Temur v Hackney London Borough Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Jackson,Lord Justice Lewison,Lord Justice Christopher Clarke |
| Judgment Date | 26 June 2014 |
| Neutral Citation | [2014] EWCA Civ 877 |
| Docket Number | Case No: B5/2013/2694 |
| Court | Court of Appeal (Civil Division) |
| Date | 26 June 2014 |
[2014] EWCA Civ 877
Lord Justice Jackson
Lord Justice Lewison
and
Lord Justice Christopher Clarke
Case No: B5/2013/2694
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE MAYOR'S & CITY OF LONDON COUNTY COURT
HIS HONOUR JUDGE BIRTLES
3CL40018l
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Iain Colville and Mr David Cowan (instructed by Miles and Partners LLP) for the Appellant
Mr Kelvin Rutledge QC and Ms Sian Davies (instructed by London Borough of Hackney) for the Respondent
Hearing date: 20th May 2014
This judgment is in eight parts, namely:
| Part 1. Introduction | paragraphs 2 to 8 |
| Part 2. The facts | paragraphs 9 to 24 |
| Part 3. The present proceedings | paragraphs 25 to 29 |
| Part 4. The appeal to the Court of Appeal | paragraphs 30 to 31 |
| Part 5. Did the reviewing officer have power to substitute an adverse decision on different grounds? | paragraphs 32 to 42 |
| Part 6. Did the reviewing officer err in failing to carry out a hazard assessment under the 2004 Act? | paragraphs 43 to 58 |
| Part 7. Did the reviewing officer fail to look to the future when considering whether the appellant was homeless? | paragraphs 59 to 71 |
| Part 8. Executive summary and conclusion | paragraphs 72 to 73 |
This is an appeal by an applicant for accommodation under Part VII of the Housing Act 1996 ("the 1996 Act") against a review decision that she is not homeless. Two important issues arise. The first is whether on a review under section 202 of the 1996 Act the review officer is entitled to substitute a decision which is less favourable than the decision under review. The second issue is whether, when considering if the applicant's current accommodation is so unsatisfactory that he/she is homeless under section 175 (3), it is necessary to apply the tests set out in sections 206 and 210 of the 1996 Act. According to counsel, both these issues have potentially significant resource implications for local authorities.
The appellant is MT, a married woman who is separated from her husband. Her solicitors are Miles and Partners ("MP"). The respondent is the London Borough of Hackney ("the Council").
The following are the relevant provisions of the 1996 Act:
" 175. Homelessness and threatened homelessness.
(1) A person is homeless if he has no accommodation available for his occupation, in the United Kingdom or elsewhere, which he —
(a) is entitled to occupy by virtue of an interest in it or by virtue of an order of a court,
(b) has an express or implied licence to occupy, or
(c) occupies as a residence by virtue of any enactment or rule of law giving him the right to remain in occupation or restricting the right of another person to recover possession.
…
(3) A person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for him to continue to occupy.
…
176. Meaning of accommodation available for occupation.
Accommodation shall be regarded as available for a person's occupation only if it is available for occupation by him together with—
(a) any other person who normally resides with him as a member of his family, or
(b) any other person who might reasonably be expected to reside with him.
References in this Part to securing that accommodation is available for a person's occupation shall be construed accordingly.
…
177. Whether it is reasonable to continue to occupy accommodation.
(2) In determining whether it would be, or would have been, reasonable for a person to continue to occupy accommodation, regard may be had to the general circumstances prevailing in relation to housing in the district of the local housing authority to whom he has applied for accommodation or for assistance in obtaining accommodation.
…
182. Guidance by the Secretary of State.
(1) In the exercise of their functions relating to homelessness and the prevention of homelessness, a local housing authority or social services authority shall have regard to such guidance as may from time to time be given by the Secretary of State.
(2) The Secretary of State may give guidance either generally or to specified descriptions of authorities.
183. Application for assistance.
(1) The following provisions of this Part apply where a person applies to a local housing authority for accommodation, or for assistance in obtaining accommodation, and the authority have reason to believe that he is or may be homeless or threatened with homelessness.
184. Inquiry into cases of homelessness or threatened homelessness.
(1) If the local housing authority have reason to believe that an applicant may be homeless or threatened with homelessness, they shall make such inquiries as are necessary to satisfy themselves —
(a) whether he is eligible for assistance, and
(b) if so, whether any duty, and if so what duty, is owed to him under the following provisions of this Part.
(2) They may also make inquiries whether he has a local connection with the district of another local housing authority in England, Wales or Scotland.
(3) On completing their inquiries the authority shall notify the applicant of their decision and, so far as any issue is decided against his interests, inform him of the reasons for their decision.
…
193. Duty to persons with priority need who are not homeless intentionally.
(1) This section applies where the local housing authority are satisfied that an applicant is homeless, eligible for assistance and has a priority need, and are not satisfied that he became homeless intentionally.
(2) Unless the authority refer the application to another local housing authority (see section 198), they shall secure that accommodation is available for occupation by the applicant.
…
202. Right to request review of decision.
(1) An applicant has the right to request a review of—
(a) any decision of a local housing authority as to his eligibility for assistance,
(b) any decision of a local housing authority as to what duty (if any) is owed to him under sections 190 to 193 and 195 and 196 (duties to persons found to be homeless or threatened with homelessness),
…
(4) On a request being duly made to them, the authority or authorities concerned shall review their decision.
…
206. Discharge of functions by local housing authorities.
(1) A local housing authority may discharge their housing functions under this Part only in the following ways—
(a) by securing that suitable accommodation provided by them is available,
(b) by securing that he obtains suitable accommodation from some other person, or
(c) by giving him such advice and assistance as will secure that suitable accommodation is available from some other person.
…
210. Suitability of accommodation.
(1) In determining for the purposes of this Part whether accommodation is suitable for a person, the local housing authority shall have regard to Parts 1 to 4 of the Housing Act 2004.
(2) The Secretary of State may by order specify—
(a) circumstances in which accommodation is or is not to be regarded as suitable for a person, and
(b) matters to be taken into account or disregarded in determining whether accommodation is suitable for a person".
Section 203 of the 1996 Act sets out the procedure to be followed on review. The Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 ("the 1999 Regulations") make further provision as to procedure. The 1999 Regulations include the following:
" 2. Who is to make the decision on the review
Where the decision of the authority on a review of an original decision made by an officer of the authority is also to be made by an officer, that officer shall be someone who was not involved in the original decision and who is senior to the officer who made the original decision.
…
8. Procedure on a review
…
(2) If the reviewer considers that there is a deficiency or irregularity in the original decision, or in the manner in which it was made, but is minded nonetheless to make a decision which is against the interests of the applicant on one or more issues, the reviewer shall notify the applicant –
(a) that the reviewer is so minded and the reasons why; and
(b) that the applicant, or someone acting on his behalf, may make representations to the reviewer orally or in writing or both orally and in writing."
Pursuant to section 182 of the 1996 Act the Secretary of State promulgated the Homelessness Code of Guidance for Local Authorities. I shall refer to this as "the Code of Guidance".
The Housing Act 2004 ("the 2004 Act") sets out in Part I a new system for assessing housing conditions. Under this system local authorities are required to assess what hazards are generated by housing. "Hazard" is defined as "any risk of harm to the health or safety of an actual or potential occupier of a dwelling". Such hazards may be classified by reference to defined categories. I shall refer to the exercise which local authorities carry out under Part I of the 2004 Act as "hazard assessment".
Having summarised the relevant statutory provisions, I must now turn to the facts.
The appellant is a Turkish national, now aged 25, who has indefinite leave to remain in the UK. She is married with one daughter, Hevin, who was born on 1 st October 2008. Hevin is now aged 5.
On 15 th July 2011 the appellant left the matrimonial home as a result, it is said, of violence and abuse on the part of her husband. It is said that her father-in-law did not allow her to take Hevin with her.
Over the next few months the appellant stayed with various friends and relatives and at other times in a...
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