Boreh v London Borough of Ealing [2008] EWCA Civ 1176 was an appeal from a s.204 appeal of a s.202 review that upheld a finding that a property offered in discharge of s.192(3) duty was suitable.
Mrs Boreh was owed the full housing duty by Ealing. Ealing offered a property in discharge of that duty, which Mrs Boreh rejected as unsuitable. Ealing found on review that it was. Mrs Boreh is significantly disabled, uses a wheelchair and cannot stand unaided for more than 2 minutes.
Her daughter saw the property on her behalf and rejected it, giving a number of reasons. of these, the one that remained significant on appeal to the Court of Appeal was the absence of a ramp to the stepped front door.
Ealing’s initial decision made no reference at all to wheelchair access via the front door or any access to the property from the outside. On s.202 review, after an inspection of the property, Ealing said that the property was, or shortly would be, accessible via a side door and rear patio door, using an alley that had a wooden gate that ‘could be widened if necessary’ (having noted that it was too narrow for a wheelchair on a site visit), but noted that for front door access ‘a ramp would have to be installed’ and stated that ‘it was confirmed with the owner of the property that a ramp would be fitted’.
On S.204 appeal, the issue was whether a property which was currently unsuitable could actually be suitable as an offer under s.210 in view of proposed alterations, adaptations or additions to it?
The Recorder found that it could, while it was question of fact and degree the language of s.206 [sic] permitted this. [The Court of Appeal pointed out he must have meant s.210 on suitability]. The Recorder found that amongst some other adaptations, ‘there was to be a ramp to the front door’ and that ‘the gate would be widened if necessary’. There was no error in law in the s.202 review.
The Court of Appeal took a different view, based on a reading of the s.202 review decision.
There is nothing in principle wrong with the Recorder’s view that prospective alterations and adaptations make a property suitable at the time of offer, para 27:
Whilst I record that we had no argument from either side to the contrary effect, I would respectfully agree with the Recorder that the suitability of offered accommodation is not to be judged exclusively by reference to the condition of the accommodation at the time of the offer, but that the assessment of its suitability can and should also take into account any adaptations or alterations that are, at that time, proposed to be made. I would, however, qualify that by saying that I consider that any such proposals would have to be the subject of assurances that the applicant could fairly regard as certain, binding and enforceable. I also agree with the Recorder that, if the accommodation as it currently stands is unsuitable, it will be a matter of fact and degree as to whether any such proposed adaptations and alterations will be such as to make it suitable. At one extreme, the proposed adaptations may be simple, and easily and quickly effected: for example, the installation of a ramp for access purposes. At the other extreme they may involve the carrying out of such major works as to make the accommodation uninhabitable in the meantime: in such a case the property might well be regarded as unsuitable despite the proposal to carry out the works.
However, the Recorder was in error in taking into account adaptations there were being proposed right up to the point of the review decision. The cut of point for considering proposed adaptations must be the initial decision. In this case there was no discussion of access via the front door or the alleyway at the time of the decision, which focused entirely on the suitability of the interior of the property. There was no ongoing discussion between Ealing and Mrs Boreh about adaptations after the decision that would merit later proposals being included in the review decision.
As Mrs Boreh’s appeal actually focussed on the absence of the front ramp, the Court noted that it wasn’t addressed in the initial decision but was acknowledged as required by the review decision, only to be met with the inconclusive statement that a ramp would be fitted. By whom and when, and when any agreement to do so was reached, was not clear at all.
The lead judgment is by LJ Rimer, but LJ Walls’ additional comments bear quoting in full (paras 55-58):
I have to confess to some impatience that this case should not only have required an appeal to the Recorder but also a full hearing as a second appeal in this court. In my judgment, perhaps the most important issue in the case (the need for a ramp to enable the appellant to gain access to the property through the front door) could and should have been capable of resolution on the ground. That viewpoint is reinforced by paragraph 41 of the skeleton argument for the appellant in this court which states in terms that the appellant would most probably have accepted the accommodation had the offer contained any condition or undertaking to render it suitable.
As it is, however, I respectfully agree with Rimer LJ that it is the decision letter of 12 March 2007 which is the critical document, and as he has demonstrated, that letter makes no reference to the property being unsuitable because there is no ramp allowing the appellant to gain access to the property by the front door.
In my judgment, this matter could have been corrected by Ealing in a number of ways. For example Ealing could have acknowledged on the review that the property was indeed unsuitable without a ramp to the front door, and made a fresh offer, this time giving an undertaking or some other enforceable assurance (I respectfully endorse Rimer LJ’s phrase “certain, binding and enforceable”) that a ramp would be provided. By contrast, however, Ealing’s review letter of 13 July 2007 repeats in terms its view that the property “was and continues to be a suitable offer of accommodation”, and only addresses the question of the ramp with the assertion: “It was confirmed with the owner that a ramp would be fitted”. For the reasons Rimer LJ has given this is simply not enough.
In my judgment, therefore, the message of this case is that however pressed local authority housing officers may be, they must address their minds to the real issues in any given case, and where simple alterations are required to render a property suitable, those issues must be addressed with clarity and certainty in the decision letters they write.
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