London Borough of Lambeth v Johnston [2008] EWCA Civ 690

[2008] EWCA Civ 690Case No 2008/0172
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
Case No 7WT10206
ON APPEAL FROM THE WANDSWORTH COUNTY COURT
Mr Recorder Barker
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 19/06/2008
Before
LADY JUSTICE SMITHLORD JUSTICE LAWRENCE COLLINSLORD JUSTICE RIMER
Between
THE MAYOR AND BURGESSES OF THE LONDON BOROUGH OF LAMBETHAppellantROBERT STEWART JOHNSTONRespondent
(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 Jon Holbrook (instructed by Lambeth Legal Services) for AppellantMr Robert Latham (instructed by Goldbergs) for RespondentHearing Hearing date: 3 April 2008
Judgment

Introduction

[1]This appeal is by The Mayor and Burgesses of the London Borough of Lambeth (“Lambeth”) against a decision of Mr Recorder Barker dated 31 July 2007. The matter before the Recorder was an appeal by Robert Johnston under section 204 of the Housing Act 1996 by which he challenged a decision dated 1 February 2007 made by Ms Sharman Samuels, a Lambeth review officer. The matter before her was a review under section 202 of Lambeth’s earlier decision made on 19 September 2005 under section 184 that Mr Johnston did not have “priority need” for assistance as a homeless person within the meaning of section 189. Ms Samuels upheld that decision. The Recorder allowed Mr Johnston’s appeal against her decision, which he quashed, and awarded Mr Johnston his costs of the appeal incurred since 23 August 2006.[2]The Recorder based his decision on the ground that Lambeth had breached regulation 8(2) of the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999. Lambeth, which appeared before us by Mr Holbrook, submitted that his decision was flawed such that it should be reversed and Ms Samuels’ decision restored. Mr Latham, for Mr Johnston, submitted that the Recorder’s decision was correct. Both counsel also appeared before the Recorder.

The legislation

[3]Part VII of the Housing Act 1996 provides, so far as material: “184 Inquiry into cases of homelessness or threatened homelessness(1) If the local housing authority have reason to believe that an applicant may be homeless or threatened with homelessness, they shall make such inquiries as are necessary to satisfy themselves – (a) … (b) … whether any duty, and if so what duty, is owed to him under the following provisions of this Part. … (3) On completing their inquiries the authority shall notify the applicant of their decision and, so far as any issue is decided against his interests, inform him of the reasons for their decision. … (5) A notice under subsection (3) … shall also inform the applicant of his right to request a review of the decision and of the time within which such a request must be made (see section 202). … 188 Interim duty to accommodate in case of apparent priority need (1) If the local housing authority have reason to believe that an applicant may be homeless, eligible for assistance and have a priority need, they shall secure that accommodation is available for his occupation pending a decision as to the duty (if any) owed to him under the following provisions of this Act. … (3) The duty ceases when the authority’s decision is notified to the applicant, even if the applicant requests a review of the decision (see section 202). The authority may secure that accommodation is available for the applicant’s occupation pending a decision on a review. 189 Priority need for accommodation (1) The following have a priority need for accommodation – … (c) a person who is vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason …. 192 Duty to persons not in priority need who are not homeless intentionally (1) This section applies where the local housing authority – (a) are satisfied that an applicant is homeless and eligible for assistance, and (b) are not satisfied that he became homeless intentionally, but are not satisfied that he has a priority need.(2) The authority shall provide the applicant with (or secure that he is provided with) advice and assistance in any attempts he may make to secure that accommodation becomes available for his occupation. … 193 Duty to persons with priority need who are not homeless intentionally (1) This section applies where the local housing authority are satisfied that an applicant is homeless, eligible for assistance and has a priority need, and are not satisfied that he became homeless intentionally. (2) Unless the authority refer the application to another local housing authority (see section 198), they shall secure that accommodation is available for occupation by the applicant.(3) The authority are subject to the duty under this section until it ceases by virtue of any of the following provisions of this section. … 202 Right to request review of decision (1) An applicant has the right to request a review of – … (b) any decision of a local housing authority as to what duty (if any) is owed to him under sections 190 to 193 … (duties to persons found to be homeless or threatened with homelessness). … (2) There is no right to request a review of the decision reached on an earlier review. (3) A request for a review must be made be made before the end of the period of 21 days beginning with the day on which he is notified of the authority’s decision or such longer period as the authority may in writing allow. … 203 Procedure on review (1) The Secretary of State may make provision by regulations as to the procedure to be followed in connection with a review under section 202. …(4) If the decision is – (a) to confirm the original decision on any issue against the interests of the applicant, or (b) … they shall also notify him of the reasons for the decision.(5) In any case they shall inform the applicant of his right to appeal to a county court on a point of law, and of the period within which such an appeal must be made (see section 204). … 204 Right of appeal to county court on point of law (1) If an applicant who has requested a review under section 202 – (a) is dissatisfied with the decision on the review, or (b) is not notified of the decision on the review within the time prescribed under section 203, he may appeal to the county court on any point of law arising from the decision or, as the case may be, the original decision … (3) On appeal the court may make such order confirming, quashing or varying the decision as it thinks fit. … (a) … (b) … whether any duty, and if so what duty, is owed to him under the following provisions of this Part. … … (c) a person who is vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason …. (a) are satisfied that an applicant is homeless and eligible for assistance, and (b) are not satisfied that he became homeless intentionally, … (b) any decision of a local housing authority as to what duty (if any) is owed to him under sections 190 to 193 … (duties to persons found to be homeless or threatened with homelessness). … (a) to confirm the original decision on any issue against the interests of the applicant, or (b) … (a) is dissatisfied with the decision on the review, or (b) is not notified of the decision on the review within the time prescribed under section 203,

The Regulations

[4]The Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 were made pursuant to the powers conferred by inter alia section 203 of the Act. Part III, headed “Homelessness”, provides so far as material:
“Request for a review and notification of review procedure 6.—(1) A request for a review under section 202 shall be made – (a) to the authority, where the original decision falls within section 202(1) … (b) … (2) Except where a case falls within regulation 7, 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. …”
Procedure on review 8.—(1) The reviewer shall, subject to compliance with the provisions of regulation 9, consider – (a) any representations made under regulation 6 … and (b) any representations made under paragraph (2) below. (2) If the reviewer considers that there is a deficiency or irregularity in the original decision, or in the manner in which it was made, but is minded nonetheless to make a decision which is against the interests of the applicant on one or more issues, the reviewer shall notify the applicant – (a) that the reviewer is so minded and the reasons why; and (b) that the applicant, or someone acting on his behalf, may make representations to the reviewer orally or in writing or both orally and in writing. Notification of the decision in a review 9. –-(1) The period within which notice of the decision on a review under section 202 shall be given under section 203(3) to the applicant shall be – (a) eight weeks from the day on which the request for the review is made, where the original decision falls within section 202(1)… (b) … ; (2) The period specified in paragraph (1) may be such longer period as the applicant and the reviewer may agree in writing.” (a) to the authority, where the original decision falls within section 202(1) … (b) … (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. …” (a) any representations made under regulation 6 … and (b) any representations made under paragraph (2) below. (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.

Background

(b) … ; Background

[5]Mr Johnston is 42. His marriage broke down in 2001, since when his life has become increasingly chaotic. He has a history of alcohol and drug abuse. In September 2004 he had been sleeping rough in Camden, with little support from family or friends. On 14 September 2004 he was assessed by Camden’s Parker House Assessment Centre. The assessment form recorded that about a month before, because of his alcohol problem, he had lost his job as a chef. He had been street homeless in Camden since then and had spent his time drinking. It also recorded that he said he did not use drugs, although he had used speed for two or three years until 1989, when he was convicted of possession of amphetamines and given 120 hours community service. Camden found he had formerly had a local residential connection with Lambeth, it referred him to Lambeth’s Homeless Persons Unit and terminated his licence to occupy his hostel accommodation. He had been in it for just three days.[6]On 15 September 2004 Mr Johnston applied to Lambeth for accommodation under Part VII of the Act. He was interviewed on that day by Mr Nyeko Moro. Lambeth provided him with temporary hostel accommodation at 21 Effra Road, London SW2 (section 188(1)). On 21 October 2004 he was interviewed by another caseworker, Danielle Samuels, who completed a homelessness assessment form for him. It recorded that he informed her of his drinking problem and how it had caused him to lose his job and become street homeless. She was satisfied he was “vulnerable” and had a priority need (section 189(1)(c)). She considered referring his case on to Reading, with which he was believed to have a local connection (section 198), but no reference was made.[7]After that nothing material happened for 11 months, until on 9 September 2005 Mr Johnston’s then caseworker, Ms Ali-Balogun, noted it was now too late to refer him to Reading. Her view was that, whilst he had been street homeless for some time and was eligible for assistance, he had no priority housing need because he was not “vulnerable” (section 189). The case notes can be read as suggesting that she interviewed him on 9 September 2005 but it was accepted before us that she probably did not. Mr Holbrook did not expressly concede that there was no such interview, but I shall come in due course to Mr Johnston’s witness statement in which he said that there was not, and there is no evidence from Lambeth to gainsay that. We must proceed on the basis of Mr Johnston’s unanswered evidence.

The section 184 decision of 19 September 2005

[8]On 19 September 2005 Ms Ali-Balogun made a decision under section 184 that Mr Johnston was not in priority need. Her decision letter, addressed to him at Effra Road, was to the following effect. Lambeth accepted that he was homeless, or threatened with homelessness (section 175), and was eligible for housing assistance. But it did not accept that he was in priority need “as you do not fall under any of the specified categories of priority need groups … as defined by section 189 ….” The letter listed those categories, including the section 189(1)(c) category, upon which Mr Johnston relied, claiming that he was vulnerable as a result of some “other special reason” within the meaning of that sub-paragraph. The letter continued:
“The term vulnerable is interpreted as meaning ‘less able to fend for oneself so that injury or detriment will result where a less vulnerable person will be able to cope without harmful effects.’ In your case the Council does not believe that there is a vulnerability and that if there is it is attributable to any of the factors set out in the Act or the extended statutory instruments.”
[9]The letter said that, at his interview (not one with Ms Ali-Abogun: presumably that with Ms Samuels in October 2004), “you mentioned having a long history of alcohol dependency, you did not mention that you were on any form of medication nor receiving treatment or counselling. You resumed alcohol abuse out of your own volition.” It continued:
“This authority has taken into consideration the decision reached in R v. Camden LBC ex parte Pereira (1998) 20 May CA, that the test which should be applied when assessing vulnerability under section 192(2) [sic: the reference should have been to section 189(1)(c)]… is whether the applicant, is when homeless, less able to fend for himself than his/her peers so that injury or detriment to him will result, when a less vulnerable person would be able to cope without harmful effect. As already stated, after care consideration [sic] of all factors and in light of your circumstances this Council is of the view that you are not in priority need. We are satisfied that not only can you find and keep accommodation but also that you are not less able to fend for yourself in coping with the state of homelessness generally. I am therefore satisfied that you are no less able to fend for yourself if you are homeless, or in finding and keeping accommodation. I do not accept that when homeless, you will suffer injury or detriment, given your circumstances, where a less vulnerable person would be able to without harmful effects. I have also considered any social factors you may have and am satisfied that there are non [sic] that would prevent you from securing and maintaining your own accommodation. I am satisfied therefore that you are not vulnerable for any other special reason.”
[10]The letter advised Mr Johnston that, if he was dissatisfied with the decision, he had a right to request Lambeth to review it under section 202. Any request should be made in writing within 21 days. He was told that, now that the decision had been made, Lambeth was no longer required to provide him with his current temporary accommodation (section 188(1)). Lambeth had carried out no assessment of, or inquiries in relation to, Mr Johnston since those made in October 2004.[11]The decision letter was sent to Mr Johnston at the Effra Road hostel but he did not receive it. That was because he had been evicted from there on 17 May 2005. When he had asked Lambeth why, he was told it was an error, following which it re-housed him at 46 Gowlett Road, London SW15. He learnt of the section 184 decision when he received a letter there dated 2 November 2005 from Lambeth referring to “the section 184 notification” and informing him that his occupation would terminate on 30 November 2005.[12]Mr Johnston promptly asked Mainliners SMART Service (“SMART”) for help. That is a direct access street drug agency funded by Lambeth Primary Care Trust to work with past or current drug users in the South Lambeth PCT area. On 9 or 16 November 2005 (perhaps both: there are two virtually identical letters of each day), Soraia Baptista, a Senior Project Worker at SMART, wrote to Lambeth asking for a section 202 review of the section 184 decision (both letters were also signed by Mr Johnston). She explained that he had been a client since 12 September 2005 and attended regularly for key-work sessions and support. He was being prescribed methadone by his GP, Dr Patel. She asked Lambeth to continue the provision of interim accommodation pending the completion of the review (section 188(3)).[13]By way of justification, Ms Baptista offered her opinion that Mr Johnston was in priority need as vulnerable. She said that when he first presented at SMART he reported that he had been dependent on heroin and crack cocaine for a year, using both substances intravenously, and also on alcohol, drinking 24 units a day. He was in the course of being referred to a specialist alcohol service. His health had deteriorated and he was unable to work. He had said that he started using drugs after the breakdown of a 10-year relationship as a way of coping with intrusive negative thoughts and blocking out painful memories, but she said their use was compounding his emotional and physical fragility. He had been underweight, although during his time at SMART he had made excellent progress. He was stable on his methadone treatment programme, was no longer using drugs intravenously and was reducing his alcohol intake. He nevertheless remained extremely vulnerable and his homelessness greatly exacerbated the risk of relapse. She said he would have difficulty in finding and maintaining accommodation in the private sector and she was concerned about the possible impact on him of a negative decision on his housing application. She could “not stress enough the importance suitable secure accommodation plays in aiding the recovery of substance mis-users.”[14]Lambeth also received a letter dated 7 November 2005 from Dr Patel, who advised that Mr Johnston was suffering two severe problems: drug dependence (heroin) and alcohol dependence. Dr Patel wrote:
“He is presently enrolled in a drug rehabilitation service at my practice and he is making very good progress with this. He has stopped (almost) his drug use (with methadone substituting) and had reduced his alcohol intake. I think that an integral part of this improvement in his situation is the fact that he is housed presently in a stable environment. I consider him to be extremely vulnerable as if he were to be made homeless, he would return to the previous levels of drug use and alcohol also, putting his present health at risk and posing a greater risk of deterioration in his mental health.”
[15]It thus now emerged that Mr Johnston’s problems were not confined to alcohol abuse, but included drug dependency, although in September 2004 he had told Camden otherwise and had not previously told Lambeth the truth.[16]Whether or not Mr Johnston’s request for a section 202 review was out of time (section 202(3)), no time point was taken by Lambeth. Pending the decision on the review, his interim accommodation was continued at an address in Peckham. On 20 December 2005 he signed a statement saying he was drug and alcohol dependent and he authorised Lambeth to contact Dr Patel for further information about his dependency. He said he was attending SMART at least once a week with a caseworker and had “had a drug dependency using heroin intravenously for about 2 years [i.e. since about December 2003] and an alcohol dependency for about 5 years drinking at least 8 cans of strong lager a day and spirits.” He also attended a further interview with his Lambeth caseworker, Danielle Samuels.[17]On 4 January 2006 Lambeth referred the case to the Council Medical Officer, Dr Singh, for her opinion. On 5 January 2006 Dr Singh (a medical adviser with Nowmedical) provided her opinion as to Mr Johnston’s “Homelessness: vulnerability on medical grounds.” She had considered Dr Patel’s letter of 7 November 2005 and a certificate from him dated 9 December 2005 recording that he had seen Mr Johnston the day before and had signed him off work for eight weeks because of his drug dependence. She also had Mr Johnston’s December statement. Her opinion was as follows:
“DRUG AND ALCOHOL ABUSE The applicant states that he is dependent on drug (heroin) and alcohol; however there are no apparent secondary medical complications of his drug and alcohol abuse and this is behaviour of his choice. There are no other relevant medical issues. Based on the information given, I see nothing to significantly impede his reasonable function nor impair his ability to fend for himself, and I make no housing recommendation.”
[18]Dr Singh gave further advice to Lambeth on 16 February 2006. She had in the meantime also considered Ms Baptista’s letter of 16 November 2005 and her further letter of 28 November 2005 (which does not add materially to the earlier one). Dr Singh said that no material information had been provided that was not previously known and she stood by her earlier opinion.

The first review decision: 22 February 2006

[19]On 22 February 2006 Mrs Sylvia Bourke, a Lambeth Assessment and Customer Services Manager, wrote to Mr Johnston with what purported to be her decision on the section 202 review of the section 184 decision of 19 September 2005. It later emerged that the decision maker was in fact Dupe Awodesu. The decision was to uphold the decision that Mr Johnston was not in priority need. Mrs Bourke concluded her letter by advising Mr Johnston that Lambeth had no duty to secure accommodation for him. She also advised him of his right, if dissatisfied, to appeal to a county court on any point of law arising from either the original section 184 decision or the review decision (section 204). There is no need to detail the reasoning in the review decision.[20]On 24 February 2006 Lambeth gave Mr Johnston notice terminating his occupation of his Peckham accommodation on 24 March 2006 but in the event Lambeth continued his interim accommodation pending the outcome of his appeal to the county court against the review decision. It is not the decision on this appeal that is the subject of the present appeal, but that of a later appeal.

The first section 204 appeal

[21]This appeal came before His Honour Judge Walker in the Wandsworth County Court on 23 August 2006. Both sides were represented by counsel. Judge Walker allowed the appeal with costs and quashed the review decision. There is no approved transcript of his judgment, but two notes of it are before us and neither counsel suggested they do not do justice to the judgment.[22]The judge said the key issue was whether Mr Johnston was in priority need. The test was whether he was “when homeless, less able to fend for himself than the ordinary homeless person so that injury or detriment to him will result when a vulnerable man would be able to cope without harmful effects” (R v. London Borough of Camden, ex parte Pereira (1998) 31 HLR 317, per Hobhouse LJ, at 330). The powers of the court on appeal were akin to those of the High Court when conducting a judicial review. The court was not the primary fact finder and could only interfere if there had been an error of law.[23]There were two issues in the appeal. First, that at the time of the original section 184 decision in September 2005 there had been a serious breach of the duty to make inquiries as Lambeth had not considered Mr Johnston’s circumstances for nearly a year. Lambeth had disputed this but there was no evidence from it on the point. Had the judge not found against Lambeth on the second issue, he would have adjourned the hearing so as to enable further evidence to be filed. But his view was that if Lambeth had not interviewed Mr Johnston during that time, that would have been a serious procedural irregularity and it would have been right to quash Lambeth’s decision on that ground alone. The judge’s view was that this would have represented a breach of regulation 8(2), although the notes of his judgment do not explain why. I infer that he had in mind that(i) there would, on that hypothesis, have been an irregularity in the section 184 decision;(ii) this should have been obvious to the reviewer;(iii) as the reviewer was minded to make a decision adverse to Mr Johnston, -- by upholding the decision – the reviewer should have forewarned him of that, giving the reasons why;(iv) had the reviewer done that, Mr Johnston would then have had the opportunity to make representations as to why the decision should not be upheld; but(v) the reviewer did not do that and so Mr Johnston was prejudiced.[24]The judge concluded, however, that it was not necessary to decide this point because of his conclusion on the second issue. That was whether the decision on the review was Wednesbury unreasonable. He considered the material before the reviewing officer. The striking features of the decision were(i) its proposition that Mr Johnston’s medical condition resulted from behaviour of choice;(ii) its reliance on Dr Singh’s findings, even though the reviewing officer had a duty to consider the different strands of evidence, including any in conflict with those findings; and(iii) its statement that Mr Johnson’s drug problem had been resolved. The judge concluded that these considerations made the decision Wednesbury unreasonable. The SMART letters showed that Mr Johnston continued to suffer from severe drug and alcohol problems and that his drug dependency desperately needed to be treated; that whilst there had been progress with his treatment, it was far from complete; and the judgment of Dr Patel and SMART was that he would be vulnerable to relapse if street homeless. Dr Singh’s description of his problems being related to behaviour of choice was inappropriate and came close to the idea that no drug addict could be vulnerable. Her letters did not address the unfinished nature of Mr Johnston’s treatment and were an incomplete analysis of his situation.

The second review of the section 184 decision

[25]The effect of Judge Walker’s decision was to require Lambeth to carry out a second review of the September 2005 section 184 decision that Mr Johnston was not in priority need. On 31 August 2006 J.C. Gorringe & Co (“Gorringe”), his solicitors, wrote to Lambeth confirming that, as agreed, “the eight week review period should commence on the 23 August 2006.” They calculated it should end on 18 October 2006, adding “We would hope, especially in the light of the judge’s comments, that your clients will see fit to make a fresh review decision well within that eight week period.” It is a fair inference that the comments referred to at least included the judge’s views that – if there had been no further interview of Mr Johnston between 21 October 2004 and the section 184 decision on 19 September 2005 -- that decision would have been procedurally flawed. Lambeth’s response, on 7 September 2006, was to ask if Gorringe had any further representations to make in respect of the new review decision. Gorringe replied on 13 September 2006 that it was not their then intention to make further representations. At no point did Lambeth notify Gorringe what procedure it was proposing to adopt on the second review. That omission involved a breach of regulation 6(2)(b). On 10 November 2006 there was an agreed extension of the review period until 24 November 2006, and it was later consensually extended to 31 January 2007.[26]On 1 November 2006 Ms Sharman Samuels interviewed Mr Johnston. It was Ms Samuels who made the eventual section 202 review decision, although Mr Johnston did not know at the time that she was the review officer, nor did Gorringe. Mr Johnston informed her that he was still drinking and using heroin. He also signed a medical assessment form. He described himself in it as suffering from alcohol and heroin dependency and from depression because of the breakdown of a long-term relationship. He felt low every day, had no energy and had very low self-esteem. “In fact I hate myself.” He said he was on a methadone programme, was trying to reduce his heroin and alcohol intake and “trying very hard to overcome everything.”[27]On 29 November 2006 Ms Whitehead of SMART provided Lambeth with an updated report on Mr Johnston. That was not commissioned by Mr Johnston by way of further representations on his behalf, it was made as a result of an express request by Lambeth. Ms Whitehead explained her own experience. She explained that when Mr Johnston presented to SMART in September 2005 he reported he had had an alcohol problem for over 10 years but had only been using heroin for a year. Dr Patel had prescribed him methadone and he had been on a treatment programme until July 2006, although it had no significant impact on his drug use: he continued to use heroin and to drink. He had little confidence to cope without using substances. He had not been prescribed medication since July 2006 but still accessed support at SMART. He was now re-starting a substitute treatment programme. Ms Whitehead described the breakdown of his marriage, that he had a daughter with whom he was not in contact, that he had a poor relationship with his parents and sister and how he lost his job as a chef because of his alcohol problem. Her opinion was that he was in priority need as being extremely vulnerable. He was depressed and tearful. He had little support and his only friends were those with like dependencies. He had overdosed in October 2005 and remained at risk of doing so again. He wanted to get back into employment but saw little hope of that so long as he was homeless. Her opinion was that “the chances of Mr Johnston being able to stabilise on his treatment programme and improve his health and well being are remote if he does not have secure suitable accommodation.” He remained extremely vulnerable. He was suffering from severe depression and anxiety.[28]On 19 December 2006 Nowmedical – this time by Dr Keen – provided their re-assessment of Mr Johnston’s case. Dr Keen summarised the drug abuse position, referring to the fact that Mr Johnston was being prescribed methadone and “as such is being provided with the methodology to obviate the need to consume illicit drugs.” He wrote:
“This requires daily attendance at a chemist and regular appointments at his support agency only, which does not seem to me a particularly onerous undertaking, and hence I can see no particular reasons why homelessness should effect [sic] this compliance. There are no substantive or irreversible secondary medical complications of his drug abuse, and hence this is not primarily a medical issue in this case.”
As for alcohol abuse, Dr Keen said there were no apparent secondary medical complications, so that this was likewise not primarily a medical issue. Dr Keen then referred to Mr Johnston’s depressive mood and the symptoms of depression which Ms Whitehead had listed. He noted the absence of any confirmed diagnosis of depression or other mental illness and that Mr Johnston was not in receipt of any specific anti-depressant or other treatment. There was no evidence that he suffered from a severe mental illness “and nothing to significantly impede his daily activities nor impair his rational thought or cognitive function.” Dr Keen’s conclusion was as follows:
“In summary, whilst I acknowledge the broader social issues in this case, I see no specific medical issues to impair the applicant’s ability to fend for himself if homeless, and mindful of Pereira, I make no housing recommendation. For the reasons given above, then the applicant appears to be provided with the necessary mechanisms to avoid opiate misuse and having considered this matter, I make no recommendations on these grounds either. Finally, I note the applicant has previously demonstrated his ability to fend for himself, and in particular maintained skilled employment as a chef; it appears that this employment was lost because of his substance abuse only and this aside, there appear no other underlying issues to impede his daily activities. I make no housing recommendation.”
[29]On 8 January 2007 Gorringe made further representations. They said that Dr Keen’s views, which were contrary to those of other professionals, were unreasoned. They wondered whether he had seen Dr Patel’s original report of 7 November 2005 and referred to the views expressed by Ms Baptista (of SMART) in her letters of 9, 16 and 28 November 2005. They disagreed that there was any proper foundation for Dr Keen’s different views as to Mr Johnston’s vulnerability. They had not yet seen Ms Whitehead’s report of 29 November 2006, but they did shortly afterwards and wrote further to Lambeth on 15 January 2007 saying that Dr Keen had also failed to address the issues it had raised. It is of some relevance to the argument to note that Gorringe closed that letter by saying that “[w]e look forward to receiving the review decision on or before the 31st of January.”

The second review decision: 1 February 2007

[30]On 1 February Ms Sharman Samuels produced her decision letter on Lambeth’s second review of the section 184 decision. She opened by describing the original section 184 decision as dated 19 December 2005 (it was in fact 19 September 2005). She summarised the background, including the earlier review decision of 22 February 2006 by Mr Awodesu, which had been quashed by the county court on, she said, 2 August 2006 (in fact 23 August). She referred to the fresh evidence adduced since that quashing order, including Mr Johnston’s medical form of 1 November 2006 (referring to alcohol and heroin dependency and depression), Ms Whitehead’s report of 29 November 2006 and Dr Keen’s medical advice of 19 December 2006. Ms Samuels had also considered Gorringe’s representations. She said she had considered the case “afresh” in arriving at her decision.[31]Ms Samuels referred to the drug abuse problem, summarised the position, including that Mr Johnston was in the process of re-starting a substitute treatment programme requiring attendance at a chemist daily for medication and regular meetings with the support agency and referred to Dr Keen’s opinion. She said she agreed with it and that “… I do not consider when homeless a detriment in meeting this requirement [sic].” Turning to the alcohol abuse, she referred to Dr Keen’s advice and said “when I ask myself whether ‘when homeless you would be less able to fend for yourself so that injury or detriment would result where an ordinary homeless person, will be able to cope without harmful effects I remain of the view that you would not suffer injury or detriment.’” As for Mr Johnston’s depressive mood, she was also inclined to accept Dr Keen’s advice in preference to Ms Whitehead’s. After referring to various further matters, Ms Samuels said that “when I ask myself whether you will be, when homeless, less able to fend for yourself so that injury or detriment would result where an ordinary homeless person would be able to cope without harmful effects. I remain of the view that you would not suffer injury or detriment.” This conclusion was not affected by her further consideration of whether Mr Johnston was socially vulnerable or vulnerable for any other reason. Her conclusion was that he was non priority. She advised him of his right of appeal to the county court.

The second appeal to the county court

[32]Mr Johnston exercised his right under section 204 to appeal to the county court. He wanted the review decision set aside or else varied so as to record that he was in priority need. The first ground was that Lambeth had failed to comply with regulation 8(2): Ms Samuels had failed to consider whether the original section 184 decision was flawed and whether the procedural safeguards in regulation 8(2) should be applied. The second ground was that the decision was perverse. The third was that Ms Samuels erred in relying on Dr Keen’s opinion. She should have found that Mr Johnston was in priority need.[33]Mr Johnston made a witness statement on 25 June 2007 for the purposes of that appeal. He explained that, following his original interview by Ms Danielle Samuels on 21 October 2004, he was not interviewed again by Lambeth until after he was told in November 2005 of the negative section 184 decision of 19 September 2005. In particular, he had never met Ms Ali-Balogun, the decision maker. Ms Sharman Samuels (the maker of the review decision under appeal) made a witness statement on 3 July 2007, one prompted by the skeleton argument in support of Mr Johnston’s appeal, paragraph 3.5(ii) of which had said that any reasonable review officer would have concluded that the original section 184 decision was flawed as based on inadequate inquiries, with the result that the review was one to which regulation 8(2) applied. That was the point Judge Walker had made in his judgment in the first appeal. In response to that, Ms Samuels said this: “3. First, I considered whether I should send a letter to the Appellant’s solicitors informing them that I was minded to uphold the decision made on 19th September 2005 that the Appellant was not in priority need within the meaning of the Housing Act 1996 and this is something I discussed with the Respondent’s legal department. I decided not to send a minded to find letter as provided by the Review Procedure Regulations because: a) The issue in the case was well known to the Appellant: namely whether the Appellant was vulnerable having particular regard to his addictions and depression. b) The Respondent’s views on the above issue, as of August 2006, had been thoroughly canvassed during the 1st Appeal hearing in August 2006. c) The Appellant had been represented by specialist housing solicitors since March 2006 and throughout the appeal against the first review decision of Mr Awodesu and through the second review. d) Since the 1st Appeal hearing the Appellant’s solicitors had been shown all relevant documents and had been invited to comment on them. Indeed they made several representations, all of which I considered. 4. Having regard to the above I concluded(a) that there was no material deficiency or irregularity in the original decision of September 2005 that warranted the need for a minded to find letter, and(b) that such a letter would result in further delay.” a) The issue in the case was well known to the Appellant: namely whether the Appellant was vulnerable having particular regard to his addictions and depression. b) The Respondent’s views on the above issue, as of August 2006, had been thoroughly canvassed during the 1st Appeal hearing in August 2006. c) The Appellant had been represented by specialist housing solicitors since March 2006 and throughout the appeal against the first review decision of Mr Awodesu and through the second review. d) Since the 1st Appeal hearing the Appellant’s solicitors had been shown all relevant documents and had been invited to comment on them. Indeed they made several representations, all of which I considered.[34]The Recorder reviewed the history and referred to the statutory and regulatory provisions. He noted that Judge Walker had left open the question of whether the section 184 decision was flawed on the grounds of procedural unfairness. He there had in mind the same points that Judge Walker did, namely the need for a housing authority such as Lambeth to make necessary inquiries as to whether an applicant is eligible for housing assistance and, if so, whether he had priority need. The Recorder also referred in that context to the need to apply and follow The Homelessness Code of Guidance for Local Authorities, under which, as he summarised it, in cases “where applicants have care, health or other support needs, the [housing authority] will need to liaise with social services and health authorities as appropriate, and must bear in mind that a specialist assessment may be crucial to establishing whether the applicant has a priority need for housing and what non-housing support needs may need to be met (para. 3.16 of the Code).”[35]The Recorder ultimately decided the appeal on the basis of the first ground relied upon by Mr Johnston, namely that the review decision was flawed by Lambeth’s failure to comply with regulation 8(2). The argument that Mr Latham advanced to the Recorder on that point was that Ms Samuels had failed to ask herself whether there was a deficiency or irregularity in the original decision. Had she done so, she could only have answered it in the affirmative, since it was obvious that inadequate inquiries (in fact none) had been made over the period from 21 October 2004, when Lambeth interviewed Mr Johnston, and 19 September 2005 when the section 184 decision was made. If Ms Samuels was nevertheless minded to make a decision adverse to Mr Johnston on the review, then the failure to notify Mr Johnston of that, and why (as required by regulation 8(2)), deprived Mr Johnston of the opportunity of making representations as to why she should not make such an adverse decision. The counter argument, as summarised by the judge, appears to have been that Mr Johnston’s drug dependence and depression had not emerged as issues until November 2005 so that the need for an interview had not arisen by the date of the section 184 decision; and that as Mr Johnston’s solicitors had had the opportunity, which they took, to make representations in the lead-up to the second section 202 review, the need for a regulation 8(2) letter did not arise, and Mr Johnston was not disadvantaged by not receiving one.

The Recorder’s conclusion on this issue was as follows:

“31. In my judgment there is considerable force in the criticism at the centre of Ground 1. I detect no reason to doubt that [Ms Samuels] approached the review task conscientiously and intending to reach a fair decision in the light of the available material. That is what she intended to convey by use of the word ‘afresh’. However, faced with the passage of so much time since the original decision, an earlier successful appeal against that first decision, and a body of significant evidence and representations, she appears to me to have overlooked the essential function and significance of Reg 8(2) and, in so doing, to have deprived [Mr Johnston] of an important right and opportunity in the decision making process. 32. Despite Mr Holbrook’s efforts, I am not persuaded that the sending of a ‘minded to’ letter was either rendered otiose in the circumstances or was effectively addressed by the correspondence passing between [Lambeth] and [Mr Johnston’s] solicitors. 33. On the contrary, I consider that Mr Latham’s submission that (a) [Ms Samuels] should have asked herself whether there was a deficiency or irregularity in the original decision as part of her own decision making process, (b) had she done so, that question could only have been answered in the affirmative, and (c) once she became minded to make a decision adverse to [Mr Johnston’s] interests, she had to give notice of that fact and her reasons and afford [him] an opportunity to make representations, reveals the correct analysis in this case. 34. Success on this ground is sufficient to compel me, in the judicial exercise of the discretion conferred on the court by s.204 …, to quash or vary the review decision.”
[37]The Recorder regarded the other grounds of Mr Johnston’s appeal as falling within the “grey area” (an allusion to this court’s judgment in Crossley v. Westminster City Council [2006] HLR 26, at [14]) but said this did not mean that he regarded Ms Samuels’s reasoning for her decision as “entirely sustainable” and he identified one of her conclusions as “problematic”. He did not, however, descend further into the grey area. The outcome was that he allowed Mr Johnston’s appeal and quashed Ms Samuels’s review decision.

Lambeth’s appeal against that decision

[38]Lambeth now challenges that decision and seeks to have Ms Samuels’s review decision upheld. In the meantime, following Mr Recorder Barker’s order, Lambeth should in theory have promptly embarked upon a third review of the original section 184 decision, but the parties have agreed an extension of time for that exercise pending the outcome of the appeal.[39]We were referred to certain authorities in relation to the determination of “vulnerability” within the meaning of section 189(1)(c), but it is not necessary for the purpose of the central question on this appeal to refer to them. That question is whether Lambeth had fatally failed to comply with regulation 8(2), whose provisions I have quoted and will not repeat. Regulation 8(2) requires the reviewer to “consider” whether there was a deficiency or irregularity in the original decision or the manner in which it was made. That may be read as importing a subjective test but it is not a purely subjective one. The reviewer’s consideration of whether or not, in the circumstances of the case, the original decision was so deficient or irregular such as to require the giving of a “minded to find” notice is open to question on public law grounds; and if he ought rationally to have concluded that the original decision was so deficient or irregular, but nevertheless did not do so, his decision can be the subject of successful challenge.[40]Guidance as to the operation of regulation 8(2) was provided by this court in Hall v. Wandsworth London Borough Council [2005] 2 All ER 192. Carnwath LJ provided an extended explanation of it, which, despite its length, I propose to quote in full: “[24] Before turning to the arguments in the two appeals, it will be helpful to set re 8(2) in its context as part of the review procedure. This was a new procedure introduced by the 1996 Act, and applied to decisions on homelessness (ss. 202, 203) and also to decisions on the housing register (ss. 164, 165). In the present context the scheme of the Act and the regulations was authoritatively explained by Lord Bingham in Runa Begum v. Tower Hamlets London BC [2003] UKHL 5 at [9](3), [2003] 1 All ER 731 at [9](3), [2003] 2 AC 430: ‘Although … the reviewer is not independent of the authority which employs him or her, s 203 of the 1996 Act and the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999, SI 1999/71 do provide safeguards that the review will be fairly conducted. Thus the reviewer must be senior to the original decision-maker (s 203(2)(a), reg 2), plainly to avoid the risk that a subordinate may feel under pressure to rubber-stamp the decision of a superior. The reviewer must not have been involved in making the original decision (s 203(2)(a), reg 2), to try to ensure that the problem is addressed with a genuinely open mind. The applicant has a right to make representations, and must be told of that right (reg 6(2)). Such representations must be considered (reg 8(1)). The applicant is entitled to be represented (reg 6(2)). If the reviewer finds a deficiency or irregularity in the original decision, or in the manner in which it was made, but is none the less inclined to make a decision adverse to the applicant, the applicant must be informed and given an opportunity to make representations (reg 8(2)). The reviewer must give reasons for a decision adverse to the applicant (s 203(4)). The applicant must be told of his right to appeal to the county court on a point of law (s 203(5)). These rules do not establish the reviewer as an independent and impartial tribunal, but they preclude unreasoned decision-making by an unknown and unaccountable bureaucrat whom the applicant never has a chance to seek to influence, and any significant departure from these procedural rules prejudicial to the applicant would afford a ground of appeal.’ [25] As that summary makes clear, the role of the reviewer remains that of an administrator, not an independent tribunal. Regulation 8(2) of the 1999 Regulations is an important part of the mechanisms designed to ensure the fairness of the overall procedure, although it seems to have received surprisingly little attention in the numerous reported cases on this legislation. It provides: [and Carnwath LJ set it out, emphasising the words ‘… there is a deficiency or irregularity in the original decision or in the manner in which it was made …’]. [26] The statutory source of the Regulations is s. 203(1), (2)(b) of the 1996 Act, under which the Secretary of State may make regulations governing the review procedure, and in particular ‘as to the circumstances in which the applicant is entitled to an oral hearing’. Thus, the requirement for advance notice of the intended decision in certain cases does not derive directly from the statute itself. 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 replace the original 1996 Regulations (Allocation of Housing and Homlessness (Review Procedures and Amendment) Regulations 1996, SI 1996/3122). The only significant change was that (in the italicised passage) 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 of this 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 substantial defect in the decision itself, such as an error of law or a failure to take some material factor into account. [28] The Secretary of State’s Code of Guidance (para 13.11) suggests as possible examples the typical judicial review grounds, such as failure to take account of relevant considerations, bad faith, mistake of law, and Wednesbury unreasonableness (see Associated Provincial Picture Houses Ltd v. Wednesbury Corp [1947] 2 All ER 680, [1948] 1 KB 223). I agree with Judge Collins that a deficiency of reasoning would also be included; as he said: ‘… an original decision would be deficient if it failed to communicate with sufficient clarity the essential basis on which the application was being rejected’. [29] However, I would put it more broadly. The word ‘deficiency’ does not have any particular legal connotation. It simply means ‘something lacking’. There is nothing in the words of the rule to limit it to failings which would give grounds for legal challenge. If that were the intention, one would have expected it to have been stated expressly. Furthermore, since the judgment is to be that of the reviewing officer, who is unlikely to be a lawyer, it would be surprising if the criterion were one depending solely on legal judgment. On the other hand, the ‘something lacking’ must be of sufficient importance to the fairness of the procedure to justify an extra procedural safeguard. Whether that is so involves an exercise of ‘evaluative judgment’ (see Runa Begum v. 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 conclusions 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. [31] Applying that approach to the present case, one faces the immediate difficulty that Mr Adelaja did not refer in terms to reg. 8(2) in either case. In fairness to him, neither did the applicants’ solicitors. However, that could not relieve the reviewing officer of a duty which the regulations placed on him. …” ‘Although … the reviewer is not independent of the authority which employs him or her, s 203 of the 1996 Act and the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999, SI 1999/71 do provide safeguards that the review will be fairly conducted. Thus the reviewer must be senior to the original decision-maker (s 203(2)(a), reg 2), plainly to avoid the risk that a subordinate may feel under pressure to rubber-stamp the decision of a superior. The reviewer must not have been involved in making the original decision (s 203(2)(a), reg 2), to try to ensure that the problem is addressed with a genuinely open mind. The applicant has a right to make representations, and must be told of that right (reg 6(2)). Such representations must be considered (reg 8(1)). The applicant is entitled to be represented (reg 6(2)). If the reviewer finds a deficiency or irregularity in the original decision, or in the manner in which it was made, but is none the less inclined to make a decision adverse to the applicant, the applicant must be informed and given an opportunity to make representations (reg 8(2)). The reviewer must give reasons for a decision adverse to the applicant (s 203(4)). The applicant must be told of his right to appeal to the county court on a point of law (s 203(5)). These rules do not establish the reviewer as an independent and impartial tribunal, but they preclude unreasoned decision-making by an unknown and unaccountable bureaucrat whom the applicant never has a chance to seek to influence, and any significant departure from these procedural rules prejudicial to the applicant would afford a ground of appeal.’

The submissions

[41]Mr Holbrook’s first main submission in support of Lambeth’s appeal was that Ms Samuels plainly did consider regulation 8(2) because she said so in her witness statement. The Recorder, however, made no reference to that in his judgment even though that statement was before him. Insofar as what he said in [33] of his judgment was founded on the basis that she did not consider the possible application of regulation 8(2), Mr Holbrook said he was wrong.[42]Mr Holbrook’s second submission was that Ms Samuels’s consideration of the application of regulation 8(2) was not unlawful. It was and is not challengeable on public law grounds. He developed that in six succinct points. First, by the time of the second review, the issue between the parties was as to whether Mr Johnston was vulnerable such as to qualify as having “priority need”. It was a simple issue and both sides knew it was the issue. In particular, Mr Johnston had received the original decision letter and the first review letter, and he also had the opportunity to raise before Judge Walker all the matters he wished to raise in challenge to the first review decision. Second, not only did Mr Johnston know what the issue was, he was also given a fair opportunity to submit to Lambeth whatever information he thought relevant in support of his case, and that included the further SMART report of 29 November 2006 and Gorringe’s further representations. He also had the benefit of a further interview with Ms Samuels, the review officer, on 1 November 2006. Third, he was given a fair opportunity to comment on the additional information that Lambeth had received, including from SMART and from Dr Keen, and he availed himself of that opportunity. Fourth, in all those circumstances a “minded to find” notice under regulation 8(2) would have served no relevant purpose. Fifth, Gorringe never asked for such a notice in the lead-up to the second review decision, although they had raised a regulation 8(2) point in relation to the first review in the first appeal to Judge Walker. Lambeth was therefore entitled to consider that Mr Johnston was no longer placing any weight on the idea that he should have been given such a notice. Sixth, the last letter Gorringe wrote to Lambeth (on 15 January 2007, before the review decision) said that they were looking forward to the review decision in two weeks time. They were thereby implying that the inquiries and representations had been completed. In the circumstances, Ms Samuels’ decision not to serve a regulation “minded to find” notice caused no prejudice to Mr Johnston and disclosed no unlawfulness. I should add that, despite the general tenor of these various points, Mr Holbrook specifically did not submit that Mr Johnston must be taken to have waived any right he had to be given a “minded to find” notice.[43]Mr Latham, in his submissions on behalf of Mr Johnston, met all these points head on. As regards the process of the second review, Mr Latham disagreed with Mr Holbrook’s summary of it. First, whatever procedure Lambeth was going to adopt on that review, it should have notified Mr Johnston of it following the hearing before Judge Walker, but it did not do so (regulation 6(2)(b)). Second, the SMART report of 29 November 2006 was not in fact part of Mr Johnston’s representations: it was not commissioned by him, it was requested by Lambeth. Third, it was incorrect to regard the 1 November 2006 interview as one in which Mr Johnston was making his case to the review officer: he did not know that Ms Samuels was the review officer.[44]As for the heart of the matter -- the non-compliance with regulation 8(2) -- the position was simple. The section 184 decision of 19 September 2005 was flawed procedurally, and manifestly so. Following Ms Danielle Samuels’s conclusion on 21 October 2004 that Mr Johnston was vulnerable and in priority need, there was a gap of 11 months during which he was not further interviewed before Ms Ali-Balogun made her section 184 decision on 19 September 2005 to the effect that he was not vulnerable and not in priority need. Mr Johnston started his drug rehabilitation course on 12 September 2005 so that at the very least it is likely that, had he been interviewed when Lambeth took up his case again in September 2005, they would have learnt that. The decision was obviously flawed, as Judge Walker had pointed out.[45]It followed that Ms Sharman Samuels, the second review officer, should, when conducting her review, have “considered” (regulation 8(2)) that the original section 184 decision was so flawed. The apparent deficiency in it had been ventilated in the hearing before Judge Walker, who had made his views on the topic crystal clear. Ms Samuels knew all about that because she referred to it expressly in paragraph 3(b) of her witness statement of 3 July 2007. She had never suggested that any interview was conducted during that period.[46]All that being so, and given that Ms Samuels was minded to deliver a review decision that was adverse to Mr Johnston, it was a plain case for giving him a “minded to find” notice. That notice would have to explain the reasons for Ms Samuels’s provisional decision. The importance of such a notice is that, having given such reasons, it then invites the applicant to make consequential representations either orally or in writing – or both orally and in writing – on those reasons. That is an important element of the integrity of the review procedure. In the present case, such representations could have been directed at points to the effect that Ms Samuels had not properly assessed the information submitted on Mr Johnston’s behalf; and to the effect that she was giving undue weight to the views of Dr Keen (who had never seen Mr Johnston, and anyway did not regard his problems as a medical matter) and insufficient weight to the views of SMART, whose Ms Whitehead was experienced in the field and had seen and assessed Mr Johnston.[47]Mr Holbrook’s response to this was, in effect, that this final right to make representations was of no material benefit to Mr Johnston. He had seen the further SMART report, and also Dr Keen’s report, and had taken the opportunity to make what were in substance all the same points that Mr Latham said he could and would have made in response to a regulation 8(2) notice. In those circumstances, there was no advantage to Mr Johnston in the receipt of such a notice, and it could not be said that Ms Samuels had acted unlawfully in not giving one.

Discussion and conclusion

[48]There was considerable discussion in the course of counsel’s helpful submissions as to the role of regulation 8(2) in the scheme of section 202 reviews, as there also was in relation to the nature of a section 202 review itself. Such a review is plainly not in the nature of an appeal, pure and simple, against the original section 184 decision. It is a review of that decision in the nature of a re-consideration of the applicant’s application, being a re-consideration in which the review officer can and should also take account of further inquiries in relation to the applicant carried out since the original decision, as well as of any representations made on his behalf. Importantly, even if the review officer considers that the original decision was subject to some apparently vitiating flaw, it is nonetheless open to him to come to the same decision if he considers the material before him justifies it. Compare Mohamed v. Hammersmith and Fulham London Borough Council [2002] 1 AC 547, at [26], per Lord Slynn of Hadley.[49]As to how regulation 8(2) fits into the procedural scheme, Mr Holbrook instanced an extreme example of the case in which it would serve a valuable purpose. Suppose a case in which the section 184 decision is that the applicant is vulnerable, and so in priority need, but is disentitled to assistance because he had become homeless intentionally. The applicant seeks a review of the decision, focusing his representations on why the latter conclusion was wrong. The review officer is of the provisional view that the applicant is right about that, but that the original decision was wrong, and irregularly so, on vulnerability, that not being a matter on which the applicant had focused his review representations. He is minded to issue a review decision confirming that the applicant does not have priority need. If, without more, he were to do so, the applicant might well have been considerably disadvantaged: he would have lost on a point that he thought was won but without seeing any need to address it further for the purposes of the review. The merit in such a case of requiring the service of regulation 8(2) “minded to find” notice would be that it would give him a forewarning of the review officer’s provisional views and the opportunity to make representations in respect of them. The advantage to him of that in such a case is obvious.[50]It was, however, of the essence of Mr Holbrook’s submissions that the need for a regulation 8(2) notice will vary according to the particular nature of the section 202 review. The circumstances of the present case are of course several leagues away from his example. By the time of the conclusion of the hearing before Judge Walker, the case had moved significantly on from the position that had obtained at the time of the original section 184 decision in September 2005. Mr Johnston’s claimed vulnerability was not by then said to be attributable merely to his alcohol dependency, it relied also on his drug addiction and depression and he had made representations about that in relation to the first review. All of that was fully canvassed at the hearing of the first appeal before Judge Walker. Mr Johnston and Lambeth knew perfectly well what the issues were for the purposes of the second review, and he took the opportunity to make representations on them. In those circumstances, Mr Johnston had had a fair opportunity to address all the issues he needed to address, and the service of a “minded to find” notice offering him the opportunity to make yet further representations would do no more than give him a right that he had already exhausted.[51]Those are, it seems to me, compelling points. But Mr Holbrook’s submissions did not persuade me that they ought to carry the day. The difficulty I have with them is that regulation 8(2) is not a discretionary option that the review officer can apply or disapply according to whether or not he or she considers that the service of a “minded to find” notice would be of material benefit to the applicant. Regulation 8(2) imposes a dual, mandatory obligation upon the review officer. First, to “consider” whether there was a deficiency or irregularity in the original decision or in the manner in which it was made. Secondly, if there was -- and if the review officer is nonetheless minded to make a decision adverse to the applicant on one or more issues -- to serve a “minded to find” notice on the applicant explaining his reasons for his provisional views. In my judgment, there is no discretion on the review officer to give himself a dispensation from complying with either of those obligations. As regards the first part of it, I have referred to the fact that it is not a purely subjective exercise but that failure to arrive at the right “consideration” can be challenged on usual public law grounds. As regards the second part, the language of regulation 8(2) is unambiguously mandatory – “the reviewer shall notify …”.[52]It can perhaps be said that the benefit that such a notice gives to an applicant may not in some cases – and the present one is probably a good example – appear obviously as valuable as it might in others. If, as in this case, the applicant has been able – in advance of the review decision -- to address all the issues he knows the review officer is considering, the opportunity to make further representations in response to the review officer’s reasons for his provisionally adverse views may not be as necessary to the applicant as, for example, it would in the extreme example given by Mr Holbrook to which I have referred. But, having said that, it appears to me that regulation 8(2) confers a potentially invaluable procedural right in all cases.[53]It is one thing for an applicant to be able to make representations on the matters in issue and then apprehensively await the review officer’s decision, whichever way it may go. It is quite another for an applicant, not just to be able to make such representations, but then also to be given(i) advance notice of the review officer’s reasons for his provisionally adverse views, and(ii) the opportunity not just to make further written representations as to why those views are not justified by his reasons, but also oral representations to that effect. Previously the applicant will simply have addressed the issues as best he can. Now he will have the opportunity to respond specifically to the review officer’s own reasons as to how he proposes to deal with the issues. That is a most important advantage to the applicant. It may well, in many cases, enable him to engage in no more than an exercise of advocacy. But advocacy can turn a case. There can be few judges who, having formed a provisionally adverse view on a skeleton argument advanced in support of a case, have not then found their view transformed by the subsequent oral argument for which, in the art of advocacy, there is no comparable substitute. The opportunity open to an applicant to try, by written and/or oral argument, to persuade the review officer that his reasoning for his provisional conclusion is mistaken is – at the very least – potentially of great benefit to an applicant. To be deprived of that right is or may be seriously prejudicial.[54]In the circumstances, I have come to the conclusion that Ms Samuels’s failure to consider that this was a case in which the facts required the giving of a “minded to find” notice to Mr Johnston under regulation 8(2) was indefensible and unlawful. I regard that failure as having vitiated the integrity of her review decision. I consider that Mr Recorder Barker was properly entitled to find and conclude that it meant that her review decision of 1 February 2007 was fatally flawed. He was right to quash that decision. I would dismiss Lambeth’s appeal.[55]I agree.[56]I also agree.

Cited in 15 later judgments

and 6 more of the most senior