Tower Hamlets London Borough Council v Rahanara Begum
| Jurisdiction | England & Wales |
| Judge | Lord Justice Neuberger,Lord Justice Tuckey,Lord Justice Ward |
| Judgment Date | 11 February 2005 |
| Neutral Citation | [2005] EWCA Civ 116 |
| Court | Court of Appeal (Civil Division) |
| Date | 11 February 2005 |
| Docket Number | Case No: B2/2004/1918 |
[2005] EWCA Civ 116
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BOW COUNTY COURT
His Honour Judge Hornby
BO 254470
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Ward
Lord Justice Tuckey and
Lord Justice Neuberger
Case No: B2/2004/1918
Mr Kelvin Rutledge and Ms Genevieve Screeche- Powell (instructed by the Legal Services Department, of the Tower Hamlets London Borough Council) for the Appellants
Mr Jamie Burton (instructed by Shelter Legal Services, London EC1V) for the Respondent
Introduction
This is a second appeal brought by the London Borough of Tower Hamlets ("the Council") against His Honour Judge Hornby's dismissal of their claim for possession of 20 Allonby House, Aston Street, London E14 ("the flat"). The claim had been brought against Mrs Rahanara Begum ("the respondent") in the Bow County Court.
It was common ground that the Council had validly determined the respondent's tenancy of the flat and that her tenancy attracted no statutory protection. However, the judge held that, because the Council continued to owe the respondent a duty to house her pursuant to Part VII of the Housing Act 1996 ("the 1996 Act"), she was entitled to retain possession of the flat by virtue of her right to respect for her home under article 8 of the European Convention on Human Rights ("article 8").
The facts
On 16 June 2000, the respondent applied to the Council, as her local housing authority, for assistance under Part VII of the 1996 Act, on the basis that she was involuntarily homeless. On 19 September 2000, the Council replied stating that they were "satisfied that you are eligible for assistance, homeless and that you have a priority need for accommodation" and that "your homelessness is not intentional". The Council's letter went on to state that long-term accommodation suitable for the Respondent was not currently available, and that the Council were therefore obliged to make temporary accommodation available to her under section 184 of the 1996 Act.
Accordingly, on 3 November 2000, the Council granted the respondent a tenancy of the flat, while they tried to find more permanent accommodation for her. Because the tenancy granted to the respondent by the Council was of temporary accommodation for a homeless person, she enjoyed no statutory protection: see paragraph 4 of Schedule 1 to the Housing Act 1985.
By a letter sent on 21 January 2002 (and received two days later), the Council made the respondent an offer of more permanent accommodation at 3 Brimsdown House, Devas Street, London E3. The letter informed the respondent of the arrangements which had been made for her to inspect 3 Brimsdown House, and warned her that, if she unreasonably refused the offer, the Council's "responsibility will be discharged… and you will be required to leave any accommodation provided by the Council under Part VII of the Housing Act 1996".
The letter of 21 January 2002 was accompanied by two other documents. First, there was a Notice to Quit determining the respondent's tenancy of the flat. Secondly, there was a letter in standard form explaining the respondent's rights in some detail. One of the things the respondent was told in this letter was that, if she accepted the proposed accommodation, i.e. 3 Brimsdown House, the Council's duty to her as a homeless person would be at an end. The standard letter also informed the respondent that, if she refused that accommodation, the Council's duty to house her would be at an end, provided that (1) she was aware of the consequence of refusal, (2) the offer was suitable, (3) it was reasonable for her to have accepted the offer, and (4) she was notified within 21 days "that the Council is satisfied with all these matters".
The standard letter also explained to the respondent that she if she did not think that the offer of accommodation made to her was "suitable" she could "request a review of the council's decision to offer her the accommodation" and emphasising that such a request " must be submitted IN WRITING within 21 days of the date of the offer letter accompanying these notes" (original emphasis).
The respondent duly viewed 3 Brimsdown House on 24 January 2002 and orally turned it down. The following day, the Council wrote to her, expressing concern that she had rejected 3 Brimsdown House and stating:
"As you have been informed, [the Council] makes one offer only to homeless persons. If you are in temporary accommodation and do not accept the tenancy, this provision will cease as the Council by making a reasonable and suitable offer of permanent accommodation, will have ceased its responsibility to you under the provisions of the Housing Act 1996, Part VII…".
The letter of 25 January went on to advise the respondent "to accept and sign for the offer by midday, Monday 28 January 2002".
On 28 January 2002, the respondent wrote to the council "to formally refuse the offer" of 3 Brimsdown House, and, in her letter, she set out her reasons for this refusal.
On 22 May 2002, Mrs S Hayes, a re-housing manager of the Council, wrote the respondent a letter setting out the brief history of the respondent's relationship with the Council since June 2000, and going on to deal in some detail with the reasons the respondent had put forward for rejecting 3 Brimsdown House. Mrs Hayes rejected all those reasons, and stated that she was not prepared to overturn the Council's decision to offer the respondent 3 Brimsdown House, or their decision that it would be reasonable for her to accept that property. Mrs Hayes's letter concluded in the following terms:
"I must advise you that you have no further right of review of my decision, but should you be dissatisfied of the same then you may appeal to the county court on a point of law, provided any such appeal is lodged within 21 days of the date of this letter.
"I note with some disappointment that you failed to sign and accept the tenancy offered to you despite being advised in writing and verbally… of the consequences of refusing the offered accommodation should your review be unsuccessful. Given that you chose not to accept the offered accommodation I would advise you that it is now your responsibility to make your own arrangements for your accommodation and vacate as soon as possible 20 Allonby House. … This authority is satisfied that it has offered suitable and reasonable accommodation to you and that no further duty is owed under homelessness legislation."
No appeal was brought by the respondent, who remained in occupation of the flat. On 15 August 2002, the Council began possession proceedings against the respondent. On 13 June 2003, Deputy District Judge Goodman refused the Council an order for possession of the flat on the grounds that the Notice to Quit was invalid. This was on the basis that the Council remained liable to house the respondent, notwithstanding her rejection of 3 Brimsdown House, because it had failed to inform her, within 21 days of that rejection, that that property was suitable accommodation and that it would be reasonable to have accepted that offer.
The Council appealed, and the appeal came on before Judge Hornby. Mr Jamie Burton, who appeared for the respondent, as he does before us, conceded that he could not support the District Judge's conclusion that the Notice to Quit was bad. However, he contended that, because the Council had not notified the respondent, within 21 days of her refusal of 3 Brimsdown House, that it was suitable accommodation for her and that it was reasonable for her to accept it, they remained under a duty to house the respondent, and that accordingly, it would be contrary to the respondent's Article 8 rights if an order for possession was made. The judge accepted that argument in a full and careful judgment given on 17 August 2004.
I shall first set out the relevant Statutory provisions, and will then turn to consider the proper analysis and legal consequences of the facts set out above. All references hereafter to sections are, unless the contrary is stated, to sections of the 1996 Act, in its form prior to amendment by the Homelessness Act 2002 ("the 2002 Act").
The Statutory Provisions
Part VII of the 1996 Act is headed "Homelessness", and the first few sections are concerned with identifying "homelessness and threatened homelessness", and deal in general terms with duties in relation to homelessness. Sections 183 and 184 are directed towards "application for assistance in case of homelessness or threatened homelessness". If an application is made by someone who claims to be homeless or threatened with homelessness, the local housing authority has a duty to investigate whether he is eligible for assistance, and, if so, what duty is owed to him and to notify him of their decision. Any such notification "shall also inform the applicant of his right to request a review of the decision and the time within which such a request must be made": see section 184(5). Eligibility for assistance is the subject of sections 185–187. Sections 188 and 189 are concerned with "Interim duty to accommodate".
The "Duties to persons found to be homeless or threatened with homelessness" are set out in sections 190 and following. The centrally relevant provision for present purposes is section 193, which is headed "Duty to persons with priority needs who are not homeless intentionally" (a category which, it is common ground, included the respondent at least until her rejection of 3 Brimsdown...
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