West Law Report

Housing review officer’s duty

Posted in Times Law Report by mrkooenglish on July 2, 2008

From The TimesJune 30, 2008

Housing review officer’s duty
Court of Appeal

Published June 30, 2008

Johnston v Lambeth London Borough Council

Before Lady Justice Smith, Lord Justice Lawrence Collins and Lord Justice Rimer

Judgment June 19, 2008

A local government officer reviewing a decision that an applicant did not have priority need as a homeless person could neither dispense with the statutory duty to consider the earlier decision nor, if mindful to find against the applicant, to give notice to allow the applicant to make written or oral representations.

The Court of Appeal so stated when dismissing the appeal of Lambeth London Borough Council against Mr Recorder Barker who, in Wandsworth County Court on July 31, 2007, allowed an appeal by Robert Johnston challenging a decision of a review officer under section 202 of the Housing Act 1996 to uphold Lambeth’s earlier decision that Mr Johnston did not have priority need for assistance as a homeless person. The recorder held Lambeth in breach of regulation 8(2) of the Allocation of Housing and Homelessness (Review Procedures) Regulations (SI 1999 No 71).

Mr Robert Latham for Mr Johnston; Mr Jon Holbrook for Lambeth.

LORD JUSTICE RIMER said that regulation 8(2) was not a discretionary option that the review officer could apply or disapply according to whether or not he considered that the service of a “minded to find” notice would be of material benefit to the applicant.

It imposed a dual mandatory obligation on 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; second, if there was, and if the review officer was none the less 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 his Lordship’s judgement, there was no discretion on the review officer to give himself a dispensation from complying with either of those obligations. The first part was not a purely subjective exercise but failure to arrive at the right consideration could be challenged on usual public law grounds. As to the second part, the language of the regulation was unambiguously mandatory.

Regulation 8(2) conferred a potentially invaluable procedural right in all cases. 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 was mistaken was potentially of great benefit to an applicant. Lord Justice Lawrence Collins and Lady Justice Smith agreed.

Solicitors: Goldbergs; Mr Mark Hynes, Lambeth.

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