The burning question

The idea that every applicant for homelessness assistance would have the right to a review of the decision about what range of services, if any, they were entitled to was a bold step. Before then, it was remembered, homelessness decisions could only be questioned and challenged in one way and in one place – by judicial review in the High Court in London. In the brave new post-Housing Act 1996 world, challenges could be pursued as of right.

Some thought this right of review was a reflection on the council’s ability (or lack of it) to make correct homelessness decisions. They were, of course, mistaken. As the new review officers would tell them, this right reflected not a lack of confidence in officers’ abilities but the fact that their decisions were of such immense importance. Others recalled the concern of the judges, who, despite the limited route of challenge, were seeing their courts filled with homelessness challenges.

And so the internal review was born. And with it the post of review officer, the remit of whose role changed over the years. There were undoubted successes with the new procedure. For the applicant, this most important of decisions could now be questioned and revisited without the expense, inconvenience and anxiety of having to apply to court.

‘The problem has always been impartiality. How can a council employee fairly review a decision by another council employee, on behalf of their council employer?’

The forum for challenge was now in every council office, rather than limited to a, for most, remote court in London. And the relative ease of questioning an adverse decision meant for many that while they may not have agreed with the council’s conclusions, they at least left the process feeling they had taken part.

This, too, developed into a great benefit for the council themselves. Better to review their decisions internally, at least initially, than to immediately be faced with a court challenge. It made greater procedural and financial sense to identify and correct the erroneous decisions within the confines of the council office than be directed to do so in the courtrooms of the High Court.

At the heart of the new process was one person – the review officer. The council and applicant also benefited from the impact this internal process had on the review officer. Now, for the first time, there was a colleague and decision-maker whose expertise in lawful decision-making increased with each challenge. For colleagues, especially, the review officer was the senior partner, the one you went to for guidance and assistance. It was also a post to aspire to for the new officer, once they put in their tours of duty on the frontline.

But, said the well-wishers, it hasn’t been plain sailing. Every silver lining has a black cloud. And the blackest for the review process has always been impartiality. Despite all the best intentions, how can a council employee review a decision by another council employee, on behalf of their council employer, either fairly or impartially?

The answer, in law, was that they can’t. A number of safeguards were introduced to minimise the risks without ever eradicating them. For example, the review officer was forbidden from reviewing any decision he or she had been previously involved in. But this in itself raised another conundrum. How does the initial decision-maker seek the advice of their experienced, knowledgeable review officer without rendering the review officer part of the decision-making process and barring them from undertaking any subsequent review? Not too difficult a problem to negotiate if you have more than one review officer. A headache if you don’t.

And so, back to the patient. How, asked one junior colleague, had it come to this, with the future of this lynchpin of the homelessness operation so undecided? The crowd agreed on two critical developments. First, the financial climate that the council found itself in, being told to find ‘savings’ without actually ‘cutting’ anything. Do the same for less money.

Into this controversy entered the second, courtesy of the Court of Appeal’s decision in Heald v Brent LBC [2009] EWCA Civ 930. It is, the court concluded, quite lawful for a council to contract out its entire review process to anyone it likes. That could be another council. It could also be a private company. It would rob the council of its internal source of knowledge and wisdom, but if the private option were pursued, it would also rob the council of having to pay a salary, with further on-costs like sick pay, annual leave and pension contributions. Do the same for less.

And so the vigil continued, with supporters not being immune to the irony of their patient’s best chance of recovery – a possible reconsideration of the Court of Appeal’s decision by the latest review body to come into existence, the Supreme Court.

Steve Povey is a solicitor at Shelter Cymru.