Mohamoud v Birmingham City Council
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Proudman,Lord Justice McFarlane,Lord Justice Moore-Bick |
| Judgment Date | 07 March 2014 |
| Neutral Citation | [2014] EWCA Civ 227 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B5/2013/1163 |
| Date | 07 March 2014 |
[2014] EWCA Civ 227
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
His Honour Judge McKenna
BM 20254A
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Moore-Bick
Lord Justice McFarlane
and
Mrs Justice Proudman
Case No: B5/2013/1163
David Carter (instructed by Shelter West Midlands Advice Service) for the Appellant
Emily Orme (instructed by Legal Services, Birmingham City Council) for the Respondent
Hearing date : 18 February 2014
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This is an appeal from the decision dated 15 April 2013 of His Honour Judge McKenna at Birmingham Civil Justice Centre. Permission to appeal was granted by Underhill LJ on 7 th November 2013. It is a second appeal under s. 204 of the Housing Act 1996 ("the Act") against a review decision made by Birmingham City Council ("the Council"), the local housing authority for the purposes of the Act, on 15 October 2012.
The Council's original decision of 19 July 2012, upheld on review and by HHJ McKenna, was that the Council had discharged its duty under s. 193 of the Act to secure that suitable accommodation was available for the appellant, Ms Mohamoud, and that it had therefore ceased to be subject to that duty under Part VII of the Act. Ms Mohamoud was duly notified of the decision in accordance with s. 193 (5) of the Act.
On 30 April 2013 Mr Carter, Counsel for the appellant, replaced his original grounds of appeal of 6 November 2012 with new grounds. There is one simple issue for this Court, namely whether Ms Carter, the relevant Council officer, was entitled, without serving a "minded to find" notice, to find on the review that there was no deficiency in the original decision. Mr Carter relies on Wednesbury unreasonableness: see Associated Provincial Picture Houses Limited v. Wednesbury Corp [1948] 1 KB 223.
The appeal does not involve a challenge to the decision that the property offered was suitable and reasonable for Ms Mohamoud to accept. The challenge is made on the basis that Ms Mohamoud's confusion led her to refuse the offer of accommodation in circumstances where, if she had understood the true position, she would have accepted it.
The background
Ms Mohamoud (also called in our papers Mahamoud) is separated from her husband. In April 2012 she was staying with a friend but on discovering that she was pregnant the friend asked her to leave. Accordingly Ms Mohamoud approached the Council for accommodation.
On 18 April 2012 a computer-generated Homeless Application Form ("the homeless form") was completed. The Council employee sits at the computer and fills in the form in accordance with the instructions of the applicant given at the time. Of particular note is the question under paragraph 1 " Translator required?" where the box "No" is checked, (we were told that an interpreter is available by telephone at all times) and the " Additional Information provided by Interviewer" under paragraph 26 b. This includes the following;
"The statement has been read back to the applicant and the applicant agrees to the statement provided, the applicant speaks ENGLISH…
The applicant has also been informed that if the council has a duty to provide accommodation, it will make ONE OFFER which would be considered suitable for the needs of the applicant and if it is refused without reasonable grounds, no further offers will be made but the applicant does have a right to review.
The applicant has also been informed that if we give a priority Decision THEY NEED TO BID FOR THEIR ONE OFFER ON THE WEBSITE AND OUR MANAGEMENT TEAM WILL ALSO BE BIDDING FOR THEM AND THIS OFER [sic] COULD BE CITY WIDE FOR ANY TYPE OF PROPERTY INCLUDING HIGH RISE FLATS"
Under Paragraph 27, " Offer of Accommodation", it is again stated,
"Where the City Council has a duty to secure accommodation, it will make one offer of suitable accommodation."
And there is a box with a bold background stating,
" Please advise person: Where Birmingham City Council has a duty to secure accommodation, it will make one offer of suitable accommodation of any type of property."
And the "Yes" box is checked next to the statement,
"I understand that if I refuse an offer of any type in any area of the City, that is suitable to my needs as defined by strict legislation, I will not receive a further offer."
Finally, at paragraph 30, there is a " Declaration: To be read and signed by the person(s)",
" I/we understand the warning notice [a separate document not included in the appeal bundle], and confirm that no relevant details have been withheld.
If the City Council accepts it has a duty to me/us to secure suitable accommodation I/we accept that I/we will be made one suitable offer of accommodation."
Ms Mohamoud signed the declaration.
Part VII of the Act sets out the circumstances in which a local housing authority is required to provide housing assistance to a homeless person who applies to it for accommodation. Where the authority decides that an applicant is homeless, eligible for assistance, in priority need and not intentionally homeless, it must secure that suitable accommodation is made available. That is the duty under s. 193 of the Act: see s. 193(1) and (2) and s. 206 (1).
Once the authority decides that it owes such a duty it must give the applicant written notification of its decision. On 31 May 2012 the Council gave Ms Mohamoud such notification by letter, which stated,
"If you accept or refuse an offer of accommodation from Birmingham City Council (in accordance with Part VI of the Housing Act 1996) Birmingham City Council's housing policy is that all homeless applicants accepted under Part VII of the Housing Act 1996 will receive one offer of suitable accommodation. This will be your one and final offer, as required by Section 193(7) of the Housing Act 1996."
The letter then went on to explain the bidding process for accommodation. Properties would be advertised each week, and,
"You will be able to bid for a maximum of 3 properties in each weekly advertising cycle… At the end of each advertising cycle, eligible bids will be shortlisted according to the priority of applicants under the banding scheme…If when we shortlist a property, you are shortlisted as being the highest placed applicant that is invited to view the property, we will consider this to be your one and final offer. Birmingham City Council will consider its duty to you to be discharged whether you accept or refuse this offer.
At times, Birmingham City Council may decide to place bids on your behalf. This is called Management Bidding… Management Bidding does not prevent you from placing your own bids, however, if you are shortlisted as being the highest place applicant as a result of a management bid, we will still consider this to be your one and final offer and you should consider accepting it. Again, whether you refuse or accept the management bid offer the council will consider that it has discharged its homelessness duty to you….
Should you have any queries regarding this letter, please contact me by telephone on [giving the number]."
As Ms Carter said in her review, being able to bid three times in a cycle is not the same thing as being offered a property three times. Ms Mohamoud signed the homeless form confirming that she was given and understood verbal advice. It is hard to see how the Council could have made it clearer that only one offer would be made. However I can understand how someone, either reading the letter cursorily or not fully understanding it, might find the bidding process confusing.
The duty under s. 193 of the Act ceases if the applicant, having been informed of the possible consequences of refusal and of his right to request a review of suitability refuses a "final offer of accommodation under Part VI", namely an offer made in writing stating that it is a final offer for the purposes of s. 193(7) of the Act.
On 11 July 2012 the Council made Ms Mohamoud a final offer within this definition of a two bedroom flat at Flat 38 Cadbury House Birmingham. Before 9 November 2012 the terms of the Act were such that it was not lawful for an authority to make a final offer unless satisfied both that the accommodation was suitable for Ms Mohamoud and that it was reasonable for her to accept the offer. The offer letter of 11 July 2012 was headed " FINAL OFFER OF ACCOMMODATION" and said, under a section headed " Our duty to you",
"As part of this legal duty, we only have to offer you accommodation once. We are offering you this accommodation as your one and final offer in order to discharge our duty to you in pursuance of Section 193(7) of the Housing Act 1996."
And on the last page of the letter, under the heading " What happens if you turn this offer down?" there was the further statement,
"If you turn this offer down without good reason we will not offer you any more accommodation."
On 19 July 2012 Ms Mohamoud told Ms Jamieson, a Council case management officer, that she was refusing the offer of Flat 38 because it was too small, she was frightened of heights and she did not want to live in a high rise flat. On the same day Ms Jamieson notified Ms Mohamoud that the Council had decided that it considered that the property was suitable and reasonable for her to accept, giving detailed reasons, and that it considered that it had discharged its duty to her under s. 193 of the Act....
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Temur v Hackney London Borough Council
...followed in subsequent decisions of this court: Mitu v Camden LBC; NJ v Wandsworth LBC [2013] EWCA Civ 1373; [2014] HLR 6; Mohamoud v Birmingham City Council [2014] EWCA Civ 227. In addition this court has also held that the reviewing officer has a statutory duty to consider whether the ......