Joy Adesotu v Lewisham London Borough Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Bean,McCombe LJ,Lewison LJ |
| Judgment Date | 02 August 2019 |
| Neutral Citation | [2019] EWCA Civ 1405 |
| Date | 02 August 2019 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B5/2019/0391 |
[2019] EWCA Civ 1405
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COUNTY COURT AT CENTRAL LONDON
HIS HONOUR JUDGE LUBA QC
E40CL183
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Lewison
Lord Justice McCombe
and
Lord Justice Bean
Case No: B5/2019/0391
Liz Davies and Nick Bano (instructed by Morrison Spowart) for the Appellant
Dean Underwood and Riccardo Calzavara (instructed by Lewisham LBC Legal Services) for the Respondent
Justin Bates (instructed by Francine Morris) for the Equality and Human Rights Commission, intervening by way of written submissions only.
Hearing date: 10 July 2019
Approved Judgment
The issue raised in this case is whether the County Court has jurisdiction to determine allegations of discrimination in a statutory appeal brought under section 204 of the Housing Act 1996. The challenge is to a decision of His Honour Judge Luba QC (in a reserved judgment reported on Bailii at [2019] EW Misc 3 (CC)) striking out certain paragraphs of Ms Adesotu's appeal to the County Court. The judge granted permission to appeal from his decision, directed pursuant to CPR 52.23 that the appeal against his order be transferred to this court; and stayed the hearing of those parts of the appeal to the County Court which he had not struck out, pending determination of the appeal to this court.
The facts
I adopt with gratitude the judge's narrative of the facts:-
“9. The Appellant, Ms Adesotu, is a single parent of three young children. In 2017, she applied to the Respondent, Lewisham Council (‘the council’) for homelessness assistance. The council provided her with interim accommodation pending the outcome of her application.
10. On 11 May 2018, the council notified her of a decision that she was owed the main housing duty under the Housing Act 1996 Part 7 ( Homelessness) albeit that it was inaccurately referred to by the council as the ‘full’ housing duty. The duty required the council to secure suitable accommodation for her occupation. The notification informed her that the interim accommodation that she had been occupying was now being provided in performance of the main housing duty.
11. On 22 May 2018, the council wrote her a letter headed “OFFER OF TEMPORARY ACCOMMODATION”. It stated that it was “pleased to be able to provide you [with] temporary accommodation”. The letter described the size and rent of the offered accommodation and stated that its provision was made in performance of the main housing duty.
12. The body of the letter did not indicate the address of the offered accommodation but the letter was addressed to Ms Adesotu at the address of “220 Algernon Road” where she was not living. The letter was delivered to her by hand, at what had been her interim accommodation, on Friday 25 May 2018.
13. It was later to transpire that the council was offering accommodation at 220 Algernon Road that it had itself leased from a private owner specifically for provision to homeless households as part of a Private Sector Leasing (PSL) arrangement.
14. The text of the letter set out that the council considered the offered accommodation suitable for the household and that its decision as to suitability might be subject to review by Ms Adesotu whether she accepted or refused the offer. It cautioned as to the consequences of a refusal of the offer and a subsequent unsuccessful review.
15. Nothing in the letter indicated how, or by when, the offer was to be accepted or refused.
16. Later in the day on 25 May 2018, an Email containing the following text passed between council officers:
“Above client was offered PSL today, she has been given a copy of the offer letter but she has not signed. She is saying she needs more time, she tried to kill herself last year etc etc. Please can you have a word?”
17. Prompted by his receipt of that Email, Mr Brian Frederick of the council spoke to Ms Adesotu by telephone later in the afternoon of 25 May 2018. She told him that she had refused the offer of Algernon Road because it was too far from her children's school and she was too depressed to move. Mr Frederick recorded that he:
“advised her that the council does not like moving people from place to place but it does sometimes become necessary as it has in her case so she needs to accept the property offered or I would have to close her case”.
18. That evening, Mr Frederick sent an email to Ms Adesotu which stated that:
“You have been offered accommodation which you have confirmed that you do not wish to accept. You provided your reasons for refusal and confirmed receipt of the offer letter. Unfortunately, I do not agree that the reasons you gave for refusal justify withdrawing the property. As a result, if you do not confirm by midday of Tuesday next week, after the bank holiday, that you are going to accept the property, I will discharge the duty owed to you and cancel your homeless application”.
19. That Email was sent at 18.45 on Friday 25 May 2018. May 26–27 was a weekend. May 28 was Bank Holiday Monday.
20. Ms Adesotu replied to Mr Frederick in a rather confusing Email, sent by her on the Saturday evening. By then, she had been to see 220 Algernon Road. In her Email she not only “accepted the offer of the property” but set out her detailed concerns about it. Her message indicated that she had been to see the property and “from what I saw I cannot move into the property”. She concluded with: “Having outlined my major reasons of refusal, I am requesting a review” and referred to a written request for review that she had sent to the review team.
21. On Tuesday 29 May 2018, Mr Frederick sent a short Email in response which included “OK thank you. I will treat this as a refusal”.
22. On Wednesday 30 May 2018, Mr Frederick telephoned Ms Adesotu to “clarify her position”. He records that in his first call he:
“told her that unless she is going to sign the papers, take the keys and move in then it is a refusal, I require an answer, yes or no because she has had enough time. I told her that if she does not confirm with “yes” to all of that it will be a refusal and the property offered to someone else.”
23. Ms Adesotu indicated that she could not give an immediate answer because she was breastfeeding her youngest child. Mr Frederick told her that he would call back two hours later and that if she did not take the phone call “it will be the end of the chances I have given her to accept”.
24. His note of the second call reads:
“after talking all around this issue for a while I told her that she was either going to move in or not and I require an answer. She said the property is not safe for her children. She refused to confirm that she would move in. I told her that I concluded that her position is that of refusal”.
25. By letter dated the same day (30 May 2018) Mr Frederick notified Ms Adesotu that, because she had refused an offer of suitable accommodation, the council's duty to accommodate her had come to an end. The letter stated:
“You later visited the address and despite being given several opportunities to confirm your acceptance of the property, you had failed to do so, over a week after the date of the offer letter. You were given a final opportunity to accept the property today but you refused to do so. You, today, claimed that the property was unsafe for your children”.
26. In due course, the council received the written request for review that Ms Adesotu had already made by a letter dated 27 May 2018 about the suitability of the accommodation. That referred to: the front door opening onto a main road with no guard or safety measures to protect her children from danger; the distance to their schools; and the facts that she had recently given birth and was a “patient of depression”.
27. The council decided that Ms Adesotu could remain in what had been the interim accommodation until the review concluded.
28. On 6 June 2018, the reviewing officer sent a letter setting out the decision on review that he was ‘minded to’ reach and invited representations. No representations were made.
29. On 25 June 2018, the reviewing officer sent a letter giving a decision on the review, namely that the accommodation had been suitable and that the decision “to discharge duty on your homeless application was the correct one”. The letter set out the conclusions made by the reviewing officer and the reasons for them over 10 pages of typescript.”
The reviewing officer's letter of 25 June 2018 contained the following paragraph under the heading “Equality Act 2010”:-
“For clarification I would like to point out that I have given careful and critical scrutiny on your application, in making this decision, to the Equality Act 2010. … I have considered all the protected characteristics with respect to the said legislation relating to your case. That is, I have considered that you have recently given birth and have a history of mental health issues (including PTSD), and are currently under the treatment of the Perinatal Mental Health Team at University Lewisham Hospital, however I am currently minded that you do not meet the definition of disability under that Act, but you are a 36 year old woman with four year old and ten month old sons and an eight month old daughter.”
The appeal to the County Court
Section 193 of the Housing Act 1996 imposes a duty on a local housing authority to an applicant who they are satisfied is homeless, eligible for assistance and with a priority need, and where they are not satisfied that she became homeless intentionally, to secure that accommodation is available for her occupation. Section 193(5) states that the authority shall cease to be subject to the duty in certain circumstances where the applicant refuses an offer of accommodation which the authority are satisfied is suitable. Section...
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