Lambeth LBC v Johnston
This case concerns the application of Regulation 8(2) of the Review Regulations. The procedure for the review of a decision on a homelessness application is covered by these regulations, which say that, if a reviewer thinks there is a deficiency or irregularity in the decision, or how it was reached, but is nonetheless minded to make a decision which is against the interests of the applicant in some way, the reviewer must notify the applicant:
(a) that this is the decision he intends to make and why; and
(b) that the applicant, or someone acting on his behalf, may make representations orally or in writing or both.
In September 2004, the appellant, who had a history of drug and alcohol abuse, applied to the authority as homeless, and was placed in interim accommodation. The officer who interviewed him considered him to be vulnerable and in priority need but made no actual decision on the application. The appellant remained in the interim accommodation. In September 2005, another officer - who did not conduct an interview and did not make any further inquiries - decided that the appellant was not in priority need because his history of drug and alcohol abuse did not render him vulnerable.
The appellant requested a review and made representations. In February 2006, the authority upheld their decision that the appellant was not in priority need. On appeal to the county court, that decision was quashed on the ground that it was Wednesbury unreasonable and remitted for reconsideration. The judge also commented that failure to interview the appellant before making the decision had constituted a serious procedural irregularity which should have engaged reg.8(2).
The authority carried out further inquiries into the appellant’s medical needs, including fresh medical reports. The appellant’s solicitors made further representations and provided additional evidence in support of his assertion of priority need. The authority allowed the appellant to comment on the evidence which they obtained from their own medical adviser. In February 2007, the authority made their second review decision, again finding the appellant not in need.
The appellant appealed to the county court on the ground, amonst others, that there had been a breach of reg.8(2) because any reasonable reviewing officer should have concluded that there had been a deficiency or irregularity with the original decision on the basis that no inquiries had been made between interview in October 2004 and decision in September 2005, as the county court judge had observed. The reviewing officer provided a witness statement in which she said that she had considered whether to send a “minded to find” notice under reg.8(2) but had decided not to do so because the issues had already been thoroughly canvassed in the first appeal, and the appellant was aware of the authority’s position and was represented by specialist housing solicitors.
The county court allowed the appeal. The authority appealed to the Court of Appeal submitting that:
(a) the review decision-maker had considered reg.8(2);
(b) the circumstances of the case (including the parties’ knowledge of the issue on which the decision turned and the fact that there had been extensive representations made during the review process) meant that reg.8(2) was rendered otiose;
(c) the appellant’s solicitors had never requested a “minded to find” letter; and
(d) no prejudice had been caused to the appellant.
Dismissing the appeal, the Court of Appeal held that a reviewing officer does not have a discretion to serve a “minded to find” notice depending on whether the notice would be of material benefit to the appellant. Regulation 8(2) imposes an obligation on the officer to consider whether there is a deficiency or irregularity in the s.184 decision and, if deciding that there is, to notify the appellant if he is nonetheless minded to make a decision adverse to the applicant. The loss of that final opportunity to seek to persuade an authority to change their mind, whether by written or oral submissions, was seriously prejudicial.
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 EWCA Civ 690