Shovelar and Others v Lane and Others

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Etherton,Lord Justice Rimer,Lord Justice Maurice Kay,LORD JUSTICE WARD,Lady Justice Arden,Lord Justice Moore-Bick
Judgment Date12 Jul 2011
Neutral Citation[2011] EWCA Civ 802,[2011] EWCA Civ 383
Docket NumberCase No: A2/2010/0986,Case No: B5/2010/1572

[2011] EWCA Civ 383

IN THE HIGH COURT OF JUSTICE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM BIRMINGHAM COUNTY COURT

His Honour Judge Worster

BM00006A

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Maurice Kay

VICE PRESIDENT OF THE COURT OF APPEAL CIVIL DIVISION

Lord Justice Rimer

and

Lord Justice Etherton

Case No: B5/2010/1572

Between:
Naseem Akhtar
Appellant
and
Birmingham City Council
Respondent

Nicholas Nicol (instructed by Tyndallwoods) for the Appellant

Jonathan Manning and Emily Orme (instructed by Birmingham City Council Legal Services) for the Respondent

Hearing dates: 15 th February 2011

Lord Justice Etherton

Introduction

1

This appeal concerns the homelessness provisions in Part 7 of the Housing Act 1996 ("the Act"). It is an appeal from the order dated 7 June 2010 of HH Judge Worster in the Birmingham County Court dismissing the appeal of the Appellant, Naseem Akhtar, from a review decision of the Respondent, Birmingham City Council, pursuant to sections 202 and 203 of the Act, that the Respondent had discharged its duty to secure accommodation for the Appellant under section 193(2) of the Act. The reason given in the review decision letter was that the Respondent had discharged its duty by its offer to the Appellant of 45 Hartley Road, Kingstanding, Birmingham ("Hartley Road"). That offer was refused by the Appellant on the ground that Hartley Road was unsuitable.

2

The issues on the appeal are (1) whether the Respondent, when it notified the Appellant by letter dated 5 May 2009 that it had decided a review in favour of the Appellant in relation to an offer of 41 Twickenham Road, Kingstanding, Birmingham ("Twickenham Road"), should have stated the reason for that decision, and in particular that its decision had been made solely on the ground of the size of Twickenham Road, and not on the other grounds of objection by the Appellant, including location; and (2) whether the Respondent, when it subsequently made its offer to the Appellant of Hartley Road by letter dated 12 August 2009, should have stated why it considered that Hartley Road was suitable for the Appellant and her family and it would be reasonable for her to accept it, and in particular explaining why, by contrast, it had previously agreed with the Appellant on review that Twickenham Road had been unsuitable. The Appellant's case is that, when she refused the offer of Hartley Road, she was under the mistaken impression that the Respondent had previously accepted Twickenham Road to be unsuitable because of, among other things, its location in Kingstanding, and that her objection to Hartley Road on the grounds of its location also in Kingstanding would be bound to be accepted as a valid objection.

3

Expressed in terms of principle, the issues on the appeal are whether, notwithstanding the absence of any express statutory requirement to do so, a local housing authority must, when it makes an offer of accommodation pursuant to its duty under section 193(2) of the Act, state its reasons for considering the property to be suitable and that it is reasonable for the applicant to accept it; and must, when it decides a review under sections 202 and 203 of the Act in favour of the applicant, state its reasons for its decision.

4

As a result of directions given by Mummery LJ on 29 November 2010, both the Appellant's application for permission to appeal and, if granted, the appeal have been listed before us, and we have heard them together.

The statutory framework

5

The statutory framework, so far as relevant to the determination of this appeal, may be summarised as follows. Section 193(2) of the Act imposes on a local housing authority a duty to secure that accommodation is available for occupation by an applicant who is homeless, eligible for assistance and has a priority need, and has not become homeless intentionally. By section 193(7) the authority ceases to be subject to that duty if the applicant, having been informed of the possible consequences of refusal and of his or her right to request a review of the suitability of the accommodation, refuses a final offer of accommodation under Part 6 (allocation of housing accommodation). Section 193(7F) provides that the authority must not make such a final offer unless it is satisfied that the accommodation is suitable for the applicant and that it is reasonable for him or her to accept the offer.

6

Section 202 of the Act confers on the applicant a right to request a review by the housing authority of its decision that the offered accommodation is suitable and that it is reasonable for the applicant to accept it, and of any decision by the authority that it has discharged its duty under section 193(2) by, for example, an offer and its refusal within section 193(7). Section 202(1A) of the Act provides that an applicant, who is offered accommodation as mentioned in section 193(7), may request a review in respect of the suitability of that accommodation whether or not he or she has accepted the offer.

7

Section 203 of the Act makes provision for the procedure on such a review. The Allocation of Housing and Homelessness (Review Procedures) Regulations 1999, which have been made pursuant to section 203, provide for the applicant to make representations in connection with the review. Section 203(3) provides that the authority shall notify the applicant of the decision on the review. If the decision on the review is to confirm the original decision on any issue against the interests of the applicant, section 203(4) requires the authority to notify the applicant of the reasons. By virtue of section 204 of the Act the applicant has a right to appeal to the County Court on a point of law if he or she is dissatisfied with the decision on the review.

8

The relevant statutory provisions are set out in the appendix to this judgment.

Factual background

9

The Appellant lives with her seven children aged between 12 and 21. She applied to the Respondent as a homeless person on 21 March 2005. On 12 December 2006 the Respondent accepted a full housing duty to the Appellant pursuant to section 193 of the Act.

10

On 24 February 2009 the Respondent offered Twickenham Road to the Appellant. It had 3 bedrooms and 2 living rooms. The Appellant rejected the offer. The Respondent notified the Appellant that, in the light of her refusal, it regarded itself as having discharged its duty to her under Part 7 of the Act as she had refused an offer of accommodation that was suitable and reasonable for her to have accepted.

11

The Appellant requested a review of the decision. Representations were made by her solicitors in a letter dated 23 March 2009. They raised three issues. The first was that Twickenham Road was too small. The second was that it was too far from the facilities her family needed. It was said, in particular, that the Appellant had been living for some time in temporary accommodation in Moseley, and her children were settled in local schools; one of her daughters was in a GCSE year; and one of her sons had special needs; her children also attended the local Islamic school at the mosque in Balsall Heath. The third was that she would feel isolated and unsafe in the area: she saw no Pakistani people there.

12

By letter dated 5 May 2009 the review officer notified the Appellant that he had decided to overturn the Respondent's decision that it had discharged its duty to her. He wrote:

"I have considered all the evidence including but not limited to:

Your homeless application form

Your review request dated 23 March 2009

Taking into account all the evidence available to me, I have concluded:

I have decided to overturn the decision to discharge duty to you, and to reinstate your homeless priority status. Subsequently, you will be made one final offer of accommodation in line with Current Allocations Policy.

Birmingham City Council 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, which fulfils the City Council's duty under the grounds of homelessness."

13

The standard-form letter spelled out the choice she would have when she received the (next) offer:

"When you are made your final offers of accommodation you have two choices. You can either:

(1) Accept the property or

(2) Refuse the property.

Irrespective of your decision, you can ask us to review the suitability of the offer. You should however be aware that if you refuse the property and your review is unsuccessful, you will not be made any further offers of accommodation from Birmingham City Council because of your homeless status. If you refuse the offer we are limited to providing you with advice and assistance.

You will be offered accommodation suitable for your household as defined in the City Council's Allocations Policy. If you choose to refuse a further offer, based only on the basis that it is not in your main area of choice, or it is not the property type of your preference, it is unlikely that you will be made a further offer. As you were advised in your homeless interview, if the City Council is unable to secure a suitable property for you within 8 weeks of accepting the main housing duty towards you, your areas of choice may be extended to city-wide.

We therefore advise all applicants to carefully consider accepting the offer made to them to alleviate homelessness. There is no guarantee that you will be made another offer. I also strongly advise you to utilise the opportunity to have an accompanied viewing, whereby a Housing Officer will be able to discuss any queries...

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