R (Sambotin) v London Borough of Brent [2018] EWCA Civ 1826 

This case is a very interesting one and related to when a Local Authority can revisit a decision made.  It also touches on the position in relation to Section 198 referrals and when the conditions are met for a referral of a homeless case to another Local Authority.   

The case concerned S who was a Romanian national who had worked on and off in the UK having moved to the UK in October of 2013.  In September 2015, S was on holiday in Romania and following on from a road collision was unable to initially return to employment.  S returned to the UK in February 2016 and was unable to secure his previous accommodation.  He sofa surfed for several months before approaching the London Borough of Waltham Forest as a homeless applicant some 6 months later, on the 12th of August 2016.  

The London Borough of Waltham Forest issued a Section 184 decision letter finding that S was not eligible for homelessness assistance within the meaning of S. 185 Housing Act 1996. 

The issue of eligibility turned on the complex issue of whether or not S had the status of a worker so as to be exercising his EEA treaty rights. 

In November 2016, S moved to the area of Brent and subsequently approached Brent Council as homeless.  Brent accepted that S was eligible for assistance and found him to be owed the main housing duty.  

Brent Council in it’s decision letter stated: 

“We are satisfied that you are homeless as defined by section 175 of the above Act;

We are satisfied that you are eligible for assistance as defined by section 185 of the above Act;

We are satisfied that you fall within the category of priority need as defined by section 189 of the above Act;

We are satisfied that you are not homeless deliberately as defined by section 191 of the above Act

However we are not satisfied that you have a local connection with this authority as defined by section 198 of the above Act.”

Brent Council sought to refer S’s case back to Waltham Forest pursuant to local connection provisions which are contained within S. 198 to 200 of the Housing Act 1996.  

Section 198 Housing Act 1996 reads: 

“(1) If the local housing authority would be subject to the duty under section 193 (accommodation for those with priority need who are not homeless intentionally) but consider that the conditions are met for referral of the case to another local housing authority, they may notify that other authority of their opinion.

(2) The conditions for referral of the case are met if –

(a) neither the applicant nor any person who might reasonably be expected to reside with him has a local connection with a district of the authority to whom his application was made,

(b) the applicant or a person who might reasonably be expected to reside with him has a local connection with the district of that other authority, and

(c) neither the applicant nor any person who might reasonably be expected to reside with him will run the risk of domestic violence in that other district.

This effectively measns that, a housing authority is able to refer an applicant who is owed the main housing duty but does not have a local connection to their district, to another housing authority, if it considers that the conditions for a referral are met. 

Waltham Forest refused Brents referral and stated that S was not eligible for assistance.  The representations made from Waltham Forest to Brent prompted Brent to revisit their decision to S.  Brent wrote to S revising their initial decision and informed him in their letter that he was not eligible for assistance on the basis that they were entitled to revisit the decision as it has resulted from a fundamental mistake of fact.  

Naturally, S sought Judicial Review of Brent’s decision to revise their initial decision and to state that S was not eligible for assistance .  

The general rule in relation to revisiting a decision is as follows: 

 ‘Once a public authority exercising a statutory power has decided how the power is to be exercised, it will lack further authority and be functus officio [and] any later attempt to remake the decision will be outside the authority’s powers .     

The Court in Judgement explained that there is,  ‘strong and obvious public policy interest in finality, which allows individuals to rely on statutory decisions without having to worry that they may later be changed’. 

This rule is subject to three exceptions. A decision may be revisited where:

(1) There has been fraud;

(2) there has been a fundamental mistake of fact;

(3) or where the decision was not a final one, the public authority having not yet completed their inquiries.

Brent sought to argue that in these circumstances, the matter fell within the third exception and that a final decision had yet to be made.  

The Court of Appeal rejected this argument put to them by Brent, and stated that the main housing duty crystallises under Section 193(2) when the Authority has satisfied itself about the four qualifying conditions under Section 193(1).  From that point onwards, the only question is which authority is to be responsible for discharging the duty.

A local connection referral can only be made under Section 198 once a final decision has been made that the applicant is owed the duty under Section 193 (2) Housing Act 1996.  The Court of Appeal rejected the notion that a final decision had yet to be made and stated that the only question outstanding is which authority would be responsible for discharge of the main duty.  

A very interesting case which not only addressed when an Authority can revisit a decision but also the Section 193 referral process and it’s implications. 

By Isabelle Alajooz who is based in our Brixton office and is the head of the housing team at Abbotts Martin. She is renowned for giving excellent advice and an outstanding level of service to her clients.