Homeless reviews and “minded to” letters

When an adviser assists a client with a review of a negative homelessness decision, they will usually try to identify some error in the original decision making process.  The reviewing officer may acknowledge this error, yet decide to uphold the original negative decision.   In this situation, the reviewing officer must send the applicant a “minded to” letter.

Identifying irregularities or deficiencies in the original decision making process

When reviewing a decision on homelessness, the reviewing officer can either

• uphold the original decision or
• submit the application for a fresh decision.

An adviser’s review submissions can include new information, which was not made available to the decision maker as part of the original application.  This information may expose a deficiency in the original process, as the housing officer could not consider it when making a decision.  We recently wrote a series of articles on homelessness reviews and appeals highlighting some of the deficiencies that can be found in a homelessness decision.

If, during the course of his or her investigations, the reviewing officer has identified irregularities or deficiencies in the original decision making process, but still intends to uphold the original decision, the homelessness legislation requires that the officer send a “minded to” letter to the applicant, advising the applicant of the likely outcome of the review.

This provision was made in Article 4 (2) of the Homelessness (Review) Regulations (Northern Ireland) 2010, which states that:

If the Executive 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 Executive shall notify the applicant—

(a) that the Executive is so minded and the reasons why, and

(b) that the applicant, or someone acting on his behalf, may make representations to the Executive orally or in writing or both orally and in writing.

This is an extra safeguard, which provides the applicant with an opportunity to respond, prior to the issuing of the decision on the review.

A right to respond to a “minded to” letter

The reviewing officer, on discovering a failing in the original investigation must either send the minded to letter or submit the application for a fresh decision, depending on the facts of the case.   As shown above, the “minded to” letter must include details of the applicant’s right to respond.

On receiving a “minded to” letter, the applicant has a right to respond to the information contained therein.  Article 4 (2) (b) states that the applicant must be given the opportunity to make representations in response to the “minded to” letter. Furthermore, the applicant may request an oral hearing.

If the Housing Executive fails to send a minded to letter, the applicant has a separate ground for appeal to the County court.

UK Court of Appeal quashes review decision due to failure to send “minded to” letter

In one recent UK Court of appeal case, (Mohamoud v Birmingham City Council [2014] EWCA Civ 227), a review decision was quashed and referred back for a fresh review due to the reviewing officer’s failure to send a “minded to” letter.

The applicant had rejected an offer of housing from the local authority.  As she was only entitled to one offer, the authority wrote to the applicant explaining that it owed her no further duty.  The applicant requested a review of this decision.  In her review submissions, she explained that she did not understand that she was only entitled to one offer as her grasp of English was poor and acquaintances in similar circumstances had assured her that she would be entitled to three offers of housing.  The applicant stated that she would have accepted the offer of housing made to her, had she understood that it was her final offer.

The court held the applicant had shown that she had rejected the offer under a misapprehension.  As this information was drawn to the attention of the reviewing officer and could have had an impact on the original decision, the reviewing officer should have acknowledged a deficiency in the original decision making process.  The officer should have sent a “minded to” letter advising the applicant of his intention to uphold the decision and allowing her an opportunity to respond.