Nikolaeva v London Borough of Redbridge
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lewis,Lord Justice Bean,Lady Justice Asplin |
| Judgment Date | 27 November 2020 |
| Neutral Citation | [2020] EWCA Civ 1586 |
| Date | 27 November 2020 |
| Docket Number | Case No: B5/2019/3159 |
| Court | Court of Appeal (Civil Division) |
[2020] EWCA Civ 1586
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON COUNTY COURT
His Honour Judge Luba QC
E40CL323
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Bean
Lady Justice Asplin
and
Lord Justice Lewis
Case No: B5/2019/3159
Mr Ben Chataway (instructed by Edwards Duthie Shamash Solicitors) for the Appellant
Mr Michael Mullin and Miss Elizabeth England (instructed by The London Borough of Redbridge) for the Respondent
Hearing date: 11 th November 2020
Approved Judgment
This is an appeal from the order of HHJ Luba QC dated 9 December 2019, dismissing the Appellant's appeal against the Respondent's decision that its main housing duty owed to the Appellant, Mrs Nikolaeva, under Part VII of the Housing Act 1996 had ceased under section 193(7).
The appeal raises the important issues of the nature of the “final offer of accommodation”, the refusal of which triggers a cessation of the “main housing duty” placed upon a local housing authority by the Housing Act 1996, and when that offer is made.
Background
In the light of the nature of the challenges to the judge's order and the decision of the reviewing officer, it is necessary to set out the background in this matter in some detail.
It is not in dispute that on 2 June 2004, the Respondent, the London Borough of Redbridge (“Redbridge”) accepted that it owed Mrs Nikolaeva the main housing duty under section 193(2) Housing Act 1996 (the “1996 Act”) on the basis that she was vulnerable (due in particular to her mental illness). She was placed in temporary accommodation on 27 September 2004 and has lived at the same address ever since.
By a letter dated 1 July 2013 Redbridge nominated Mrs Nikolaeva to East Homes Housing Association in respect of a ground floor studio flat. In the letter Redbridge made clear that if Mrs Nikolaeva's circumstances had not changed and she rejected the offer of accommodation, Redbridge's duty to her under section 193 of the 1996 Act would cease. Mrs Nikolaeva did not accept the offer. Nevertheless, having received information about her mental health, Redbridge accepted that it continued to owe her the “main housing duty” despite the fact that she had refused the offer.
Thereafter, by a letter dated 19 May 2017, Redbridge informed Mrs Nikolaeva that she had been nominated to Sanctuary Housing Association (“Sanctuary”) which had asked for a nomination for a one bedroom, ground floor flat at Flat 10A Redbridge Lane West, London (the “Property”) and that she would be invited to view the Property. The letter went on (where relevant) as follows:
“… This nomination to an Assured Tenancy is made under Part VI, Housing Act 1996. If the nomination is successful and you are offered 10A Redbridge Lane west, London E11 2JU, this offer will constitute a final offer of accommodation for the purpose of Section 193 of the Housing Act 1996, Part VII. Having taken account of your individual circumstances, the council is satisfied that the accommodation to which you have been nominated, is suitable for you and your household to occupy. It is the correct size and type of accommodation for your assessed needs and is in one of your areas of choice.
…
Should your circumstances have changed and you feel that this property is not now suitable for your needs, please contact me immediately.
However, if your circumstances have not changed and you refuse the offer, the Council's duty to ensure that you have accommodation to occupy under Section 193 of the Housing Act 1996 Part VII will cease. If you are occupying temporary accommodation provided by the Council, including leased accommodation, your occupation will be terminated… .”
Mrs Nikolaeva viewed the Property on 8 June 2017, accompanied by a Sanctuary housing officer. It was alleged that the Property was dirty and in poor condition and Mrs Nikolaeva was told that it would be cleaned and repaired.
On 29 June 2017, Mrs Nikolaeva attended a meeting with a Sanctuary housing officer, during which she was presented with a letter from Sanctuary's letting officer, Ms Narouie, offering her an “Assured Shorthold (“Starter”) (Six Year Fixed Term)” tenancy of the Property to commence that day. The offer was made subject to her accepting and signing Sanctuary's “Tenancy Agreement” and it was stated in the letter that she “should consider this matter very carefully before making a decision to accept the tenancy”. She was, nevertheless, asked to sign the tenancy agreement during the meeting on 29 June.
In an email from Ms Narouei to Redbridge sent the following day, 30 June 2017, Ms Narouei reported that the “tenancy sign up” did not go ahead. She set out the explanation from the housing officer who had been present and asked Redbridge to “… advise another nomination for this property”. The explanation was that Mrs Nikolaeva had:
“… refused to complete the sign up…on the grounds that she cannot keep or store 20 pots of plants from her previous accommodation on rear ground floor communal pathway of a semi detached house converted into 4 flats… .
She did also request to plant the plants in the communal garden which I also refused on the grounds that maintenance of her plants will be subjected to be maintained by estate service which will then not be fair to charge other residents in maintaining her plants.
Nom was previously advised 2 weeks ago during viewing with myself that this request will not be allowed as this will be a health and safety risk and a trip hazard to other residents.
She became agitated and advised that she will still put the plants out on communal grounds whether I like it or not. At this point I reiterated the term of the Assured Shorthold Starter/fixed 6 years tenancy to her as per the tenancy agreement; 3.1D(vi) …
She did not accept this and has advised to return to the Redbridge council to discuss further.”
On 3 July 2017, Mrs Nikolaeva wrote to the Operational Director of Housing at Redbridge raising concerns about the terms on which the Property had been offered to her. In particular, she complained about Sanctuary's failure to provide information about utility meters; rules restricting alterations to the Property, planting in the garden and pet ownership; Sanctuary's request for bank details and proposed direct debit arrangements; the lack of security of tenure, given the Property had been offered as an assured shorthold tenancy; and the prospect of being evicted after 12 months for violation of the rules. Nonetheless, amongst other things, she stated:
“…
I'm not talking about the state of housing or about REFUSAL I'm talking about the rules that will worsen my living conditions and the mental state will be at risk.
…
When discussing the rules, our conversation turned into a dispute about rules that I did not understand, which led to a nervous breakdown.
…
I do not refuse the property provided but after explaining some points in the rules I understand that I can not agree with them.
…
This offer is provided to me subject to the acceptance and signing of the lease agreement.
And that I should consider this matter carefully before making a decision to accept the tenancy. And I decided that I can not agree and sign though I do not refuse the apartment.”
On receipt of the letter, on the same day, 3 July 2017, Redbridge's housing allocation officer made a file note which reads: “Letter received from applicant about refusing to sign tenancy agreement because she does not agree with it. Rang applicant to let her know that we are not accepting her reason but got no reply.” In her handwritten note she goes on to refer to a conversation with a Ms Narouie at Sanctuary and states that Ms Narouie “said they [Sanctuary] need a nomination by tomorrow or they will be taking back property due to them losing rent on the flat”. The note goes on to record a further unsuccessful attempt to speak to Mrs Nikolaeva by telephone later that afternoon.
On 4 July 2017, the housing allocation officer spoke to Mrs Nikolaeva on the telephone. A short handwritten note of that conversation reads: “Spoke to app regarding her letter and refusal to sign the tenancy agreement. App seeing YS [Mr Sharma] on Friday 7/7/17 @ 9.00am in HAC”.
On 7 July 2017, Mrs Nikolaeva met with Mr Sharma, an allocation manager from the Redbridge housing team. A handwritten note of the conversation on that occasion records, amongst other things, that Mrs Nikolaeva's concerns were “not about [the] [P]roperty” but “about rules” and that she had been “told if she does not comply with rules she may not have her tenancy extended”. It also records that Mr Sharma had “concerns about Ms Nikolaeva and her mental health state and she will need to be referred to mental health”. Mr Sharma further notes:
“I advised Ms Nikolaeva that having listened to her reasons for not accepting the property I am satisfied that the property was suitable and that not being happy with the rules does not make the property unsuitable.
The property has now been offered to another applicant. I will make my decision and she can request a review of the decision within 21 days.”
Redbridge then wrote formally to Mrs Nikolaeva on the same date, stating that as she had refused a final offer of accommodation that was suitable and reasonable for her to occupy, it considered that its duty under section 193 of the 1996 Act had been discharged (the “Decision”).
The Decision includes a short summary in the following terms:
“… On 29 June you viewed...
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...is the refusal, and similarly so upon a post-PRSO acceptance (as in Norton itself). Authorities such as Nikolaeva v Redbridge LBC [2020] EWCA Civ 1586 — in fact cited by the defendant in argument — show that there is often dispute and legal contention about what is a refusal and when that ......