Mohamoud v Birmingham City Council [2014] EWCA Civ 227

[2014] EWCA Civ 227Case No B5/2013/1163
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
His Honour Judge McKenna
BM 20254A
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Friday 7 th March 2014
Before
LORD JUSTICE MOORE-BICKLORD JUSTICE MCFARLANEMRS JUSTICE PROUDMAN
Between
NAIMA MOHAMOUDAppellantBIRMINGHAM CITY COUNCILRespondent
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
DAVID CARTER (instructed by Shelter West Midlands Advice Service) for AppellantEMILY ORME (instructed by Legal Services, Birmingham City Council) for RespondentHearing Hearing date : 18 February 2014
JudgmentMrs Justice Proudman :
[1]This is an appeal from the decision dated 15 April 2013 of His Honour Judge McKenna at Birmingham Civil Justice Centre. Permission to appeal was granted by Underhill LJ on 7th November 2013. It is a second appeal under s. 204 of the Housing Act 1996 (“the Act”) against a review decision made by Birmingham City Council (“the Council”), the local housing authority for the purposes of the Act, on 15 October 2012.[2]The Council’s original decision of 19 July 2012, upheld on review and by HHJ McKenna, was that the Council had discharged its duty under s. 193 of the Act to secure that suitable accommodation was available for the appellant, Ms Mohamoud, and that ithad therefore ceased to be subject to that duty under Part VII of the Act. Ms Mohamoud was duly notified of the decision in accordance with s. 193 (5) of the Act.[3]On 30 April 2013 Mr Carter, Counsel for the appellant, replaced his original grounds of appeal of 6 November 2012 with new grounds. There is one simple issue for this Court, namely whether Ms Carter, the relevant Council officer, was entitled, without serving a “minded to find” notice, to find on the review that there was no deficiency in the original decision. Mr Carter relies on Wednesbury unreasonableness: see Associated Provincial Picture Houses Limited v. Wednesbury Corp [1948] 1 KB 223.[4]The appeal does not involve a challenge to the decision that the property offered was suitable and reasonable for Ms Mohamoud to accept. The challenge is made on the basis that Ms Mohamoud’s confusion led her to refuse the offer of accommodation in circumstances where, if she had understood the true position, she would have accepted it. The background[5]Ms Mohamoud (also called in our papers Mahamoud) is separated from her husband. In April 2012 she was staying with a friend but on discovering that she was pregnant the friend asked her to leave. Accordingly Ms Mohamoud approached the Council for accommodation.[6]On 18 April 2012 a computer-generated Homeless Application Form (“the homeless form”) was completed. The Council employee sits at the computer and fills in the form in accordance with the instructions of the applicant given at the time. Of particular note is the question under paragraph 1 “Translator required?” where the box “No” is checked, (we were told that an interpreter is available by telephone at all times) and the “Additional Information provided by Interviewer” under paragraph 26 b. This includes the following; “The statement has been read back to the applicant and the applicant agrees to the statement provided, the applicant speaks ENGLISH… The applicant has also been informed that if the council has a duty to provide accommodation, it will make ONE OFFER which would be considered suitable for the needs of the applicant and if it is refused without reasonable grounds, no further offers will be made but the applicant does have a right to review. The applicant has also been informed that if we give a priority Decision THEY NEED TO BID FOR THEIR ONE OFFER ON THE WEBSITE AND OUR MANAGEMENT TEAM WILL ALSO BE BIDDING FOR THEM AND THIS OFER [sic] COULD BE CITY WIDE FOR ANY TYPE OF PROPERTY INCLUDING HIGH RISE FLATS”[7]Under Paragraph 27, “Offer of Accommodation”, it is again stated, “Where the City Council has a duty to secure accommodation, it will make one offer of suitable accommodation.” And there is a box with a bold background stating, “Please advise person: Where Birmingham City Council has a duty to secure accommodation, it will make one offer of suitable accommodation of any type of property.”[8]And the “Yes” box is checked next to the statement, “I understand that if I refuse an offer of any type in any area of the City, that is suitable to my needs as defined by strict legislation, I will not receive a further offer.”[9]Finally, at paragraph 30, there is a “Declaration: To be read and signed by the person(s)”, “I/we understand the warning notice [a separate document not included in the appeal bundle], and confirm that no relevant details have been withheld. If the City Council accepts it has a duty to me/us to secure suitable accommodation I/we accept that I/we will be made one suitable offer of accommodation.” Ms Mohamoud signed the declaration.[10]Part VII of the Act sets out the circumstances in which a local housing authority is required to provide housing assistance to a homeless person who applies to it for accommodation. Where the authority decides that an applicant is homeless, eligible for assistance, in priority need and not intentionally homeless, it must secure that suitable accommodation is made available. That is the duty under s. 193 of the Act: see s. 193(1) and (2) and s. 206 (1).[11]Once the authority decides that it owes such a duty it must give the applicant written notification of its decision. On 31 May 2012 the Council gave Ms Mohamoud such notification by letter, which stated, “If you accept or refuse an offer of accommodation from Birmingham City Council (in accordance with Part VI of the Housing Act 1996) Birmingham City Council’s housing policy is that all homeless applicants accepted under Part VII of the Housing Act 1996 will receive one offer of suitable accommodation. This will be your one and final offer, as required by Section 193(7) of the Housing Act 1996.”[12]The letter then went on to explain the bidding process for accommodation. Properties would be advertised each week, and, “You will be able to bid for a maximum of 3 properties in each weekly advertising cycle… At the end of each advertising cycle, eligible bids will be shortlisted according to the priority of applicants under the banding scheme…If when we shortlist a property, you are shortlisted as being the highest placed applicant that is invited to view the property, we will consider this to be your one and final offer. Birmingham City Council will consider its duty to you to be discharged whether you accept or refuse this offer. At times, Birmingham City Council may decide to place bids on your behalf. This is called Management Bidding… Management Bidding does not prevent you from placing your own bids, however, if you are shortlisted as being the highest place applicant as a result of a management bid, we will still consider this to be your one and final offer and you should consider accepting it. Again, whether you refuse or accept the management bid offer the council will consider that it has discharged its homelessness duty to you…. Should you have any queries regarding this letter, please contact me by telephone on [giving the number]. ”[13]As Ms Carter said in her review, being able to bid three times in a cycle is not the same thing as being offered a property three times. Ms Mohamoud signed the homeless form confirming that she was given and understood verbal advice. It is hard to see how the Council could have made it clearer that only one offer would be made. However I can understand how someone, either reading the letter cursorily or not fully understanding it, might find the bidding process confusing.[14]The duty under s. 193 of the Act ceases if the applicant, having been informed of the possible consequences of refusal and of his right to request a review of suitability refuses a “final offer of accommodation under Part VI”, namely an offer made in writing stating that it is a final offer for the purposes of s. 193(7) of the Act.[15]On 11 July 2012 the Council made Ms Mohamoud a final offer within this definition of a two bedroom flat at Flat 38 Cadbury House Birmingham. Before 9 November 2012 the terms of the Act were such that it was not lawful for an authority to make a final offer unless satisfied both that the accommodation was suitable for Ms Mohamoud and that it was reasonable for her to accept the offer. The offer letter of 11 July 2012 was headed “FINAL OFFER OF ACCOMMODATION” and said, under a section headed “Our duty to you”, “As part of this legal duty, we only have to offer you accommodation once. We are offering you this accommodation as your one and final offer in order to discharge our duty to you in pursuance of Section 193(7) of the Housing Act 1996.”[16]And on the last page of the letter, under the heading “What happens if you turn this offer down?” there was the further statement, “If you turn this offer down without good reason we will not offer you any more accommodation.”[17]On 19 July 2012 Ms Mohamoud told Ms Jamieson, a Council case management officer, that she was refusing the offer of Flat 38 because it was too small, she was frightened of heights and she did not want to live in a high rise flat. On the same day Ms Jamieson notified Ms Mohamoud that the Council had decided that it considered that the property was suitable and reasonable for her to accept, giving detailed reasons, and that it considered that it had discharged its duty to her under s. 193 of the Act. The letter pointed out that Ms Mohamoud had signed the homeless form confirming that the Council could make offers of accommodation of any type and that she understood that if she refused an offer of any type in any area of the city suitable to her needs she would not receive a further offer. The letter informed Ms Mohamoud of her right to a review. That was the original decision.[18]An applicant has a right to ask for a review of any decision of a local housing authority as to what duty if any is owed to him under s. 193 of the Act: s. 202 (1)(b). That includes a decision that a duty has ceased: Wasame and Anor v. Hounslow LBC [2000] 1 WLR 696.[19]On 24 July 2012 Shelter West Midlands (Advice Service), acting on behalf of Ms Mohamoud, asked for a review and made representations for the purposes of the review, also asserting that Ms Mohamoud would “…gladly accept the property now if it were offered to her again”. New reasons were given for Ms Mohamoud’s refusal, as follows:
“…you have failed to consider all of Miss Mahamoud’s circumstances leading up to the refusal- including the fact that English is not her first language and she found the entire process confusing and there was no support to make it less confusing for her. Ms Mahamoud is 38 weeks pregnant, and for the last 12 weeks has had no income. Her husband left her shortly after she became pregnant. She has been under considerable stress as a result. At the time when the full housing duty was accepted, she was advised by several friends that she would be entitled to up to three offers of permanent accommodation. Miss Mahamoud had seen them go through similar circumstances and had no reason to question the advice they gave her. English is not Miss Mahamoud’s first language and she did not fully understand the section 184 letter that was sent to her. She relied on friends to advise and guide her as they had gone through the homelessness process themselves. Miss Mahamoud was confused by the bidding process, she understood that she could bid on three properties per week and thought that this supported that her friends advised her she would get three offers.”
[20]Pursuant to s. 203 (1) and (7) of the Act the review procedure is governed by the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 (“the Regulations”). Pursuant to regulation 2 the review was conducted by Jenny Carter.[21]Ms Carter interviewed Ms Mohamoud on 15 October 2012 and then on the same day notified her that she had upheld the original decision. That was the review decision. Her letter to Ms Mohamoud goes into some detail as to why she rejected the reasons put forward by Shelter as well as Ms Jamieson’s original reasons. Thus she relies on the notes made during the original interview when the homeless form was completed and also says, “During my telephone conversation with you I noted that your command of the English language is quite good and you again were able to express yourself and answer the questions being asked of you. I do not accept that you were disadvantaged due to English not being your first language.” She dealt with the assertion of confusion supported by the advice of friends by saying, “I do not accept this assertion. If you understood that you could make 3 bids during a bidding cycle it is reasonable to assume you would have understood one offer only. You are capable enough to understand and carry out instructions given regarding the bidding cycle therefore I am satisfied that you would understand the one offer policy that was explained to you.”[22]By s. 204 (1)(a) of the Act there is a right of appeal to the County Court on a point of law and on 6 November 2012 Ms Mohamoud exercised that right. On 15 April 2013 HHJ McKenna dismissed the appeal with costs.[23]An appeal to the County Court is an appeal on a point of law only and the court is not therefore a primary fact–finder. Its role is similar to that of judicial review so that it is required to examine the decision of the authority in order to determine whether it was made lawfully. It therefore includes matters of interpretation and also the full range of issues which would otherwise be the subject of an application to the High Court for judicial review: see Nipa Begum v. Tower Hamlets LBC [2000] 1 WLR 306, affirmed in Runa Begum v. Tower Hamlets LBC [2003] UKHL 5; [2003] 2 AC 430, per Lord Bingham of Cornhill at [7]. In Council of Civil Unions v. Minister of State for the Civil Service [1985] AC 374 at 410-11 Lord Diplock summarised the grounds for judicial review as illegality, irrationality and procedural impropriety so that Ms Mohamoud must satisfy at least one of these grounds.[24]In homelessness cases the primary question on a second appeal is not normally whether the county court judge was right but whether the authority’s decision was lawful so that the Court of Appeal’s function is to review the review decision rather than that of the judge below: see Danesh v. Kensington and Chelsea RLBC [2006] EWCA Civ 1404; [2007] 1 WLR 69, per Neuberger LJ at [30] and Bubb v. Wandsworth LBC [2011] EWCA Civ 1258; [2012] HLR 13, per Lord Neuberger MR at [31].[25]Regulation 8 (2) of the Regulations provides:
“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 or in writing.”
[26]It is common ground that Ms Carter made the review decision without giving any such notification to the appellant. The issue before the court is whether new information which Ms Carter had when conducting her review, but which was not before the original decision-maker (Ms Jamieson), can cause the original decision to be deficient so that, despite the fact that Ms Carter found no deficiency or irregularity, the failure to notify the appellant within regulation 8 (2)(a) and the failure to allow the appellant the opportunity of responding in accordance with regulation 8 (2)(b) are fatal to the validity of the review.[27]The relevant principles are conveniently summarised by Lewison LJ in NJ v. Wandsworth LBC [2013] EWCA Civ 1373 at [70] :
“i) Regulation 8(2) imposes two mandatory duties on a reviewing officer: (a) a duty to consider whether there is a deficiency in the original decision; and (b) if the reviewing officer considers that there is a deficiency a duty to serve a “minded to find” notice: Lambeth LBC v. Johnson [2008] EWCA Civ 690 [2009] HLR at [51]. ii) Whether a reviewing officer has complied with these duties is capable of challenge on public law grounds: Hall v. Wandsworth LBC [2004] EWCA Civ 1740; [2005] HLR 23 at [29]; Lambeth LBC v. Johnston at [51]. iii) The reviewing officer should treat reg. 8(2) as engaged whenever he or she considers that an important aspect of the case was either not addressed, or not addressed adequately, by the original decision-maker: Hall v. Wandsworth LBC at [30]. iv) That inadequacy may arise because of a subsequent change in the facts which was unknown to the original decision-maker, in which event the original decision may have become deficient: Banks v. Kingston-upon-Thames RLBC [2008] EWCA Civ 144 [2009] HLR 29 at [71]. v) The deficiency must be one that is of sufficient importance to the fairness of the procedure as to justify an extra procedural safeguard: Hall v. Wandsworth LBC at [29]. Whether a deficiency has this character is to be tested by asking whether further representations could have made a difference to the decision that the reviewing officer had to make: Banks v. Kingston-upon-Thames RLBC at [72]. If further representations could have made no difference to the decision that is not a relevant deficiency: Ibrahim v. Wandsworth LBC [2013] EWCA Civ 20 at [38]. But the reviewing officer must be careful not to prejudge that issue: Mitu v. Camden LBC [2011] EWCA Civ 1249 [2012] HLR 10 at [27].”
[28]In the light of those principles Lewison LJ went on to hold as follows:
“i) where new facts emerge that relate to an important issue in the case the reviewing officer must consider whether those new facts expose a deficiency in the original decision; ii) they will expose a deficiency in the original decision if in the light of those new facts that issue was either not addressed or not adequately addressed; iii) although it will usually be the case that there was a deficiency in the original decision if the reviewing officer decides to uphold it on different grounds, there may yet be a deficiency if the reviewing officer decides to uphold the decision on the same grounds… ”
[29]In addition, Mr Carter extracted the following from the authorities. That the procedural safeguards contained in the Regulations are of the highest importance: see per Lord Bingham at [9] in Runa Begun. That the word deficiency in regulation 8 (2) means “something lacking” of sufficient importance to the fairness of the procedure to justify the extra procedural safeguard contained in the regulation and is not limited to failings which provide grounds for legal challenge: see per Carnwath LJ at [29] in Hall v. Wandsworth LBC. That regulation 8 (2) should be given a purposive interpretation: per Lawrence Collins LJ in Banks v. Kingston-upon-Thames RLBC [2008] EWCA Civ 1443; [2009] PTSR 1354. This is to be contrasted with a literal interpretation focusing on the position as at the date of the decision. Lawrence Collins LJ said (at [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.”[30]Mr Carter also prayed in aid a passage in the Homelessness Code of Guidance For Local Authorities issued by the Secretary of State under section 182 of the Act. That section requires local authorities to have regard to the Code. It states at paragraph 6.23:
“It will be important to ensure that the applicant fully understands the decision and the nature of any housing duty that is owed. In cases where the applicant may have difficulty understanding the implications of the decision, it is recommended that housing authorities consider arranging for a member of staff to provide and explain the notification in person.”
[31]I would add two matters. First, it was held in Lambeth v. Johnston that a reviewing officer’s failure to serve a “minded to find” notice under regulation 8 (2) is not cured by the applicant having had the opportunity to make comprehensive representations before the reviewing officer makes his decision: see [50]-[51] and [53]. Secondly I am mindful of Lord Brightman’s strictures in R v. Hillingdon LBC ex parte Puhlhofer [1986] AC 484 at 518 D-E that “great restraint should be exercised” in granting a remedy and of Lord Neuberger’s warning in Holmes-Moorhouse v. Richmond upon Thames LBC [2009] 1 WLR 413 that a judge should not adopt an unfair or unreasonable approach when considering or interpreting review decisions. As review decisions are prepared by housing officers it is not appropriate to subject their decisions to the same sort of analysis as may be applied to a contract drafted by lawyers, an Act of Parliament or a court’s judgment. Ms Mohamoud’s case[32]In the letter dated 24 July 2012 seeking a review, Shelter on Ms Mohamoud’s behalf raised new matters that were not before Ms Jamieson when she made her original decision. Ms Mohamoud’s case is that these new matters rendered the original decision deficient within the meaning of regulation 8 (2) so that Ms Carter was obliged to (but did not) send her a “minded to find” notice pursuant to the regulation, giving her the additional safeguard of the opportunity to respond to Ms Carter’s provisionally adverse views by way of written and oral representations.[33]Mr Carter submits that the statutory purpose of the requirement in s. 193 (5) and (7) of the Act that an authority should inform the applicant of the possible consequences of refusal of an offer of accommodation is to ensure that the applicant is fairly treated given that refusal results in discharge of duty and homelessness. Thus the authority must, it is submitted, put the applicant in a position where he is able to make an informed decision whether to accept or refuse in the full knowledge of the implications and consequences.[34]Sir Anthony May P in Ali v. Birmingham CC [2009] EWCA Civ 1279; [2011] HLR 17 at [39], observed that “inform” as used in s. 193 (5) of the Act (and Mr Carter accepted that there was no distinction between subsections (5) and (7) for this purpose) required information to be conveyed in understandable English and the question whether the statutory obligation to inform had been performed was not to be judged by the varying extent to which the recipient of the document might have understood the information conveyed. In that case the Court of Appeal dismissed an appeal against a recorder’s conclusion that the appellant was given sufficient help in understanding the document put before him. It is the objective reading of the information rather than the subjective understanding of the applicant which is relevant for s. 193 of the Act.[35]Mr Carter thus accepts, as he must, that there is a limit to the duty of the authority to make sure that the applicant understands the process where, as here, translation or interpretation is available and indeed offered to the applicant. However he says it is a different matter if the authority actually becomes aware that an applicant alleges prior to review that she has misunderstood the information given. In such circumstances he contends that it would be unreasonable to find that he or she had made an informed decision to refuse the property offered.[36]Thus he submits that as the reasons advanced by Shelter for Ms Mohamoud’s refusal of the offer raised doubt as to whether she was aware of the effect of doing so, those reasons were an important issue in the case justifying the additional safeguard of a “minded to find” notice. The Council’s case[37]The judge below dealt with this issue in [40] of his judgment. He took the view that the original decision could not be impugned because of subsequent events unless the circumstances had changed between the two decisions. In other words, an applicant cannot attract the additional safeguards of regulation 8 (2) where the relevant facts were always known to the applicant and could have been adduced at the time of the original decision. He said, “On this issue, Counsel for [the Council] submitted that a distinction has to be drawn between matters which have always been known about and cases where circumstances have changed (as in the case of Banks itself where, between the original decision and the review decision, Mr Banks became homeless and therefore the original decision became deficient because it did not address the issue of priority need.) In the latter type of case when a decision maker is considering confirming a decision on different grounds to those which operated on the mind of the original decision maker a “minded to find” letter is appropriate. That however is not the case here. The review officer concluded, rightly in my judgment, that there was no deficiency in the original decision maker’s decision and not that there was a deficiency or irregularity but that, notwithstanding such decision or irregularity, she was minded to make a decision against the interests of the Applicant. I accept the force of the submissions made on behalf of the Respondent and conclude that the Original Decision did not become deficient as a result of the review officer dealing with additional matters raised by Shelter or in subsequent interview on the facts of this case. This is not a case, in my judgment, where, looking at the matter broadly and untechnically, an important aspect of the case was not adequately addressed by the original decision maker.”[38]This analysis is again deployed by Miss Orme as her principal argument on behalf of the Council. However it fails to give regulation 8 (2) the purposive construction required by the decision in Banks, the relevant purpose being one of overall fairness in giving the applicant the opportunity to make representations for the purposes of the review.[39]While it is superficially attractive to draw a distinction between new matters and matters known to the applicant from the outset, I do not see that there is any real distinction between a new matter and a matter, such as confusion, which is capable of explaining the very reason why the point was not taken at the point of the original decision.[40]It follows that Banks was interpreted too narrowly by the judge below, confining the principle that one can look at new matter to determine deficiency only to cases where the point could not have been taken by the applicant at the outset.[41]Importantly, I do not believe that Lambeth LBC v. Johnston, the case which contains the most comprehensive review of the authorities, is authority for the proposition for which Miss Orme contends. In that case, Rimer LJ at [48] described the review as, “a review of [the original] decision in the nature of a reconsideration of the applicant’s application, being a reconsideration 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 any representations made on his behalf.”[42]In that case there was a long period of time between the original decision and the material review decision. At [36] Rimer LJ cited the second judge’s conclusion, which the Court of Appeal upheld, that, “…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 [the applicant] of an important right and opportunity in the decision making process.”[43]It is plain from [35] of Rimer LJ’s judgment that a material fact had not “emerged as an issue” until after the date of the original decision. I also note that Rimer LJ at [40] quoted from Carnwath LJ’s analysis (at [24] of Hall v. Wandsworth) of Lord Bingham’s summary in Runa Begum, in which Carnwath LJ pointed out at [25] that the role of the reviewer is that of an administrator, not an independent tribunal. Thus rules of court about evidence available at the date of the decision being reviewed do not necessarily apply. Again, to take a literal view would run counter to what Lawrence Collins LJ said at [71] in Banks v. Kingston upon Thames RLBC.[44]Miss Orme maintains that there was no deficiency in the original decision for three other reasons. First, she submits that the question whether there is a deficiency in an original decision is a matter for the reviewing officer having regard to the relevance and importance of the matter raised by the applicant on the review. Miss Orme relies on Ibrahim at [38], but I do not think (if such is alleged) that Etherton LJ’s comments were intended to suggest that the decision was a subjective one. On the contrary, he held that the only conclusion which a reviewer could have reached was that the incorrect statement of the Council’s duty to the applicant was entirely unimportant and irrelevant in that case.[45]One of the issues is therefore on whom rests the responsibility of deciding whether there is a deficiency in the original decision? The reviewing officer rejected as unfounded Ms Mohamoud’s assertions about her command of English and her misunderstanding of the system. The question for us is, was she entitled to do so?[46]Some common sense has to be applied. To the extent that the assertions were manifestly insupportable Ms Carter was entitled to hold that there had been no deficiency in the original decision in failing to consider them and therefore no requirement for a “minded to find” notice. If she were to make such a finding, however, she should have given full and detailed reasons for doing so which would enable this court to take a view as to the sufficiency of that finding. If on the other hand Ms Mohamoud’s reasons were at all plausible, more than shadowy, a “minded to find” notice should have been sent to enable Ms Mohamoud to argue the point.[47]This is no more than to say that there is an objective assessment (having regard to subjective factors relating to the personal circumstances of the applicant) of whether any assertion as to deficiency or irregularity in the original decision is of sufficient importance to the fairness of the procedure as to justify an extra procedural safeguard.[48]Miss Orme’s submissions are predicated on the assumption that if the correct procedure had been followed the outcome would inevitably have been the same. I do not believe that is right; Ms Mohamoud says that if she had been able to understand the process correctly she would have accepted, rather than rejected, the accommodation offered and there is no evidence to show that this is necessarily incorrect.[49]Secondly, Miss Orme submitted that the relevance of the original decision is as to the suitability of the property and the reasonableness of accepting or rejecting it and not whether or not the applicant understood the process. However I do not think that s. 193 of the Act is limited in this way. It is true that the authority’s duty is discharged if the applicant refuses an offer of suitable accommodation, but the Regulations (and in particular regulation 8) are all about procedural safeguards to ensure that the applicant is fairly treated. Notification under the Regulations is not merely formulaic; it is there to ensure that the applicant understands the process.[50]Miss Orme relied in support of this argument on the decisions of the Court of Appeal in Slater v. Lewisham LBC [2006] EWCA Civ 394; [2006] HLR 37 and Solihull Metropolitan BC v. Khan [2014] EWCA Civ 41. However both those cases were about whether the accommodation was in all the circumstances objectively suitable, rather than, as here, whether the refusal was informed. I do not therefore consider that those cases are directly in point.[51]Thirdly, Miss Orme relies on the fact that the alleged deficiency was not complained about at the review stage, saying that this must weigh against the applicant who has been given, but has not taken, an opportunity to make such complaint. However the submission goes against the finding in Johnston that a reviewing officer’s failure to serve a “minded to find” notice is not cured by the applicant having had the opportunity to make representations before the decision. In Ibrahim the lack of complaint was merely one of the matters which Etherton LJ took into account in deciding that the outcome would have been the same in any event. I observe that in the present case Shelter did draw the reviewing officer’s attention to the relevant matters. Conclusion[52]The question for this court is whether the reviewing officer’s determination that there was no “deficiency or irregularity” in the original decision was unlawful. If it was not, then no question of a “minded to find” notice can arise. In the present context this means, was the matter contained in Shelter’s letter objectively of sufficient importance to the fairness of the procedure to justify the extra procedural safeguard imposed by regulation 8 (2)? On the facts of this case, the issue is whether, notwithstanding Shelter’s letter, the reviewing officer justifiably (a word I stress) found that Ms Mohamoud was aware of the effect of her refusal of the offer.[53]It may be the case that Ms Mohamoud was confused about the system. There is insufficient evidence before us for me to be convinced that the reviewing officer was entitled to conclude that there was nothing in Ms Mohamoud’s arguments on this point.[54]The review decision being challenged was taken some considerable time ago, but it seems that Ms Mohamoud is still in housing need. There is therefore some point in having a further review.[55]I appreciate that this means that there will be an extra layer of bureaucracy and that the Council will fear that an applicant, unsuccessful at the stage of the original decision, can have another bite at the cherry at the review stage by asserting fresh matters already known to him. However, each case depends on its own facts and where, as here, the applicant’s case is one of confusion it strikes at the heart of the fairness of the procedure. As Rimer LJ said in Lambeth v. Johnston at [52]-[53], “…it appears to me that reg. 8 (2) confers a potentially invaluable procedural right in all cases. 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.”[56]I would only add that Ms Mohamoud should not take this judgment as meaning that she will inevitably receive another offer of accommodation. All that is ordered is that the Council’s review decision should be quashed on the basis that a “minded to find” notice ought to have been served. The merits of the review are a matter for the Housing Officer.

Lord Justice McFarlane :

[57]I agree.

Lord Justice Moore-Bick :

[58]I also agree that the appeal should be allowed for the reasons given by Proudman J., but since we are differing from a judge with considerable experience in these matters, I propose to add a few words of my own.[59]The circumstances giving rise to the appeal have been described by My Lady, whose account I gratefully adopt. An obligation to notify the applicant that the reviewing officer is minded to make a decision against his or her interests, and to explain why, arises only if the reviewing officer considers that there is a deficiency or irregularity in the original decision. It might have been thought that failing to take into consideration events that had not occurred at the time that decision was made could not constitute a deficiency, but in Banks v Kingston-upon-Thames RLBC [2008] EWCA Civ 1443, [2009] HLR 29 this court held that Regulation 8(2) of the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 was to be construed purposively to ensure that a person who was at risk of being rendered homeless was afforded an opportunity of making representations about his current circumstances before a final decision was made. As a result, the failure of the original decision-maker to take into account subsequent events which it would have been unfair for him to ignore if they had already taken place at the time of his decision is sufficient to give rise to a deficiency in that decision. In effect, such events, sometimes referred to as “new matters”, are treated as if they had already occurred and been ignored by him. Accordingly, if the reviewer is minded to uphold the decision, he must notify the applicant who then has an opportunity to make representations.[60]In this appeal the appellant seeks to apply the principle in a different context. Banks was a genuine case of new matters in the sense that it turned on events that had not occurred at the time of the original decision and so could not have been taken into account by the decision-maker. In the present case, by contrast, the matters on which the appellant relies in order to show that there was a deficiency in the original decision are “new” only in the sense that they surfaced for the first time after the original decision had been made. The appellant relies on circumstances which she says existed at the time that decision was made but were not drawn to the attention of the original decision-maker. None of them arises out of, or as a result of, events that occurred after the date of that decision.[61]Although the Homeless Application Form which was completed by the appellant in conjunction with the housing officer, the letter informing her that the respondent accepted that it owed her a duty and the letter offering her accommodation all stated several times and in clear terms that she would receive one offer of accommodation only, the appellant says that she thought that she would receive three offers of accommodation and (by implication) that when she rejected an offer she had been under the misapprehension that she could refuse at least two with impunity. She says that there were three reasons for her confusion: the fact that English is not her first language; the fact that the letter notifying her that the Council owed her a duty to offer her accommodation told her that she could bid for up to three properties each week on its website; and the fact that her friends had told her that she was entitled to receive three separate offers. These points were all raised on the appellant’s behalf for the first time after she had been notified of the Council’s original decision to treat its duty to her as having been discharged and before the review decision, but they found no favour with the reviewing officer. The question for us is whether they were sufficient to disclose a deficiency in the original decision and whether a “minded to” letter should therefore have been sent.[62]I have some sympathy for the reviewing officer. Although English was not the appellant’s first language, she had declined the offer of assistance from an interpreter when completing the Homeless Application Form and had apparently been able to complete that process without giving any indication that she did not have a good enough grasp of the language to understand what the form said and what she was being told by the housing officer. The reviewing officer, Ms Carter, interviewed her and was able to judge her understanding of the language for herself. She was, of course, aware of the contents of the form, the way in which the housing officer deals with applicants and of the terms of the letters subsequently sent to the appellant. She must have found it difficult to believe that the appellant had been confused and had not understood clearly that she would receive only one offer of accommodation.[63]If I had been satisfied that the reviewing officer had been entitled to conclude that the appellant’s objections were fanciful and entirely without foundation, I should have been in favour of dismissing the appeal on the grounds that she was entitled to conclude that there had been no deficiency or irregularity in the original decision. However, as the authorities to which Proudman J. has referred demonstrate, the purpose of Regulation 8 (2) is to ensure that the applicant has an opportunity to make representations before a final decision is made against his or her interests. In this case the essence of the appellant’s case was that she had been confused and had rejected the offer of accommodation under a misapprehension. If that was true and if it had been drawn to the attention of the original decision-maker, it might have led her to conclude that the appellant had not made an informed decision and that her apparent refusal of the offer could not be taken at face value. In those circumstances the housing officer might not have made the same decision and the appellant might have remained a person to whom the Council owed a duty under the Act.[64]In my view, although the reviewing officer was entitled to be highly sceptical of the appellant’s explanations, she was not in a position to reject them out of hand. It follows that she ought to have accepted that there was a deficiency in the original decision and that, before herself making a decision against the interests of the appellant, she should have notified her that she was minded to do so. The appellant would then have had an opportunity to make representations about her reasons for refusing the offer before a final decision was made. Since the reviewing officer did not take that course, I agree that her decision was flawed.[65]For these reasons, as well as for those given by Proudman J., I too would allow the appeal.

Cited in 3 later judgments