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Wales: challenging LA decisions

This content applies to Wales

There are three main ways in which applicants dissatisfied with a local authority’s decisions on their homelessness applications can challenge it.

In addition, the Public Services Ombudsman for Wales can investigate complaints, and there are alternatives to legal proceedings.

Right to internal review

An applicant can request a statutory review of:[1]

Internal review procedure

The request for review must be made to the authority which made the decision.

An applicant can request a review, personally or through someone acting on her/his behalf, in writing or orally (or both).[2] Although there is no requirement that a review request be in writing, it is sensible to put the request in writing so that there is a clear record of it.

Time limits

An applicant must request a review before the end of the period of 21 days beginning with the day on which the applicant is notified of the authority's decision and her/his rights to request a review, unless the authority agrees to a longer period in writing.[3]

The authority has eight weeks from the date of the request for the review to notify the applicant of its decision, unless the applicant and the authority agree a longer period in writing.

Where there is a local connection issue, the authority has ten weeks from the date of the request for the review to notify the applicant of the decision, or twelve weeks where an arbitrator on local connection has been appointed.[4]

Acknowledgment notification

Within five working days of receiving the review request, the authority (or authorities, if there is a local connection issue) must:[5]

  • acknowledge receipt and invite the applicant and her/his representatives to make representations orally or in writing (or both), and
  • notify the applicant, if it has not already done so, of the procedure to be followed in connection with the review.

Who can conduct the review?

The review may be carried out by the authority itself or by someone acting on its behalf. If the review is carried out by the authority itself, the review officer must not have been involved in the original decision.[6]

If the decision under review was made jointly by two authorities, such as in the case of local connection referrals, then the review should be carried out jointly by both authorities.[7]

Representations, delays and extensions

In reviewing a decision, authorities must have regard to any information relevant to the period before the original decision (even if obtained afterwards) and any relevant information obtained since the decision.[8]

In some cases, it may be necessary for the authority to make further enquiries with the applicant about the information s/he has provided or invite her/him to an oral hearing. In such cases, authorities should be flexible about allowing further exchanges of information, having regard to the time limits for reviews prescribed in the regulations, and may agree with the applicant an extension of the time limits.[9]

See under ‘the scope of the review decision’ heading, on Internal review procedure, for case law developed under the Housing Act 1996 which should remain binding in analogous decisions under the Housing (Wales) Act 2014.

Deficient or irregular decisions and ‘minded to’ letters

If, on reviewing the authority’s decision, the review officer considers that there is a deficiency or irregularity in the original decision or in the way in which it was made, but still wishes to make an adverse finding, s/he must notify the applicant that:[10]

  • the authority is minded to make an adverse decision and state the reasons why, and
  • the applicant or her/his representatives may make further representations orally or in writing (or both).

The Code of Guidance for Local Authorities in Wales gives some examples of deficiencies or irregularities:

  • failure to take into account relevant considerations, and considering irrelevant ones
  • failure to base the decision on the facts
  • bad faith or dishonesty
  • mistake of law
  • decisions that run contrary to the policy of the Housing (Wales) Act 2014
  • irrationality or unreasonableness
  • procedural unfairness, for example where the applicant has not been given a chance to comment on matters relevant to a decision.

Review of decision that reasonable steps were taken

An applicant can request a review of an authority’s decision that reasonable steps to help her/him to secure accommodation were duly taken before ending the help to secure duty.[11]

The Code of Guidance for Local Authorities in Wales advises that, when considering the appropriateness of the reasonable steps taken, the review officer should consider:

  • whether the steps were focused on the applicant’s needs
  • the authority’s local context and resources
  • the timeliness of actions taken and the proactivity of the authority
  • the likely success of the agreed reasonable steps
  • the reasonableness of the demands and expectations of the applicant
  • the applicant’s cooperation and her/his capacity to undertake the reasonable steps.

If the review officer concludes that reasonable steps were not taken, the ‘help to secure’ duty to the applicant will revive and a new 56-day period will run from the date that the review decision is notified to the applicant.[12]

Notification of review decision

Following the completion of the review process, the authority must notify the applicant in writing of its decision and of her/his right to appeal to the county court on a point of law within 21 days.

The review decision must provide reasons if it is unfavourable to the applicant, and must confirm:[13]

  • whether o not a duty is owed to the applicant
  • the original decision on any issue against the interests of the applicant
  • a previous decision to refer the applicant to another authority under the local connection provisions
  • a previous decision that the conditions for a local connection referral are met
  • reasonable steps have been taken.

If the review is carried out jointly by two authorities, or by an independent arbitrator appointed to carry out review on behalf of the authority, the notification may be made by either of the two authorities involved.

Power to accommodate pending review

The authority has a discretion, but not a duty, to provide accommodation for the applicant during the review process.[14]

In considering whether to exercise this discretion, authorities will need to balance fairness to homeless persons in circumstances where the authority has decided that no duty is owed to them, and proper consideration of the possibility that the decision might be wrong. The authority will need to consider several factors, including:[15]

  • the applicant’s prospects of success on appeal
  • any new material, information or argument advanced by the applicant
  • the applicant’s personal circumstances and the consequences of a decision not to exercise the discretion to accommodate.

Applicants dissatisfied with an authority's decision as to whether exercise its discretion to provide accommodation pending the review process can only challenge it by way of judicial review.

Appeal to the county court on a point of law

An applicant has a right to appeal to the county court on a point of law within 21 days of being notified of a review decision (or within 21 days of the date by which s/he should have been notified) if:[16]

  • s/he is dissatisfied with the review decision, or
  • s/he has not been notified of the review decision within eight weeks.

Power to accommodate pending appeal

Applicants who were previously owed an interim accommodation duty, or final duty, or duty to secure that suitable accommodation is available pending a local connection referral have a right to appeal that decision if the authority has decided:[17]

  • not to exercise its discretion to provide accommodation pending the appeal
  • to provide such accommodation but only for a limited period, or
  • to cease providing it before the final determination of the appeal.

The county court may give permission for an appeal after 21 days but only if satisfied that there is a good reason for the failure to bring the appeal in time. The court may confirm, quash or vary the decision as it thinks fit, and may order the authority to provide accommodation pending final determination of the appeal.[18]

The county court's primary role is to ensure that the local authority has correctly understood and applied the law, and has followed a fair decision-making process. An appeal to the county court does not enable the court to consider the facts (save in very rare circumstances). The normal result of a successful county court appeal is that the local authority's decision is quashed and remitted to the authority for a new decision.

For more information about when an appeal to the county court can be made, preparing for an appeal, the procedure followed by the court, and the limited circumstances in which a second appeal to the Court of Appeal can be made, see County court appeals.

Judicial review

Although most disputes are resolved through the internal review procedure or in the county court, there are certain homelessness decisions that are not subject to either remedy, such as the refusal to carry out a homelessness assessment or to provide accommodation pending review (see above) or decisions about protection of property.

If an applicant is dissatisfied with a local authority’s decision which does not fall within the categories of decisions for which internal review is available (see above), s/he will need to challenge it by way of judicial review.

Public Services Ombudsman for Wales

The Public Services Ombudsman for Wales can investigate complaints about the way in which a decision has been made.[19]

Alternatives to legal proceedings

Some alternatives to using the statutory review mechanism or court proceedings are considered in Alternatives to legal proceedings.

Applications made before 27 April 2015

The provisions in Part 2 of the Housing (Wales) Act 2014 apply to homelessness applications made to local authorities in Wales on or after 27 April 2015.

For the law applicable to applications made in Wales before that date, contact Shelter Cymru.

[1] s.85 Housing (Wales) Act 2014; para 20.3 Code of Guidance for Local Authorities on the Allocation of Accommodation and Homelessness, Welsh Government, March 2016.

[2] para 20.4 Code of Guidance for Local Authorities on the Allocation of Accommodation and Homelessness, Welsh Government, March 2016.

[3] s.85(5) Housing (Wales) Act 2014.

[4] reg 6 Homelessness (Review Procedure) (Wales) Regulations 2015 SI 2015/1266; para 20.14 Code of Guidance for Local Authorities on the Allocation of Accommodation and Homelessness, Welsh Government, March 2016.

[5] reg 2 Homelessness (Review Procedure) (Wales) Regulations 2015 SI 2015/1266.

[6] para 20.9 Code of Guidance for Local Authorities on the Allocation of Accommodation and Homelessness, Welsh Government, March 2016.

[7] reg 4 Homelessness (Review Procedure) (Wales) Regulations 2015 SI 2015/1266; para 20.10 Code of Guidance for Local Authorities on the Allocation of Accommodation and Homelessness, Welsh Government, March 2016.

[8] para 20.6 Code of Guidance for Local Authorities on the Allocation of Accommodation and Homelessness, Welsh Government, March 2016.

[9] para 20.16 Code of Guidance for Local Authorities on the Allocation of Accommodation and Homelessness, Welsh Government, March 2016.

[10] reg 5 Homelessness (Review Procedure) (Wales) Regulations 2015 SI 2015/1266; para 20.13 Code of Guidance for Local Authorities on the Allocation of Accommodation and Homelessness, Welsh Government, March 2016.

[11] s.85(2) Housing (Wales) Act 2014; paras 20.17-20.22 Code of Guidance for Local Authorities on the Allocation of Accommodation and Homelessness, Welsh Government, March 2016.

[12] s.87 Housing (Wales) Act 2014; para 20.33 Code of Guidance for Local Authorities on the Allocation of Accommodation and Homelessness, Welsh Government, March 2016.

[13] s.86(3)-(5) Housing (Wales) Act 2014; paras 20.25-20.28 Code of Guidance for Local Authorities on the Allocation of Accommodation and Homelessness, Welsh Government, March 2016.

[14] s.69(11) and s.88(5) Hosing (Wales) Act 2014; paras 20.29-20.32 Code of Guidance for Local Authorities on the Allocation of Accommodation and Homelessness, Welsh Government, March 2016.

[15] R (on the application of Mohammed) v Camden LBC [1997] 30 HLR 315; para 20.30 Code of Guidance for Local Authorities on the Allocation of Accommodation and Homelessness, Welsh Government, March 2016.

[16] s.88(1)-(2) Housing (Wales) Act 2014.

[17] s.89 Housing (Wales) Act 2014; paras 20.40-20.45 Code of Guidance for Local Authorities on the Allocation of Accommodation and Homelessness, Welsh Government, March 2016.

[18] s.88(3)-(4) Housing (Wales) Act 2014.

[19] paras 20.46-20.48 Code of Guidance for Local Authorities on the Allocation of Accommodation and Homelessness, Welsh Government, March 2016.

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