EWCA Civ 1616
Patten and David Richards LJJ
July 12, 2018
The Court of Appeal has held that reg.8(2) of the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999/71, does not require a local housing authority to specify in a “minded-to” letter that an applicant may make representations to the reviewer orally at a face-to-face meeting.
Toby Vanhegan of Arden Chambers appeared for all three appellants, Hannah Gardiner appeared for the appellant Miss Leach, Christopher Baker appeared for Southwark LBC, and Robert Brown appeared for South Bucks DC
In England, Part 7 of the Housing Act 1996, as amended, governs the provision by local housing authorities of assistance to homeless persons. An applicant who is dissatisfied with a decision of an authority under Pt 7 has the right to ask the authority to carry out a review of that decision: s.202.
The Secretary of State has power to make regulations governing procedure on review: s.203(1). The regulations may, inter alia, make provision “as to the circumstances in which the applicant is entitled to an oral hearing, and whether and by whom he may be represented at such a hearing”: s.203(2)(b).
In England, where a review was requested before 3 April 2018, the procedure is governed by the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 (SI 1999/71); if the request for a review is made on or after that date, the procedure is governed by the Homelessness (Review Procedure etc.) Regulations 2018 (SI 2018/223).
Regulation 8(2) of the 1999 Regulations provides:
“(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.”
(Regulation 7(2) of the 2018 Regulations is in materially the same terms).
In Makisi v Birmingham CC  EWCA Civ 355;  HLR 27, the Court of Appeal held that a right to make oral representations is most naturally understood to be a right exercisable at a face to face meeting, even if it is not confined to such a meeting. Accordingly, where reg.8(2) applies, the applicant has the right to a face-to-face oral hearing, with his representative present.
An applicant who is dissatisfied with the decision on review may appeal to the county court on a point of law: s.204.
In each case, the appellants had applied to their respective local housing authorities for assistance under Pt 7. Decisions contrary to their interests were made and each appellant requested a review.
The authorities all issued “minded-to” letters, pursuant to reg.8(2). The letters all specified that representations could be made orally or in writing or both orally and in writing. None of them, however, specified that this meant that the appellant could insist on a face-to-face meeting.
Each appellant appealed unsuccessfully to the county court and then to the Court of Appeal, contending, inter alia, that the proper construction of reg.8(2) required the entitlement to a face-to-face meeting to be expressly set out in a “minded-to” letter.
The Court of Appeal dismissed all three appeals. It was evident from the language of reg.8(2) that the right to make oral representations could be exercised at a face-to-face meeting. It was not necessary to expand upon the scope of the notification required in order for an applicant or his advisors to understand that.
If reg.8(2) was to be construed as requiring a review officer to set out the various ways in which oral representations could be made, that would create the obvious danger that any list provided could be criticised as incomplete. If reg.8(2) was understood as doing no more than requiring the review officer to set out the provisions of reg.8(2)(b) verbatim, it provided a simple and certain instruction which, if followed, informed an applicant of his ability to elect to make representations in the way that he found most convenient. There was nothing obscure or unfair in that process.