By Regulation 8(2), if the reviewing officer “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 reviewing officer “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.”[67]The minded-to notice gives an opportunity to the applicant to try to persuade the review officer that his reasoning for his provisional conclusion is mistaken and is, at the very least, potentially of great benefit to an applicant, and to be deprived of that right is or may be seriously prejudicial: Lambeth LBC v Johnston [2008] EWCA Civ 690, at [53] per Rimer LJ.[68]What is the deficiency which will trigger the operation of Regulation 8(2)? This was the subject of an extensive discussion by Carnwath LJ in Hall v Wandsworth LBC [2004] EWCA Civ 1740; [2005] 2 All ER 192, at [26] et seq. He said: “26. … The thinking behind such a requirement seems to be that a bare right to make representations on the first decision will not be sufficient, if that decision was itself flawed in some respect, so that it does not represent a full and reliable consideration of the material issues. In that event the applicant’s rights are reinforced in two ways: first, by requiring the reviewing officer to give advance notice of a proposed adverse decision and the reasons for it; and secondly, by allowing the applicant to make both written and oral representations on it. 27. The current regulations replaced the original 1996 regulations … The only significant change was that … the 1996 regulation referred simply to an ‘irregularity’, rather than a ‘deficiency or irregularity’ as in the 1999 version. There appears to have been no published explanation for the change. We were not referred to any parallel for this formula in other statutes. The most likely inference is that it was intended to reinforce the contrast in the regulation between a defect in the decision itself, and one in ‘the manner in which it was made’; in other words, between the substance of the decision, and the procedure. The word ‘irregularity’ may have been seen as more apt to describe the latter; and the word ‘deficiency’ added to make clear that the trigger might also be a substantive defect in the decision itself, such as an error of law or a failure to take some material factor into account. … 29 … The word ‘deficiency’ does not have any particular legal connotation. It simply means ‘something lacking. … On the other hand, the ‘something lacking’ must be of sufficient importance to the fairness of the procedure to justify an extra procedural safeguard. Whether that is so involves an exercise of ‘evaluative judgment’ (see Runa Begumv Tower hamlets London BC [2003] 1 All ER 731 at [114], [2003] 2 AC 430 at [114] per Lord Walker of Gestingthorpe), on which the officer’s conclusion will only be challengeable on Wednesbury grounds. 30 To summarise, the reviewing officer should treat reg 8(2) as applicable, not merely when he finds some significant legal or procedural error in the decision, but whenever (looking at the matter broadly and untechnically) he considers that an important aspect of the case was either not addressed, or not addressed adequately, by the original decision-maker. In such a case, if he intends to confirm the decision, he must give notice of the grounds on which he intends to do so, and provide an opportunity for written and (if requested) oral representations.” …[69]A new version of the Code was issued in 2006, which reflected the decision in Hall v Wandsworth LBC: “The reviewer must consider whether there is ‘something lacking’ in the decision, i.e. were any significant issues not addressed or addressed inadequately, which could have led to unfairness” (para 19.14).[70]Can it be said that there was a deficiency in the original decision by virtue of the fact that between that decision and the review decision Mr Banks became homeless, and consequently the original decision was, or became, deficient because it had not addressed the question of priority need?[71]A literal interpretation of Regulation 8(2) would make it difficult to reach the conclusion that “there is a deficiency … in the original decision.” On a literal approach the natural meaning of the words suggests that the focus is on the position as at the date of the decision, and my initial inclination was that there would be no deficiency in the type of case with which this court is concerned. But an important objective of Regulation 8(2) is to ensure that, where the reviewing officer is minded to confirm a decision on different grounds, the applicant should be given an opportunity to make representations. I was convinced by the argument for Mr Banks that a purposive construction should be given to Regulation 8(2) to ensure that its objective is achieved. Mr Banks having become homeless, the original decision had become deficient in that it did not address the question of priority need. In fact (and I shall revert to this point) in cases of this kind, where there has been a change of circumstances, a fresh application can be made, and the objective can be achieved equally in that way. But this is a system in which the applicant will be acting in person, and I consider that Regulation 8(2) should be interpreted so as to ensure that the individual is afforded the procedural safeguard even if the review route is taken.[72]Consequently I am satisfied that, although the original decision itself cannot be faulted, it came to have a deficiency which was of sufficient importance to justify the additional procedural safeguard, in the sense that further representations made in response could have made a difference to the decision that the reviewing officer had to make.[73]It follows that I would allow the appeal on the first ground. The second ground becomes irrelevant, and the third ground relates to matters which will have to be the subject of further factual enquiry.[74]I cannot avoid expressing the view that this case should never have got this far and that the substantial public funds which have been devoted to these appeals appear to have been wasted. It became common ground in this appeal that, irrespective of any right which Mr Banks may have had to make representations in the review process, he had, by virtue of the change in his position after he had been given notice to quit and had left his home, the right to make a fresh application. In the course of that application the question of priority need would inevitably have to be addressed and (unless he had become intentionally homeless) decided. Consequently the outcome of this appeal would have made no difference to Mr Banks’ substantive rights.[75]I agree.[76]I agree also.

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