Omar v Westminster City Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Waller,Lord Justice Tuckey,Lord Justice Sedley |
| Judgment Date | 03 March 2008 |
| Neutral Citation | [2008] EWCA Civ 421 |
| Docket Number | Case No: B5/2007/2112 |
| Court | Court of Appeal (Civil Division) |
| Date | 03 March 2008 |
[2008] EWCA Civ 421
Lord Justice Waller
Lord Justice Tuckey and
Lord Justice Sedley
Case No: B5/2007/2112
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
(His Honour Judge Bailey)
Royal Courts of Justice
Strand,
London, WC2A 2LL
Mr M Russell (instructed by Messrs Moss Bleachley Mullem and Coleman) appeared on behalf of the Appellant
Ms N Allsop (instructed by Westminster City Council) appeared on behalf of the Respondent.
(As Approved)
This is an appeal from the decision of HHJ Bailey sitting at the Central London County Court, given on 23 August 2007, which in its turn was an appeal under s.204 of the Housing Act 1996.
Putting it shortly, Westminster Council had accepted that Mr Hassan Omar and his wife and son were homeless and persons to whom they owed an obligation to provide accommodation. They offered accommodation outside the Westminster area which they had decided was suitable. Mr Omar refused that accommodation on the grounds that it was not suitable, having regard to the medical condition of his baby son, who had been born prematurely.
The council treated that refusal as entitling them to say that their obligation to accommodate and to provide housing had been discharged. Mr Omar took both decisions to review and the reviewing officer upheld both decisions —that is to say that the accommodation was suitable and the decision to treat the council's obligation to provide housing as discharged.
The issue on the appeal before the judge and before us related to the material to which the reviewing officer might have regard in making his decisions. Should he be confined to facts as at the date when the original decisions were made or should he be considering the position as at the date of review? If he should have confined himself to facts as at the date of the original decisions, a second question arises as to whether he did so and/or as to whether if he did not do so it is, at the very least, clear that the decision must inevitably be the same.
The judge took the view that in relation to the decision on suitability, the reviewing officer was right to take into account facts as at the date of review, but as to the decision that the council had discharged its obligation to house, he took the view that only facts existing when that decision was taken should be taken into account. He held that the reviewing officer only took into account facts existing at the time of that original decision in upholding that decision. He also held that there was no point, in any event, in sending the matter back for further review because a decision was bound to be the same.
The facts, in a little more detail: Mr Omar and his wife were living in cramped accommodation from which, on the birth of their son, they were ejected. That son was born prematurely on 7 December 2006 in the Chelsea & Westminster Hospital. For some 20 days the son was an inpatient at the Chelsea & Westminster Hospital. He had two days of high dependency care and then 18 days of special care. He was, however, discharged from the hospital on 28 December 200In the meanwhile, on 14 December 2006 Mr and Mrs Omar had made a homelessness application to the City of Westminster. By letter dated 15 January 2007 the council informed Mr Omar of their decision, taken under s.184(3) of the Housing Act, that they accepted that he and his family were homeless; that they were eligible for assistance; had a priority need; and did not become homeless intentionally.
Having reached those decisions, as the letter accepted, there was imposed on the council, under s.193 of the Act, a duty to provide accommodation for occupation of the family. That duty would cease by virtue of ss.193(3) and 193(5):
“if the applicant, having been informed by the authority of the possible consequences of refusal and of his right to request a review of the suitability of the accommodation, refuses an offer of accommodation which the authority are satisfied is suitable for him and the authority notify him that they regard themselves as having discharged their duty under this section.”
The authority supplied, initially, temporary hotel accommodation, but said that they would move the family to a more suitable temporary home within six weeks. On 19 February they offered, as temporary accommodation, a two-bedroom property at 70 Brettenham Road, Walthamstow, E17. They gave notice that by providing “a suitable temporary home” they had discharged their duty, and if the offer was refused the family would have to find their own accommodation unless they successfully challenged the council's decision. They informed Mr Omar that he could ask the council to review their decision.
It is not absolutely clear what information the decision-makers had at this stage, but it seems reasonably likely that the decision-makers, as at this stage, had what is called the “discharge summary” from the hospital. That discharge summary is at p.115. It starts a little earlier, but the relevant passage is at p.115, summarising the position as at 28 December:
“This baby boy was born prematurely at 34+5. He was admitted to the neonatal unit in view of his IUGR, prematurity and low blood sugars. It was difficult to gain control of his sugars and he required 12.5% dextrose to maintain his sugars. He is currently breast feeding and his blood sugars are stable. He will be followed in our neonatal [outpatient department] in six weeks time.”
They also probably had at this stage in their possession a letter, which is at page 112 of the bundle. This is a letter from the hospital dated 19 January. It has written on it in manuscript a date 21 February 2007. It at times refers to the year 2006, but it is clearly a letter written in January and it means 2007, and what it records is that the baby had been seen at the neonatal clinic on 17 January to check his phosphate levels and in view of the results the recommendation was that he should stop medication at that time, but it requested the attendance of the baby at a clinic on 31 January 2006.
Mr Omar, in fact, refused the offer of accommodation at that time and we were shown this morning some notes which indicate what occurred at that time. It shows that on 20 February Mr Omar came and saw the council and said that he was not going to accept the offer of the property because of the baby having a hospital appointment at the Chelsea Hospital and he informed them indeed there was an appointment on 22 February. The council informed him that he had to bring an up-to-date letter from the hospital and the notes record Mr Omar coming in with a letter on 22 February, the letter stating that he attended the appointment on 21 February but said nothing further about the baby's medical condition, nor that the hospital was concerned about moving the child from the hotel to a self-contained flat. It shows Mr Omar being told that that letter would not be sufficient for the property to be withdrawn and the council offering Mr Omar a second appointment to view the property. The letter referred to in those notes appears to be one of 21 February 2007, which again we were shown this morning, which, as the notes indicate, simply recorded that the baby was seen at the outpatients clinic for a blood test on 21 February and gave a telephone number if any further information was required.
In the light of Mr Omar's refusal, the council then wrote to Mr Omar on 23 February and that letter was headed “Notice that our housing duty has come to an end”. It recites the reasons why Mr Omar was refusing to accept the property, which included a reference to having a letter from the Chelsea & Westminster Hospital and informed him that they were not intending to offer him another home. It also informed him that if he disagreed with the decision then he had a right to take it to review and it further informed him that if he became homeless in the future then he could make a further application, but if they concluded that he was homeless intentionally they would not have an obligation to house him.
On 2 March 2007 Mr Keith Hall, who was the manager of the Bayswater Family Centre, wrote a letter on behalf of the Omar family requesting a review and setting out in the letter the factors on which Mr Omar relied, which were: the prematurity of the child; the link that the family had with the local GP and health visiting services in Westminster; reliance that was being placed on Mr Omar's sister and the fact that if the Omar family were asked to reside at Brettenham Road E17, they would have to engage with a range of new medical practioners, new health visitors and paediatric services at a hospital and it says:
“It cannot be overestimated the worry and concern our clients have for the plight of their premature baby. They require the support of medical practioners and members of the family to help them through this. Taking away their support will seriously affect them.
We request you withdraw your offer of accommodation at 70 Brettenham Road, London E17 5BA and review your decision to discharge your accommodation duty.”
So review was sought. In order to conduct that review, Mr Omar was asked to fill in a medical assessment form. He was asked for that on 15 March and that was returned ultimately to the council on 27 March, Mr Omar providing the reasons why he had refused accommodation, and in the body of that report, at page 104 in the bundle, he gave as the medical reasons for refusal/review.
“Premature born child with low blood sugar level &...
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