Internal review process

A homeless applicant has the right to request an internal review of certain decisions by a local authority on their homelessness application. An internal review is also sometimes known as a section 202 review.

A local authority only has to carry out an internal review if the applicant requests one.

Find out more about requests for an internal review on Shelter Legal.

How an applicant makes an internal review request

There are no formal requirements about how a request should be made. An applicant can ensure there is a clear record by putting their review request in writing.

The courts have held that a homeless applicant should be specific when drafting a review request. An email giving reasons for refusal of an offer of accommodation was held not to be a review request, even though it had been sent to a dedicated email address.[1]

A homeless applicant does not need to provide their full reasoning for requesting a review when they submit the request.

When the authority receives a review request, it must notify the applicant or their solicitors of:[2]

• their right to submit written representations to the authority

• any time limits that might apply 

• the review procedure, if it has not already done so

The Homelessness Code of Guidance states authorities should invite the applicant to state their reasons for requesting a review.[3]The applicant does not have to provide legal grounds for challenging the authority's decision.

Deadlines for written representations

A local authority might give a homeless applicant a deadline for submitting written representations in connection with the review. An applicant might need to request an extension to this if they need time to obtain information, such as their medical records.

For certain decisions, the authority must notify the applicant that any written representations must be submitted within two weeks of the review request. This includes when the review concerns:[4]

• the reasonable steps in the personalised housing plan during the prevention or relief duty

• a notice bringing the prevention duty to an end

The review can be carried out by the authority itself, or the authority might contract out its review function to someone acting as an agent on its behalf.[5]

Where the review is to be carried out by an officer of the authority, it must be conducted by someone who was not involved in the original decision and is senior to the officer who made the original decision.[6] Most authorities have a dedicated review officer.

The original decision maker can decide whether to provide interim accommodation pending review.[7] They can also assist the reviewer with routine matters in the conduct of the review.[8]

Subsequent reviews

A homeless application might result in two or more reviews. A subsequent review could be carried out by the same officer who carried out the first review.

The courts have held that the circumstances at the second review could not have been the same as for the original review. The officer was not reviewing their own earlier decision but was starting afresh as something had triggered the need for a second review.[9]

A reviewing officer might find a deficiency or irregularity in the original decision or the way in which it was made, but still wish to make a negative decision.

The reviewing officer must notify the applicant that:[10]

• they are minded to make an adverse decision

• the reasons for their decision

• the applicant, or someone acting for them, is entitled to an oral hearing, or to present their case in writing, or both

This is known as a 'minded to' notification.

The reviewing officer does not have the discretion to decide whether or not a minded to letter is necessary or would be of material benefit to the applicant.[11]

During the review, information may come to light that is unfavourable to the applicant. The new information should normally be put to the applicant so that they can comment on it.[12]

Where a matter has already been put to an applicant and they have not sought to challenge it, there is no need for a minded to letter and an oral hearing.[13]

Where an applicant requests an oral hearing, they are entitled to have it held in person rather than online or over the phone.[14] As long as the minded to notification refers to the right to make oral representations, it does not need to offer an in person meeting specifically.[15]

What might constitute a deficiency

The Homelessness Code of Guidance states that a deficiency or irregularity requiring a minded to notification could include:[16]

• taking into account irrelevant considerations and ignoring irrelevant ones

• not basing the decision on the facts

• bad faith or dishonesty

• mistakes in law

• decisions that run contrary to the policy of the legislation

• irrationality or unreasonableness

• procedural unfairness

Procedural unfairness can include where the applicant has not been given the opportunity to comment on matters relevant to the decision.

A deficiency or irregularity might arise when the reviewing officer has found a significant legal or procedural error in the decision or whenever they consider that an important aspect of the case was either not addressed or not adequately addressed.[17]

Where a local authority was unaware of a relevant Cafcass report that existed at the time of the original decision, this alone did not constitute a deficiency.[18]

When the 'minded to' process is triggered

The 'minded to' process is triggered when the reason for finding that the authority did not owe the applicant a duty differs from the original decision.

For example, the authority might have issued a decision that the applicant was not homeless, and the reviewing officer might consider that the applicant is homeless, but does not have a priority need.[19]

The process could also be triggered where events that only occurred after the original decision, such as domestic violence in the area where the applicant would otherwise have a local connection, would have affected that decision.[20]

A homeless applicant was entitled to the benefit of the 'minded to' process where she may have misunderstood that refusing an offer of permanent accommodation under the council's one-offer policy meant that the authority would discharge its duty to her.[21]

Where the 'minded to' process is not triggered

Not all differences between the original and review decisions mean there is an irregularity or deficiency in the original decision.

Where a deficiency does not negatively affect the applicant, the local authority is not obliged to send a minded to letter.[22]

Where an original decision referred to an applicant being an unlawful sub-tenant and the review decision referred to her being a bare licensee, this did not constitute an irregularity or deficiency.[23]

The authority must notify the applicant of their review decision within a set period unless a longer time limit has been agreed with the applicant.

The time period depends on the decision under review.[24]

Three weeks

The authority has three weeks from the review request, or from the day the applicant's representations in response to a 'minded to' letter are received, if the original decision concerned:

• reasonable steps to relieve homelessness

• reasonable steps to prevent homelessness

• notice to bring the prevention duty to an end

• notice to bring the prevention duty to an end due to deliberate and unreasonable refusal to co-operate

Eight weeks

The authority has eight weeks from the review request if the original decision concerned:

• eligibility for assistance

• notice as to what duty is owed to the applicant, including whether they meet the homelessness tests

• notice to bring the relief duty to an end

• referral to another authority where the main housing duty is owed

• whether the conditions for a local connection referral are met

• which authority holds the case where a local connection referral has been made

• suitability of accommodation offers, including PRS offers

• notice to bring the relief duty to an end due to deliberate and unreasonable refusal to co-operate

Ten weeks

The authority has ten weeks from the review request if the original decision concerned whether the conditions for a local connection referral are met and was made jointly by the concerned authorities.

Twelve weeks

The authority has twelve weeks from the review request if the original decision was made by an appointed arbitrator and concerned a local connection referral.

The authority might need to make further inquiries with the applicant about the information they have provided.

The Homelessness Code of Guidance states authorities should be flexible about allowing further exchanges of information, having regard to the prescribed time limit.[25]

A local authority can agree an extension of time with the applicant. An extension might also be necessary if there is an oral hearing.

If the decision is not issued in time

If there is no notification of a decision within the relevant deadline, the applicant can either:

• agree in writing an extension of time with the authority

• appeal to the County Court on a point of law[26]

• apply for judicial review

An applicant who is accommodated pending review could agree an extension to the time limit. If an applicant is not accommodated, they might consider an appeal or judicial review claim.

Judicial review might be an option if the authority's original decision was correct on the facts known to it at the time, but fresh material has been put to the authority and has not been considered because the authority has failed to complete the review.

Find out more about accommodation pending review, County Court appeals and judicial review on Shelter Legal.

The reviewer must consider any representations made in connection with the review request. The authority can consider matters that were not part of the original decision.[27]

The review can either confirm the original decision or make a different decision. The review can make an adverse decision on different grounds to the original decision.

The review decision can be less favourable to the applicant than the original decision.[28]

Facts arising after the original decision

Sometimes circumstances might change between the original decision and when the review decision is made.

Whether the facts to be taken into account are those at the time of the original decision or at the time of the review depends on the decision being reviewed and the requirements of fairness.[29]

Reviews of local connection decisions should consider the facts of the case as they stand at the date of the review. Time spent in temporary accommodation, including any period of residence after the original decision, should be taken into account when considering local connection.[30]

The Court of Appeal held that where the applicant's child turned five three days after the original decision, the facts at the time of the review were to be taken into account in determining the suitability of accommodation.[31]

Where the applicant's premature baby was receiving care at a local hospital at the time of the original decision, the review of the suitability of accommodation outside of the area should have considered this.[32]

Income and expenditure recalculations

A local authority might need to consider a homeless applicant's income and expenditure as part of its decision making process. For example, to determine whether the applicant could afford their accommodation, and whether that accommodation was reasonable to continue to occupy.

The local authority can carry out recalculations of income and expenditure as part of a review. For example, if the amounts claimed are unrealistic or inconsistent with documentation provided. Recalculations must be evidence based and take account of explanations raised by the applicant.

Providing the review officer has due regard to the guidance and based their conclusion on the information available, there are no grounds for the County Court to interfere with the decision on appeal.[33]

Public sector equality duty

The public sector equality duty (PSED) applies to the homelessness review process.

The duty requires local authorities to have regard to the person’s protected characteristics, including a disability. The PSED applies to the way in which public authorities exercise their functions, including making enquiries into vulnerability under the homelessness legislation.[34]

The Court of Appeal held that where a person's disability could be relevant to their homelessness application, a local authority carrying out a review must have 'due regard' to the need to take steps to consider the applicant's disabilities.[35]

Where the reviewing officer had assessed the applicant’s health issues in a way that showed compliance with the PSED, there was no requirement to make separate findings about disability to comply with the PSED specifically.[36]

The notification requirements of a review decision depend on whether the decision was in the applicant's favour or not.

Where a review has been carried out jointly by two authorities following a local connection referral, either authority may notify the applicant of the decision.[37]

Negative decision

If the review decision is a negative one, the authority must inform the applicant in writing of:[38]

• its reasons for the decision

• their right to appeal to the County Court on a point of law

• the time limits for making an appeal

If the decision does not meet these requirements, the proper notification following the review is deemed not to have been given. The time limit for an appeal does not start until proper notification has been given.[39]

There may be some cases where reasons are given but they seem inadequate. In one case, where a reviewing officer upheld a decision that the applicant was intentionally homeless but failed to explain why they agreed with the original decision or why the applicant's justification for her behaviour was rejected. The Court of Appeal quashed the decision.[40]

If the review decision letter is so deficient that the appeal process could not be conducted fairly, a request should be made for further or better reasons. If a satisfactory response is not given then judicial review may be appropriate.[41]

An applicant seeking a judicial review should obtain legal advice. Find out more about legal aid for housing problems on Shelter Legal.

Positive decision

If the applicant's review is successful, the applicant must be notified but the authority does not have to give reasons for its decision.[42]

An applicant might still want to ask the authority for its reasons. For example, where they requested a review of the suitability of a property on more than one ground, it may help them to know the reasons why the review succeeded, especially if they are considering requesting a review of a subsequent offer.

An applicant can appeal to the County Court if they disagree with a review decision or do not receive a review decision within the time limit.

An appeal can only be made on a point of law. For example, if the local authority did not carry out the review correctly or ignored relevant facts.

The person must appeal within 21 days of being notified of the review decision. They should get legal advice from a solicitor.

Find out more about County Court appeals.

The current Homelessness Code of Guidance was introduced on 3 April 2018 and the references on this page are to this Code. For applications made before this date, the recommendations of the 2006 Code of Guidance should apply.