Vilvarasa v Harrow LBC
| Jurisdiction | England & Wales |
| Judge | Lord Justice Munby,Lord Justice Rimer,Lord Justice Carnwath |
| Judgment Date | 16 November 2010 |
| Neutral Citation | [2010] EWCA Civ 1278 |
| Court | Court of Appeal (Civil Division) |
| Date | 16 November 2010 |
| Docket Number | Case No: B4/2010/0816 |
[2010] EWCA Civ 1278
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WILLESDEN COUNTY COURT
HIS HONOUR JUDGE McDOWALL
9WI03980
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Carnwath
Lord Justice Rimer
and
Lord Justice Munby
Case No: B4/2010/0816
Mr Iain Colville (instructed by Saul Marine & Co) for the Appellant
Ms Emma Godfrey (instructed by London Borough of Harrow) for the Respondent
Hearing date: 8 November 2010
This is an appeal against the dismissal by His Honour Judge McDowall, sitting in the Willesden County Court, of the appeal by Mr Inparasa Vilvarasa from a decision of the London Borough of Harrow that its duty under the Housing Act 1996 (as amended) to secure that accommodation was available for him and his family had ceased by virtue of section 193(5) of the Act.
In my judgment Judge McDowall was right to dismiss the appeal, essentially for the reasons he gave in his judgment of 19 March 2010. Mr Vilvarasa's further appeal to this court must accordingly be dismissed.
The statutory framework
So far as is material for present purposes the statutory setting is to be found in sections 193(1)-(3):
"(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 …, they shall secure that accommodation is available for occupation by the applicant.
(3) The authority are subject to the duty under this section until it ceases by virtue of any of the following provisions of this section."
As section 193(3) indicates, there is a variety of circumstances in which the local authority's duty may cease; a general description can be found in the judgment of May LJ in Griffiths v St Helens Metropolitan Borough Council [2006] EWCA Civ 160, [2006] 1 WLR 2233, at para [34]. For present purposes I need refer to only three.
The first, which for convenience I shall refer to as 'a subsection (5) case', is set out in section 193(5):
"The local housing authority shall cease to be subject to the duty under this section if the applicant, having been informed by the authority of the possible consequence 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 second, which for convenience I shall refer to as 'a subsection (7) case', is set out in sections 193(7), (7A) and (7F)(a):
"(7) The local housing authority shall also cease to be subject to the duty under this section if the applicant, having been informed of the possible consequence of refusal and of his right to request a review of the suitability of the accommodation, refuses a final offer of accommodation under Part 6.
(7A) An offer of accommodation under Part 6 is a final offer for the purposes of subsection (7) if it is made in writing and states that it is a final offer for the purposes of subsection (7).
(7F) The local housing authority shall not –
(a) make a final offer of accommodation under Part 6 for the purposes of subsection (7) … unless they are satisfied that the accommodation is suitable for the applicant and that it is reasonable for him to accept the offer."
The third, which for convenience I shall refer to as 'a subsection (7B) case', is set out in sections 193(7B), (7C), ( 7D), (7E) and (7F)(b):
"(7B) … the authority shall also cease to be subject to the duty under this section if the applicant accepts a qualifying offer of an assured shorthold tenancy which is made by a private landlord in relation to any accommodation which is, or may become, available for the applicant's occupation.
(7C) … the applicant is free to reject a qualifying offer without affecting the duty owed to him under this section by the authority.
(7D) For the purposes of subsection (7B) an offer of an assured shorthold tenancy is a qualifying offer if –
(a) it is made, with the approval of the authority, in pursuance of arrangements made by the authority with the landlord with a view to bringing the authority's duty under this section to an end;
(b) the tenancy being offered is a fixed term tenancy (within the meaning of Part 1 of the Housing Act 1988 (c 50)); and
(c) it is accompanied by a statement in writing which states the term of the tenancy being offered and explains in ordinary language that –
(i) there is no obligation to accept the offer, but
(ii) if the offer is accepted the local housing authority will cease to be subject to the duty under this section in relation to the applicant.
(7E) An acceptance of a qualifying offer is only effective for the purposes of subsection (7B) if the applicant signs a statement acknowledging that he has understood the statement mentioned in subsection (7D).
(7F) The local housing authority shall not –
… (b) approve an offer of an assured shorthold tenancy for the purposes of subsection (7B) … unless they are satisfied that the accommodation is suitable for the applicant and that it is reasonable for him to accept the offer."
It may be of assistance at this point to note certain features of this statutory scheme. First, there are significant differences in the information and explanations that have to be supplied to the applicant. In a subsection (5) case the relevant information is that set out in subsection (5). In a subsection (7) case the relevant information is that set out in subsections (7) and (7A). In a subsection (7B) case the relevant information is that set out in subsection (7D)(c). Second, there are differences in the formal requirements. In a subsection (7) case and likewise in a subsection (7B) case some of the necessary information is required to be given "in writing": see subsections (7A) and (7D)(c). There is no requirement that anything be in writing in a subsection (5) case. Third, there is an important difference between the criteria applicable in relation to the offered accommodation. In a subsection (5) case the relevant criterion is that the property is "suitable". In a subsection (7), as also in a subsection (7B) case, the property must be "suitable" and it must be "reasonable" for the applicant to accept it.
The facts
On 9 June 2009 the local authority wrote to Mr Vilvarasa accepting that he was homeless, eligible for assistance, had a priority need, had not become homeless intentionally and had a local connection with Harrow. The local authority accordingly accepted that it had a duty to secure that accommodation was available for him. The conditions set out in section 193(1) thereby being met, the local authority, as it accepted, thus became subject to the duty under section 193(2).
On 19 July 2009 the local authority wrote again to Mr Vilvarasa. So far as material for present purposes the letter read as follows:
"I wish to advise you that you are being offered unfurnished temporary accommodation which should be available shortly. This accommodation will be let to you as an Assured Shorthold Tenancy (AST). This offer of accommodation discharges the Councils duty to you under S 193 of the Housing Act 1996—Part VII, as amended by the Homelessness Act 2002, to secure that accommodation is available for your occupation.
This duty will end if you cease to be eligible for assistance, become intentionally homeless from the accommodation made available for your occupation, accept an offer of accommodation through the Councils Allocation Scheme (Locata), accept an offer of an assured tenancy from a private landlord, cease to occupy the accommodation as your only or principal home, refuse a final offer of accommodation under Part 6 or accept a qualifying offer of an AST made by a private landlord.
…
I regret that because of a chronic shortage, only one suitable offer of accommodation can be made. If you decide not to accept this offer, please let [name] in the Housing Provision Team know immediately. Your reasons for refusal will then be considered. If the council decides that this offer of accommodation is suitable, the offer will have discharged the Councils housing duty to you. You can request a review of this decision and you can still choose to move into the accommodation whilst the review is decided. If the review decision is that the accommodation is unsuitable, you will be found alternative temporary accommodation as soon as possible. If you decide not to move in then this property will be allocated to another homeless family and if the review decision is that the property is suitable and therefore that it discharges the Councils housing duty, you will be required to make your own arrangements for alternative accommodation."
It is quite clear that this letter was drafted with subsection (5) in mind. It referred to the accommodation as "temporary". It identified the relevant criterion as being whether the accommodation was "suitable". And the language of the final paragraph I have set out was plainly drafted by reference to subsection (5) and not by reference to the very different language of subsections (7A) and (7B)(c). But it is to be noted that the letter did not identify any specific property as being offered.
On 19 August 2009 the local authority contacted Mr Vilvarasa by telephone and offered him accommodation at 6B Welbeck Road. There is no...
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