20 July 2018, by Connor Johnston
Kamara v London Borough of Southwark, Leach v St Albans City and District Council, Piper v South Bucks District Council  EWCA Civ 1616, 12 July 2018
The Appellants each applied to their respective local authority for homelessness assistance. Each received a negative decision and, in due course, requested a review of that decision. In the course of the review process each applicant received a letter purporting to comply with regulation 8(2) of the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999, SI 1999/71.
Regulation 8(2) (which has now been replaced by regulation 7 of the Homelessness (Review Procedure etc) Regulations 2018, SI 2018/223) stated as follows:
“If the reviewer considers that there is a deficiency or irregularity in the original decision, or in the manner in which it was made, but is minded nonetheless to make a decision which is against the interests of the applicant on one or more issues, the reviewer shall notify the applicant–
(a) that the reviewer is so minded and the reasons why; and
(b) that the applicant, or someone acting on his behalf, may make representations to the reviewer orally or in writing or both orally and in writing.”
In all three of the cases, the regulation 8(2) letter informed the applicant that she had the right to make further oral and/or written representations but did not expressly inform her that she had the right to make oral representations at a face-to-face interview.
In each case the applicant’s solicitors made further written representations and in each case, following consideration of these representations, the original decision was upheld. The applicants’ appeals to their respective county courts were dismissed.
On a second appeal to the Court of Appeal, the applicants argued that the local authorities had failed to comply with regulation 8(2) by failing to inform them of their right to a face-to-face interview. The applicants relied on the case of Makisi v Birmingham City Council  EWCA Civ 355. In that case, the local authority had informed the applicants of their right to make oral or written representations but had refused to allow them a face-to-face interview, saying that any oral representations had to be made by telephone. The Court of Appeal found that the local authority had erred in its interpretation of the regulations: the applicants were entitled to an oral hearing in order to make their representations.
The applicants in the present case relied on the principle of legality which, they argued, required that ‘the law should be made known’ and that ‘the individual must be able to know of his rights and obligations’. If Makisi confirmed that an applicant is entitled to a face-to-face interview then the corollary of that, applying the principle of legality, is that the applicant should be told about it.
The Court of Appeal dismissed the applicants’ appeals. The fact that the applicants were entitled to a face-to-face interview in order to make their representations did not mean that the regulation 8(2) letter had to say so expressly. To hold otherwise would be to read words into the regulations unnecessarily. The regulations simply required that the applicants should be informed of their right to ‘make representations to the reviewer orally or in writing or both orally and in writing’. The letters in the instant cases had met this requirement.