Homelessness code of guidance for local authorities

Chapter 19: Review of decisions and appeals to the county court

Guidance on the procedures to be followed when an applicant requests a review of decisions reached on their homelessness application.

19.1 This chapter provides guidance on the procedures to be followed when an applicant requests the housing authority to review any decision on their case.

Right to request a review

19.2 Applicants have the right to request the housing authority review their decisions on homelessness cases in some circumstances. If the request is made in accordance with section 202 the housing authority, or housing authorities, concerned must review the relevant decision.

  1. 19.3 Under section 202(1) an applicant has the right to request a review of a housing authority’s decision:

    1. (a) of their eligibility for assistance (section 202(1)(a));

    2. (b) what duty (if any) is owed to them in relation to the duties owed to persons found to be homeless or threatened with homelessness (section 202(1)(b));

    3. (c) of the steps the housing authority are to take under section 195(2) which includes having regard to their assessment of the applicants case in the personalised housing plan at the prevention duty (section 202(1)(bc)(i));

    4. (d) to give notice to bring the prevention duty to an end (section 202(1)(bc)(ii));

    5. (e) of the steps the housing authority are to take under section 189B(2) which includes having regard to their assessment of the applicant’s case in the personalised housing plan at the relief duty (section 202(1)(ba)(i));

    6. (f) to give notice to bring the relief duty to an end (section 202(1)(ba)(ii));

    7. (g) to give notice under section 193B(2) in cases of deliberate and unreasonable refusal to co-operate (section 202(1)(bb));

    8. (h) to notify their case to another authority under section 198(1) (i.e. a decision to refer the applicant at the main housing duty, to another housing authority because they consider that the conditions for referral are met) (section 202(1)(c));

    9. (i) under section 198(5) as to whether the conditions are met for the referral of their case to another housing authority at the relief duty or main housing duty (including a decision reached either by agreement between the notifying and notified authority, or taken by a person appointed under the Homelessness (Decisions on Referrals) Order 1998 where agreement cannot be reached) (section 202(1)(d));

    10. (j) under section 200(3) (i.e. where a decision is made that the conditions for referral are not met and so the notifying housing authority owe the section 193 main housing duty) or a decision under section 200(4) (i.e. a decision that the conditions for referral to a notified authority in Wales are met and the notified authority owe the section 193 main housing duty) (section 202(1)(e));

    11. (k) as to the suitability of accommodation offered to the applicant under any of the provisions in paragraph (b) or (j) above or the suitability of accommodation offered under section 193(7) in relation to allocations under Part 6 (section 202(1)(f)). Applicants can request a review of the suitability of accommodation whether or not they have accepted the offer (section 202(1B));

    12. (l) as to the suitability of accommodation offered to the applicant by way of a private rented sector offer under section 193 (section 202(1)(g)); or,

    13. (m) as to the suitability of accommodation offered to the applicant by way of a final accommodation offer or a final Part 6 offer under section 193A or 193C (section 202(1)(h)). Applicants can request a review of the suitability of accommodation whether or not they have accepted the offer.

19.4 An applicant must request a review before the end of the period of 21 days beginning with the day on which they are notified of the housing authority’s decision. The housing authority may specify, in writing, a longer period during which a review may be requested.

19.5 In reviewing a decision, housing authorities will need to have regard to any information relevant to the period before the decision was made (even if only obtained afterwards) as well as any new relevant information obtained since the decision.

19.6 In the case of (i) above (a decision on whether the conditions are met for the referral of the applicant’s case to another housing authority) the request for a review must be made to the notifying authority.

19.7 There is no right to request a review of a decision reached on an earlier review.

The Review Procedures Regulations

19.8 The Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 have been revoked and replaced by the Homelessness (Review Procedure etc.) Regulations 2018. These regulations set out the procedures to be followed by housing authorities in carrying out reviews under Part 7.

Who may carry out the review

19.9 A review may be carried out by the housing authority itself which made the original decision or by someone acting as an agent of the housing authority. For further guidance on contracting out homelessness functions see Chapter 5. Where the review is to be carried out by an officer of the housing authority, the officer must not have been involved in the original decision, and they must be senior to the officer (or officers) who took that decision. Seniority for these purposes means seniority in rank or grade within the housing authority’s organisational structure. The seniority provision does not apply where a committee or sub-committee of elected members took the original decision.

19.10 The same officer is able to carry out multiple reviews relating to a single case as long as they were not involved in the original decisions.

19.11 Where the decision under review is a joint decision by a notifying housing authority and the notified housing authority as to whether the conditions of referral of a case are satisfied, section 202(4) requires that the review should be carried out jointly by the 2 housing authorities.

19.12 Where the decision under review was taken by a person appointed by the notifying and notified authority, the review of that decision must also be carried out by a person appointed by the 2 authorities (see paragraph 19.25).

Written representations

19.13 An applicant is not required to provide grounds or reasons for challenging the housing authority’s decision in their request for review, but should be invited to do so. The purpose of this is to invite the applicant to state their grounds for requesting a review (if they have not already done so) and to elicit any new information and particular issues that the applicant may have in relation to their request for a review.

19.14 Regulation 5 requires the housing authority to notify the applicant that they, or someone acting on their behalf, may make written representations in connection with the request for a review.

  1. 19.15 Regulation 5 also provides that the housing authority must notify the applicant that if they chose to make written representations where the request for review relates to:

    1. (a) the steps the housing authority is to take under sections 195(2) and 189B(2) which includes having regard to their assessment of the applicants’ case in the personalised housing plan (during the prevention or relief duty) (section 202(1)(ba)(i) or (bc)(i)); or,

    2. (b) a notice bringing the prevention duty to an end (including where the reason for this is deliberate and unreasonable refusal to co-operate) (section 202(1)(bc)(ii) and (bb)).

The representations must be made to the housing authority within 2 weeks from the day on which the applicant requested the review. The regulations provide that this 2 week period is open to be extended to a longer period if the applicant and reviewing authority agree in writing.

19.16 Applicants should already have been provided with copies of their assessments and personalised housing plan which they will be able to share with any legal representatives. Housing authorities should provide further copies or any further information requested as quickly as possible to minimise delays.

19.17 Where the request for a review falls outside of the decisions listed under 19.15, written representations should be made within a reasonable period to allow sufficient time for the housing authority to respond to the review within the prescribed timeframe (see paragraph 19.23).

19.18 The housing authority must also notify the applicant of the procedure to be followed in connection with the review (if this information has not been provided earlier).

  1. 19.19 Regulation 5 also provides that:

    1. (a) where the original decision was made jointly by the notifying and notified housing authorities under section 198(5), the notification should be made by the notifying housing authority; and,

    2. (b) where the original decision was made by a person appointed in accordance to the Homelessness (Decisions on Referrals) Order 1998, the notification should be made by the person appointed to carry out the review.

Oral hearings

  1. 19.20 Regulation 7 provides that in cases where a review has been requested, if the housing authority, authorities or person carrying out the review consider that there is a deficiency or irregularity in the original decision, or in the manner in which it was made, but they are minded nonetheless to make a decision that is against the applicant’s interests on one or more issues, they should notify the applicant:

    1. (a) that they are so minded and the reasons why; and,

    2. (b) that the applicant, or someone acting on their behalf, may, within a reasonable period, make oral representations, further written representations, or both oral and written representations.

  1. 19.21 Such deficiencies or irregularities would include:

    1. (a) failure to take into account relevant considerations and to ignore irrelevant ones;

    2. (b) failure to base the decision on the facts;

    3. (c) bad faith or dishonesty;

    4. (d) mistake of law;

    5. (e) decisions that run contrary to the policy of Part 7 of the 1996 Act;

    6. (f) irrationality or unreasonableness; or,

    7. (g) procedural unfairness, e.g. where an applicant has not been given a chance to comment on matters relevant to a decision.

19.22 The reviewer must consider whether there is ‘something lacking’ in the decision, i.e. were any significant issues not addressed or addressed inadequately, which could have led to unfairness. An original decision could subsequently be rendered deficient because of intervening events which occurred between the date of the original decision and the review decision.

Period during which review must be completed

  1. 19.23 Regulation 9 provides that the period within which the applicant (or the applicant’s authorised agent) must be notified of the decision on a review is:

  2. (a) 3 weeks from the day of the request for a review, or 3 weeks from the day on which representations are received, where the original decision falls within:

    1. 202(1)(ba)(i)(reasonable steps to relieve homelessness)
    2. 202(1)(bc)(i) (reasonable steps to prevent homelessness)
    3. 202 (1)(bc)(ii) (notice to bring the prevention duty to an end)
    4. 202(1) (bb) (notice to bring the prevention duty to an end due to deliberate and unreasonable refusal to co-operate)
  3. (b) 8 weeks from the day of the request for a review, where the original decision falls within:

    1. section 202(1)(a) (eligibility for assistance)
    2. section 202(1)(b) (notice as to what duty is owed to the individual)
    3. section 202(1)(ba)(ii) (notice to bring the relief duty to an end)
    4. section 202(1)(c) (referral to another local housing authority where the main housing duty is owed)
    5. section 202(1)(d) (the outcome of the decision on whether the conditions for referral are met)
    6. section 202(1)(e) (the outcome of the decision as to which local authority holds the case either the original local housing authority or the receiving local housing authority)
    7. section 202(1)(f) (suitability of accommodation)
    8. section 202(1)(g) (suitability of accommodation private rented sector)
    9. section 202(1)(bb) (notice to bring the relief duty to an end due to deliberate and unreasonable refusal to co-operate)
  4. (c) 10 weeks, where the original decision falls within section 202(1)(d) and was made jointly by 2 housing authorities under section 198(5) (a decision on whether the conditions for referral are met);

  5. (d) 12 weeks, where the original decision falls within section 202(1)(d) and it was taken by a person appointed by the notifying authority and the notified authority in accordance with the Schedule to the Homelessness (Decisions on Referrals) Order 1998.

The regulations provide that in all of these cases it is open to the reviewing authority to seek the applicant’s agreement to an extension of the prescribed period. Any such agreement must be given in writing.

Late representations

19.24 The regulations require the reviewer(s) to consider any written representations received subject to compliance with the requirement to notify the applicant of the decision on review within the period of the review, i.e. the period prescribed in the regulations or any extended period agreed in writing between the applicant and housing authority. It may in some circumstances be necessary to make further enquiries of the applicant about information they have provided. The reviewer(s) should be flexible about allowing such further exchanges, having regard to the time limits for reviews prescribed in the regulations. If this leads to significant delays, the applicant may be approached to agree an extension in the period for the review. Similarly, if an applicant has been invited to make oral representations and this requires additional time to arrange, the applicant should be asked to agree an appropriate extension.

Procedures for reviews of section 198(5) decisions made by an appointed person

19.25 Where the original decision under section 198(5) was made by a person appointed in accordance with the Schedule to the Homelessness (Decisions on Referrals) Order 1998, regulation 6 requires that a review must be carried out by a person appointed by the notifying authority and the notified authority. If the authorities are unable to reach agreement on an appointed person, and where the review is of the original decision on whether the conditions for referral of a case under section 198(1) are met, the review must be carried out by a person appointed from the panel by the chair of the Local Government Association (LGA), or their nominee.

19.26 The appointed person must not be the same person as the person who made the original decision and they must comply with the relevant procedures set out in the regulations. Specifically, they must invite written representations from the applicant and send copies of these to the 2 housing authorities, inviting them to respond. The reviewer is also required to notify in writing the 2 housing authorities of their decision on review and the reasons for it at least a week before the end of the prescribed period of 12 weeks (or of any extended period agreed with the applicant). This allows the housing authorities adequate time to notify the applicant of the decision before expiry of the period.

19.27 Paragraphs (2) – (4) of regulation 6 set out the procedure to be followed when the notifying and notified authority are unable to appoint a person to carry out a review by agreement. These provisions currently apply to decisions on notifications under section 198(1) at the point of the main housing duty. However local authorities are encouraged to also follow these arrangements in relation to the review of decisions on notifications under section 198(A1).

19.28 Paragraphs (2) – (4) of regulation 6 set out that if the 2 housing authorities fail to appoint a person to carry out the review within 5 working days of the date of the request for a review, the notifying housing authority must request the chair of the LGA or their nominee to appoint a person from the panel. The chair, in turn, must within 7 days of that request appoint a person from the panel to undertake the review. The housing authorities are required to provide the reviewer with the reasons for the original decision, and the information on which that decision is based, within 5 working days of their appointment.

Notification of decision on review

  1. 19.29 Section 203 requires a housing authority to notify the applicant in writing of their decision on the review. The authority must also notify the applicant of the reasons for their decision where it:

    1. (a) confirms the original decision on any issue against the interests of the applicant;

    2. (b) confirms a previous decision to notify another housing authority under section 198(1) (referral of case under the main housing duty); or,

    3. (c) confirms a previous decision that the conditions for referral in section 198 (referral of case under the relief duty or main housing duty) are met in the applicant’s case.

19.30 Where the review is carried out jointly by 2 housing authorities under section 198(5), or by a person appointed in accordance to the Homelessness (Decisions on Referrals) Order 1998, the notification may be made by either of the 2 housing authorities concerned.

19.31 At this stage, the housing authority making the notification must advise the applicant of their right to appeal to the county court under section 204 against a review decision on a point of law, and of the period in which to appeal.

Powers to accommodate pending a review

19.32 Under section 188(2A), where an applicant refuses a final accommodation offer or a final Part 6 offer in the relief stage and requests a review under section 202(1)(h) of the housing authority’s decision as to the suitability of the accommodation offered, the relief duty to the applicant continues to apply despite section 193A(2), and the housing authority must continue to provide interim accommodation for applicants in priority need until the decision on the review has been notified to the applicant.

19.33 Sections 188(3), 199A(6) and 200(5) give housing authorities powers to secure accommodation for certain applicants pending the decision on a review. For further guidance on powers to secure accommodation see Chapter 15.

Prevention and relief activity following a review decision

  1. 19.34 In circumstances where the outcome of one of the following decisions are in the applicants favour, review officers are recommended to use their discretion to assess the impact of the failure across the whole period of the relevant duty and make recommendations which seek to remedy this:

    1. (a) the decision on reasonable steps in the personalised housing plan; or,

    2. (b) the decision to issue a notice bringing the prevention or relief duties to an end.

19.35 For example, if an applicant’s personalised housing plan was completed 3 days after the start of the prevention or relief duty and a review found that steps were unreasonable, the review officer may recommend that the authority work with the applicant to agree new steps and resume prevention or relief activity for a further 53 days.

  1. 19.36 Where an applicant requests a review of the authority’s decision as to whether the conditions are met for the referral of their case to another housing authority at the relief stage the relief duty will rest with the notified authority whilst the review is conducted. If the review officer decides that the conditions for referral were not met and that the applicant should not have been referred to another housing authority, they are encouraged to make recommendations based on the following considerations:

    1. (a) the reasonable wishes of the applicant;

    2. (b) the relief activity that has taken place to date by both or either authorities;

    3. (c) how relevant this activity is in the geographical context of the notifying authority given the successful review decision; and,

    4. (d) whether the applicant is in priority need and therefore if they should directly proceed to the main duty after the 56 day period.

Appeals to the county court

  1. 19.37 Section 204 provides an applicant who has requested a section 202 review with the right of appeal on a point of law to the county court if:

    1. (a) they are dissatisfied with the decision on a review; or,

    2. (b) they are not notified of the decision on the review within the time prescribed in regulations made under section 203.

  1. 19.38 An appeal must be brought by an applicant within 21 days of:

    1. (a) the date on which they are notified of the decision on review; or,

    2. (b) the date on which they should have been notified (i.e. the date marking the end of the period for the review prescribed in the regulations, or any extended period agreed in writing by the applicant).

  1. 19.39 The court may give permission for an appeal to be brought after 21 days, but only where it is satisfied that:

    1. (a) (where permission is sought within the 21 day period), there is good reason for the applicant to be unable to bring the appeal in time; or,

    2. (b) (where permission is sought after the 21 day period has expired), there was a good reason for the applicant’s failure to bring the appeal in time and for any delay in applying for permission.

19.40 On an appeal, the county court is empowered to make an order confirming, quashing or varying the housing authority’s decision as it thinks fit. It is important, therefore, that housing authorities have in place review procedures that are robust, fair, and transparent.

Power to accommodate pending an appeal to the county court

19.41 Section 204(4) gives housing authorities the power to accommodate certain applicants during the period for making an appeal, and pending determination of the appeal and any subsequent appeal. For further guidance on powers to secure accommodation see Chapter 15.

Local Government and Social Care Ombudsman

  1. 19.42 Applicants may complain to the Local Government and Social Care Ombudsman if they consider that they have been caused injustice as a result of maladministration in relation to their application for assistance under Part 7 by a housing authority. The Ombudsman may investigate the way a decision has been made, but may not question the merits of a decision properly reached. For example, maladministration would occur where a housing authority:

    1. (a) took too long to do something;

    2. (b) did not follow their own rules or the law;

    3. (c) broke their promises;

    4. (d) treated the applicant unfairly; or,

    5. (e) gave the applicant the wrong information.

  1. 19.43 There are some matters an Ombudsman cannot investigate. These include:

    1. (a) matters the applicant knew about more than 12 months before they wrote to the Ombudsman or to a councillor, unless the Ombudsman considers it reasonable to investigate despite the delay;

    2. (b) matters about which the applicant has already taken court action against the housing authority, for example, an appeal to the county court under section 204; and,

    3. (c) matters about which the applicant could go to court, unless the Ombudsman considers there are good reasons why the applicant could not reasonably be expected to do so.

19.44 Where there is a right of review, and/or a complaints procedure within the housing authority, the Ombudsman would expect an applicant to pursue their rights through these arrangements before making a complaint. If there is any doubt about whether the Ombudsman can look into a complaint, the applicant should seek advice from the Ombudsman’s office.