The applicants appealed refusal of their applications for housing having priority housing need being vulnerable because of their mental illness. They said that the original decisions had been reviewed, and that on review deficiencies had been identified in the decisions, but they had not been given opportunity themselves to make representations about the decisions.
Held: The scheme required the reviewing officer to give advance notice of an adverse decision and to allow representations. There was no reason to limit that duty to situations which might give rise to a legal challenge to the decision. The duty arose whenever, looking at the matter broadly, it seemed that an important issue had not been addressed.
Carnwath LJ said: ‘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.’
As to the meaning of ‘deficiency’, Carnwath LJ said: ‘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 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’ . . on which the officer’s conclusion will only be challengeable on Wednesbury grounds.
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.’
Judges:
Lord Justice Waller Lord Justice Aldous Lord Justice Carnwath
Citations:
[2005] 2 All ER 192, Times 07-Jan-2005, [2004] EWCA Civ 1740, [2005] HLR 23
Links:
Statutes:
Jurisdiction:
England and Wales
Citing:
Cited – Regina v London Borough of Camden ex parte Pereira CA 20-May-1998
When considering whether a person was vulnerable so as to be treated more favourably in applying for rehousing: ‘The Council should consider such application afresh applying the statutory criterion: The Ortiz test should not be used; the dictum of . .
Cited – Runa Begum v London Borough of Tower Hamlets (First Secretary of State intervening) HL 13-Feb-2003
The appellant challenged the procedure for reviewing a decision made as to the suitability of accomodation offered to her after the respondent had accepted her as being homeless. The procedure involved a review by an officer of the council, with an . .
Cited – Associated Provincial Picture Houses Ltd v Wednesbury Corporation CA 10-Nov-1947
Administrative Discretion to be Used Reasonably
The applicant challenged the manner of decision making as to the conditions which had been attached to its licence to open the cinema on Sundays. It had not been allowed to admit children under 15 years of age. The statute provided no appeal . .
Cited by:
Cited – Shala and Another v Birmingham City Council CA 27-Jun-2007
The claimants succeeded in their applications for asylum, and then applied for housing assistance. They now appealed refusal of such assistance. The issue was how the authority had treated their medical evidence in the review process. Mrs Shala was . .
Cited – Mitu v London Borough of Camden CA 1-Nov-2011
The claimant had applied for housing under homelessness provisions saying that he was in priority need and was not homeless intentionally. The first decision had been that he was intentionally homeless and not in priority need. After review, it was . .
Lists of cited by and citing cases may be incomplete.
Housing
Updated: 28 June 2022; Ref: scu.220953