Solihull Metropolitan Borough Council v Shamina Khan
| Jurisdiction | England & Wales |
| Judge | Lord Justice Beatson,Sir Robin Jacob,Lady Justice Rafferty |
| Judgment Date | 28 January 2014 |
| Neutral Citation | [2014] EWCA Civ 41 |
| Date | 28 January 2014 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B5/2012/3364 |
[2014] EWCA Civ 41
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BIRMINGHAM COUNTY COURT
Ms Recorder Mountfield QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Rafferty
Lord Justice Beatson
and
Sir Robin Jacob
Case No: B5/2012/3364
Catherine Rowlands (instructed by Solihull Metropolitan Borough Council) for the Appellant
The Respondent did not appear and was not represented
This appeal concerns the obligations of a local housing authority under section 193 of the Housing Act 1996 ("the Act") when deciding whether its duty to secure accommodation is available for occupation by a homeless person has been discharged because the homeless person has refused a final offer of accommodation by the authority.
In an order dated 5 December 2012 in the Birmingham County Court, Ms Recorder Mountfield QC allowed an appeal under section 204 of the Act by Ms Shamina Khan against a review decision by Solihull Metropolitan Borough Council ("the Council") dated 22 June 2012. The Council's review decision was that it had discharged its duty to Ms Khan under section 193(2) of the Act by an offer of accommodation at 17/5 Wingfield Close, Chelmsley Wood, Birmingham made on 18 March 2012 which Ms Khan refused. The learned Recorder held that the Council erred in law and quashed the review decision.
Ms Khan has taken no part in this appeal. In a letter dated 5 April 2013, Eric Bowes & Co, the solicitors who acted for her before the learned Recorder, informed the Council that she had obtained accommodation in the private sector and that they were no longer acting for her. The Council, which has lost contact with Ms Khan, pursues the appeal for two reasons. The first is that, as a result of the Order, it potentially remains under a duty to her under section 193(2) and wishes to ensure that it is no longer bound to secure accommodation for her. The second is that the argument successfully advanced on behalf of Ms Khan before the Recorder is being advanced on behalf of other appellants in the Birmingham County Court. Having heard Miss Rowlands on behalf of the Council, we announced our decision to allow the appeal, and said that we would give our reasons subsequently in writing. These are my reasons for allowing the appeal.
The issue before this court is a narrow one, but it is of importance, both to local authorities and to homeless persons. It concerns the position of a local authority, when reviewing a decision to offer a homeless person accommodation in an area in which that person has stated he or she did not wish to be accommodated. In considering whether that person has unreasonably rejected an offer of accommodation, is the Council required to take into account the homeless person's state of knowledge about the Council's rejection of the person's reasons for stating he or she did not wish to live in a particular area?
In the present case, Ms Khan stated in her application for housing as a priority need, made on 21 December 2011, that she could not live in Chelmsley Wood because of her fear of attack in that area from a gang associated with her husband. She gave as her preferred areas, Shirley, Solihull, Monks Path and Olton. As a result of investigations by the Council, it concluded that Ms Khan's fear of attack in Chelmsley Wood was unfounded and the accommodation was suitable. Ms Khan's case was that, despite being told by an officer of the Council that inquiries would be made about the gang, no one told her until after the review decision that the Council did not believe she had reasonable grounds for fearing living in Chelmsley Wood. The argument accepted by the Recorder was that where the person offered accommodation did not know that the reasons for excluding an area had been rejected by the Council, it was not open to the Council to conclude that that person's rejection of the offer was unreasonable.
The statutory framework: The relevant provisions can be summarised briefly. By section 193(2) of the Act, a housing authority "shall secure that accommodation is available for occupation by…" persons with priority need who are not intentionally homeless, unless it refers their application to another local housing authority. The housing authority must (see section 193(7F)) be satisfied that the accommodation offered in a "final offer" is suitable and that it is reasonable for the homeless person to accept the offer. As the Recorder observed (judgment, [42]), Ravichandran v Lewisham LBC [2010] EWCA Civ 755 at [24] and [35(4)] makes it clear that that is a different question to whether the offer was one which it was reasonable for the housing authority to make. The Recorder also referred to the statement of Ward LJ in Slater v Lewisham LBC [2006] EWCA Civ 394 that suitability and reasonableness address different questions and cannot be dealt with compendiously. In assessing whether it was unreasonable for a homeless person to refuse an offer of suitable accommodation, Ward LJ stated (at [34]) that "the decision-maker must have regard to all the personal characteristics of the applicant, her needs, her hopes and her fears, and then, taking account of [those individual subjective factors], ask whether it is reasonable, an objective test, for the applicant to accept". The test, he stated, "is whether a right-thinking local housing authority would conclude that it was reasonable that this applicant should have accepted the offer of this accommodation".
By section 202(1A) of the Act a homeless person who has been offered accommodation has the right to request a review of the suitability of the accommodation. Where the homeless person refuses such a "final offer", if he or she has been told (a) that the possible consequence of refusal is that the housing authority's duty to secure accommodation will cease, and (b) of his right to request a review of the decision, section 193(7) provides that the housing authority's duty is discharged.
By section 204 of the Act a person who has requested a review and is dissatisfied with the decision on the review has an appeal on a point of law to the county court. The court can only interfere with the housing authority's decision on grounds similar to the well-known public law grounds for judicial review: see, for example, Begum v Tower Hamlets LBC [2003] UKHL 5 at [99].
Statutory Guidance: Housing authorities are required by section 182 of the Act to have regard to such guidance as is given by the Secretary of State. The provision of the Homelessness Code of Guidance for Local Authorities (2006), paragraph 6.15, states:
"The obligation to make enquiries and satisfy itself whether a duty is owed rests with the housing authority, and it is not for applicants to 'prove their case'. Applicants should always be given the opportunity to explain their circumstances fully, particularly on matters that could lead to a decision against their interests, for example, a decision that an applicant is intentionally homeless."
The material facts: What follows is primarily taken from [9]–[26] of the Recorder's judgment, but I also refer to a number of the documents before the Recorder.
At the material time Ms Khan was married with two young children. The matrimonial home was in Hall Green. Her husband was a violent and abusive alcoholic and drug user and she sometimes went and stayed with her brother in Shirley. In April 2011 Ms Khan's husband was assaulted at the matrimonial home, she was threatened, and her car windows were broken. At some time in the autumn, as a result of domestic violence, mortgage arrears and an alleged threat of repossession by the mortgagee, Ms Khan and her children left the matrimonial home and sought refuge with her brother, his wife and four children in Shirley. This meant that her brother's house was over-crowded.
I referred (at [5]) to Ms Khan's application on 21 December to be housed as a matter of priority and to her statement that she was not able to live in Chelmsley Wood and the reason for this. A note of her interview by a Council housing officer at the time of or shortly after the application records inter alia that Ms Khan feared "reprisals from her husband and his associates, who are known as the Hutton Crew" and the interviewer's statement that the Council "will be getting further information from the police". 1
In a letter dated 15 February 2012, from Mrs K Mitchell, a Housing Advisor, the Council accepted that Ms Khan was in priority need and that it had a duty to secure that accommodation was made available to her and her children.
When the Council investigated Ms Khan's claim to be at risk from the Hutton Crew, it concluded that she would not have been at risk because officers from community housing had no information about a gang named "the Hutton Crew" and because she was unable to provide any details of people associated with the gang or evidence of links between Chelmsley Wood and her husband and his associates. In her statement, Kim Holmes, a Housing Options and Homeless Manager employed by Solihull Community Housing Ltd, described the...
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