Solihull Metropolitan Borough Council v Khan [2014] EWCA Civ 41

A rather odd second appeal from a s.204 appeal decision. At issue was whether the Council’s review officer should 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 short, was an absence of a stated reason for a decision a potential issue on review.

Ms K had applied to Solihull as homeless and a full duty accepted. Her application for permanent housing stated that she did not want to live in “Chelmsley Wood because of her fear of attack in that area from a gang associated with her husband”. Solihull had decided, apparently without informing Ms K, that her reasons for fear of attack in Chelmsley Wood were unfounded and she had been made an offer of property in that area. Ms K had refused that offer and requested a review of suitability. The review upheld the suitability of the offer. Ms K brought a s.204 appeal.

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.

Solihull appealed the s.204 appeal outcome. Although the case was academic by the time it reached the Court of Appeal, Ms K having obtained private sector accommodation, the Court nonetheless decided to hear the appeal, apparently because Solihull feared it might owe a continuing duty to Ms K and because ‘other appellants’ were said to be using the same argument in Birmingham County Court. There was no representation for or attendance by Ms K.

The review decision by the contracted out reviewer, Minos Perdios, had acknowledged Ms K’s subjective feeling that the property was not reasonable but, following Ahmed v Leicester City Council [2007] EWCA Civ 843, he considered that the evidence was such that her beliefs were not objectively reasonable. In particular he found that there was no evidence about the gang threat that Ms K had said was present in the area found in the Council’s own investigations (which, of course, Ms K had not been told about).

At first instance, the Recorder had found:

The case put on behalf of Ms Khan was that, before she refused the offer, she did not know that the Council had made enquiries and rejected her case as to why she felt scared to live in Chelmsley Wood, or that the Council had taken the view that she would be physically unsafe if she lived in Shirley. The Recorder stated that Ms Khan had not been told this, either in the “final offer” letter or in any oral or written communication before she had to decide whether to accept or reject the offer: judgment, [24].

 

The Recorder relied in particular (see judgment, [38] and [43]) on the judgment of Pill LJ in Ahmed v Leicester City Council [2007] EWCA Civ 843 at [18], [22] and [23] and on paragraph 6.15 of the Statutory Code which I have set out at [7]. In Ahmed’s case, Pill LJ stated at [23] that “there may be cases where matters which arise on the review are such that they can only fairly be resolved if there is some dialogue between the reviewing officer and the [individual involved]”. The Recorder considered (judgment, [43]) that this was such a case. She stated (at [45]) “an important personal characteristic of [Ms Khan] was what she knew, or did not know, about the outcome of the [Council’s] enquiries into the factual basis for her fear for her personal safety in Chelmsley Wood, and hence her knowledge as to the [Council’s] state of mind in making an offer of accommodation in an area for which she had not expressed a preference, as a result of an internally generated ‘bid'”. The absence of a dialogue between the Council and Ms Khan on the outcome of the Council’s enquiries into the factual basis for her fear for her safety in Chelmsley Wood before that was used to determine an issue as to suitability against her interests was also, stated the Recorder (judgment, [45]), contrary to paragraph 6.15 of the Statutory Code.

The review officer ‘should have asked more questions’, the Recorder held, before reaching conclusions on the objective reasonableness of Ms K’s subjective view.

On second appeal, Solihull argued that to accept Ms K’s argument was to undermine the Court of Appeal decision in Akhtar v Birmingham City Council [2011] EWCA Civ 383 [Our report].

In that case, this court (see [46]) rejected the submission that, as a matter of principle, every offer letter should give reasons explaining why the offered property is considered to be suitable and reasonable for the applicant to accept. Etherton LJ, with whom Maurice Kay and Rimer LJJ agreed, did so because it was implicit in any offer of accommodation that the housing authority did consider the questions of suitability and that it was reasonable for the homeless person to accept the offer. The Recorder does not expressly explain why she rejected this submission. It is possible that she considered that her decision was not inconsistent with the decision of this court in Akhtar’s case because of the recognition by Pill LJ in Ahmed’s case of the need for dialogue in some cases.

 

If that was her reason, in my judgment it overlooks the importance of Etherton LJ’s statement at [47] of Akhtar’s case. He there rejected the submission that the homeless person was entitled as a matter of fairness to an explanation of the limited basis upon which a review had been successful, absent which he was allowed to assume that the housing authority had made a simple error in its subsequent offer of another property. He stated that was not a reasonable assumption for the homeless person to make because that person “could easily have obtained confirmation…by speaking to a responsible employee of [the housing authority]…”.

If Ms K was concerned that the Council had made an error in offering the property in that location, she should have raised it with the Council rather than simply refusing the offer. The Recorder’s decision would, in effect, “introduce an obligation to give reasons for the property offered, at least where the property offered is in an area which the homeless person has stated she does not wish to live.” This could not sit with Akhtar.

However, while there might be practical benefit to Councils in issuing standardised offer and decision letters, this should:

not be pressed too far lest housing authorities believe that they do not need to give individual attention to the particular position of the homeless person with a priority need. That person will have, as Ms Khan had, indicated needs and preferences in the initial application. The housing authority must take those into account, even if it is ultimately not able to meet them, whether because of scarcity of available housing in a particular area or, as in this case, because the factual premise for the needs and preferences has been rejected.

Appeal allowed.