Local government - Homelessness - Housing Act 1996

Isokonde Makisi v Birmingham City Council: Selam Yosief v Birmingham City Council: Hussein Nagi v Birmingham City Council: CA (Civ Div) (Lord Justices Maurice Kay, Rimer, Etherton): 31 March 2011

The appellants (X and N) appealed against decisions of the respondent local authority to refuse their requests, in reviews under section 202 of the Housing Act 1996, for oral hearings.

X had become entitled to request reviews and had requested that their reviews be carried out face-to-face by oral hearings. The local authority considered that dealings by telephone would suffice.

On appeal, the county court rejected X’s argument that regulation 8(2) of the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 enabled them to require the local authority to hold an oral hearing.

The local authority had provided N with accommodation, but he requested a transfer on the grounds that the accommodation had become unsuitable.

The local authority sent him a letter stating that the accommodation was still suitable and that he was not considered homeless. N requested a review.

The local authority’s review officer considered there to be no irregularity or deficiency in the decision, but offered N an opportunity to respond.

N requested a face-to-face hearing, which the officer refused in favour of a telephone conference.

The county court held that the officer had been right to find no irregularity or deficiency and dismissed N’s appeal.

The local authority argued that section 184 and regulation 6 supported the view that regulation 8(2) gave local authorities discretion to hold an oral hearing; the regulations, unlike other similar regulations, mentioned only oral representations and not oral hearings; and that allowing applicants to require an oral hearing would judicialise the administrative process of the review.

Held: (1) Regulation 8(2) conferred on an applicant the right to demand an oral hearing.

The regulations had been made under section 203 of the act, Hall v Wandsworth LBC (2004) EWCA Civ 1740, (2005) 2 All ER 192 followed.

Section 203(2)(b) showed that the secretary of state, in making the regulations, had had in mind an entitlement by the applicant to demand an oral hearing.

That was supported by the importance given in Lambeth LBC v Johnston [2008] EWCA Civ 690, [2009] HLR 10 to the right to persuade a review officer by oral advocacy; that envisaged that the right would be exercised face to face, Lambeth followed.

Further, it would have been odd if the secretary of state had intended, without making any express provision, to give the local authority the power to decide whether that invaluable right should be enjoyed (see paragraphs 61-65 of judgment).

Neither section 184 nor regulation 6 indicated that regulation 8(2) gave the local authority discretion whether to hold an oral hearing.

They concerned different stages of a homelessness application.

The fact that the regulations mentioned only oral representations and not oral hearings, in contrast to other regulations made under statutory provisions identical to section 203, did not support the local authority's position.

Those regulations concerned decisions to terminate tenancies and obtain possession; in those circumstances, it was understandable why it was thought necessary to confer an express right to request an oral hearing.

By contrast, regulation 8(2) concerned the review of an administrative decision about the provision of new accommodation and it was understandable why it did not specify a way in which representations could be made, but left that open.

Allowing applicants to require an oral hearing would not judicialise local authorities’ administrative decisions: regulation 8(2) only provided that the applicant could make face-to-face representations to the reviewer.

It did not authorise the calling of third-party witnesses or cross-examination.

X’s appeals were allowed (paragraphs 67-72).

(2) N’s appeal could only succeed if he could establish that no reasonable review officer could have concluded that regulation 8(2) was not engaged because the decision letter had neither disclosed a significant legal or procedural error nor failed to address an important aspect bearing on the decision, Hall followed.

The county court had been right to conclude that there was no deficiency or irregularity in the letter.

It was poorly worded, but it had plainly addressed all the important aspects of the case and could not have left a reasonable reader with any real doubt as to the basis for the local authority's decision (paragraphs 76-77).

Appeals allowed in part.

James Stark for the first appellant (instructed by Community Law Partnership); Patricia Tueje for the second appellant: Nicholas Nicol for the third appellant: Jonathan Manning, Emily Orme, Stephanie Smith, Annette Cafferkey for the respondent.