When do local authorities have to conduct Housing Act 2004 hazard assessments as part of their homelessness duties?

The first part of the answer to this question was provided by the Court of Appeal in Temur v LB Hackney [2014] EWCA Civ 877 (our note here), where it was held that there was no obligation for an assessment when deciding whether a property was reasonable to continue to occupy under s.175(3) of the 1996 Act. The same Court has provided the second part of the answer in Firoozmand v LB Lambeth [2015] EWCA Civ 952, this time in connection with accommodation offered in discharge of the s.193 duty.

Mr F is an Iranian national with a long history of mental illness and acute sensitivity to noise. The local authority accepted a duty to rehouse Mr F on 17/9/13 and they kept him in the hostel room he was occupying temporarily at Studio 48, 40 Kenbury Street in discharge of that duty. A review of its suitability was requested on the grounds that Mr F was unable to tolerate the living conditions and he was moved to Flat 52 on an upper floor. Mr F remained troubled by neighbour noise in that new flat and a further review was requested, which culminated in a negative s.202 decision and an appeal to the County Court. The decision was quashed because the issue of suitability had not been properly addressed.

The reviewing officer then concluded that Mr F’s medical conditions were being adequately managed and that any noise and disruption within the building was at a low level. Taking into account inner-city living, the property was considered suitable. A County Court appeal was dismissed and permission to the Court of Appeal was granted on the sole ground that the review did not take account of Parts 9 and 10 of the Housing Act 1985 (“HA 1985”) and Parts 1 to 4 of the Housing Act 2004 (“HA 2004”) in assessing the suitability of the appellant’s accommodation, in breach of s.210 HA 1996.

Mr F’s argument was that by virtue of s.4 of the 2004 Act, the authority came under a duty to inspect the premises for any Category 1 or Category 2 hazards, which they failed to do. In addition, s.210(1) of the 1996 required the authority at least to have regard to the need for an assessment. As there was no mention of the 2004 Act in the decision letter, the authority could not, it was argued, have had regard to it.

The Court’s observations on this point begin at paragraph 30:

Much is likely to turn on the seriousness of the complaint about the condition of the premises or of the reasons for the inspection. This is a matter of judgment for the local housing authority in each individual case.

The Court rejected the contention that there must be a hazard assessment whenever a homeless applicant complains about a relevant matter. In Temur the CoA merely remarked that an assessment of suitability of s.193 accommodation may involve carrying out a hazard assessment. Furthermore, at 35:

I therefore accept Mr Beglan’s submission that, as in other cases involving an inquiry by a local housing authority, it is for the authority to decide whether it has sufficient information in order to make a decision subject only to a challenge on grounds of misdirection or irrationality.

On the question of whether the council ‘had regard’ to the 2004 Act (at 38):

We are dealing here with experienced housing officers who can be assumed to have relevant background knowledge of what they should consider in relation to the various homelessness applications with which they deal. It seems to me much more likely in the light of the detailed consideration which the Council did give to the noise issue that none of the officers responsible thought that the scale of the problem merited a full hazard assessment. Nor is it clear to me what such an assessment would have achieved.

There is a suggestion in paragraph 39 that for the council to have breached its s.210 duty would have required a failure to investigate a possible Category 1 hazard. In any event, that is probably the practical effect of this judgement and it limits significantly the cases where this argument can be raised, except possibly in out of time reviews where natural overcrowding or dilapidations have occurred over a long period of time.