London Borough of Lambeth v Johnston [2008] EWCA Civ 690

This case concerned an appeal by the London Borough Lambeth (Lambeth) against a county court decision in which the respondent Johnston was successful in his appeal against an earlier decision by Lambeth that he was not in priority need of housing under s189 of the Housing Act 1996.  The county court based its decision on the ground that Lambeth had breached regulation 8 (2) of the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 (the Regulations).

Section 189 of the 1996 Act states that a person “who is vulnerable as a result of old age, metal illness or handicap or physical disability or other special reason ….” has a priority need for housing.   Johnston had a history of alcohol and drug abuse following the breakdown of his marriage.  He had been sleeping rough in Camden and was eventually given temporary hostel accommodation. A homelessness assessment form was completed by his caseworker on the basis that he was vulnerable and in need of priority housing.  The decision by Lambeth under s184 was that he was not in priority need as he did not fall under any of the specified categories of priority need groups as defined by s189.  Johnston had claimed he was vulnerable under this section as a result of “other special reason” within the meaning of s189.  The term vulnerable is interpreted as meaning ‘less able to fend for oneself so that injury or detriment will result where a less vulnerable person will be able to cope without harmful effects.’  Johnston was advised of his right to a review under s202 but was also informed that Lambeth was no longer required to provide him with his current temporary accommodation.   At this time Johnston was receiving support from a street drug agency funded by the PCT.  One of its caseworkers  made representations on Johnston’s behalf that he would have difficulty in finding and maintaining accommodation in the private sector and was concerned about the effect of a negative decision on his housing application.  He was also supported by representations from his GP who deemed him to be extremely vulnerable and in need of a stable environment.  As part of its review decision Lambeth consulted an independent doctor from an agency who found that Johnston had no secondary medical complications of his drug and alcohol abuse and this was behaviour of his choice.  The doctor made no housing recommendation.  The review decision was to uphold the original decision that he was not in priority need.  He was advised of his right to appeal to the county court. 

The county court quashed the review decision for the following reasons:

(i) An inappropriate assessment that Johnston’s medical condition resulted from behaviour of his own choice.
(ii) The review had primarily relied on the report of the independent doctor even though the reviewing officer had a duty to consider different strands of evidence including anything in conflict with those findings.
(iii) Its statement that Johnston’s drug problem had been resolved.

The judge concluded that these considerations made the decision Wednesbury unreasonable i.e. the decision was so unreasonable that no reasonable authority could have come to the same conclusion.  The doctor’s description of his problems being related to behaviour of choice was inappropriate and suggested that no drug addict could be vulnerable.  Her letters did not address the unfinished nature of Johnston’s treatment and were an incomplete analysis of his situation.  The court required Lambeth to carry out a second review of the s184 decision that Johnston was not in priority need.  In reaching its second review decision Lambeth relied on the report of another independent doctor who found that Johnston’s problem was not primarily a medical one.  He noted that there was no confirmed diagnosis of depression or other mental illness and he was not receiving treatment for such disorders.  He saw no medical issues to impair Johnston’s ability to fend for himself and made no housing recommendation.  Lambeth’s decision-maker stated that she had considered the case “afresh” but remained of the view that Johnston would not be less able to fend for himself than an ordinary homeless person and would not suffer injury or detriment and was therefore not in priority need.  He was again reminded of his right of appeal to the county court.

Section 8 (2) of the Regulations states that “… if the reviewer considers there is a deficiency or irregularity in the original decision … but is minded nonetheless to make a decision which is against the interests of the applicant … the reviewer shall notify the applicant … of the reasons why … and that the applicant or someone acting on his behalf may make representations to the reviewer orally or in writing or both …”.  Lambeth decided not to notify the applicant or his representatives, as the issue was well-known to him already and his views had already been thoroughly canvassed.  Furthermore, he had been represented by specialist housing lawyers who had been shown all of the relevant documents and invited to comment on them since the first appeal. 

The Court of Appeal considered the rationale behind regulation 8 (2) and a review decision under s202 of the 1999 Act.  It was not simply a re-consideration of the applicant’s original application; it was a re-consideration in which the review officer can and should take account of further enquiries in relation to the applicant carried out since the original decision as well as any representations made on his behalf.  Even if the review officer considered that the original decision was subject to some vitiating flaw, it was still open to him to come to the same decision if he considered the material before him justified it.  The court held that regulation 8 (2) was not a discretionary option that the review officer could apply or disapply it imposed a mandatory obligation upon the review officer first to “consider” whether there was a deficiency or irregularity in the original decision or in the manner it was made.  Secondly, if there was and the review officer is nonetheless minded to make a decision adverse to the applicant, to serve a “minded to find” notice on the applicant explaining his reasons for his provisional views.  There was no discretion on the reviewing officer to give himself dispensation from complying with either obligation.  The regulation conferred a potentially invaluable procedural right in all cases.  In the circumstances, the court concluded that Lambeth’s review officer’s failure to provide a “minded to find” notice to Johnston was indefensible and unlawful and that failure vitiated her review decision. 

Appeal dismissed

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