Tag Archive for 'suitability'

Suitability and marital harmony

Published
by
NL
on 10 June 2008
in Housing law
. 2 Comments

Ahad v London Borough of Tower Hamlets [2008] EWCA Civ 606 was an application for permission to appeal from a s.204 appeal concerning a refusal of an offer of permanent accommodation. Tower Hamlets had discharged duty on the basis that the appellant had refused an offer of accommodation that was suitable and reasonable for him to occupy, s.173(7F).

The appellant, his wife and three children made up the household. Tower Hamlets had accepted a duty. The appellant was bidding under a Choice Based Letting scheme, made a bid on the property and was successful. After viewing the property with his wife, he refused the offer.

On s.202 review, Tower Hamlets Law Centre made submissions as follows:

We submit that in the event it would not be reasonable for our client to accept the offer. He himself has not had any objection to the property and was inclined to accept it. However, his wife is adamantly opposed to the property. She feels that it is too small for her family’s needs. She does not like the area where it is located as she has no family there and would not feel safe there. Mrs Begum [Mr Ahad's wife] indicated to our client that he could accept the property if he wished, but that she would not move to the property and neither would their three children. Mr Ahad thus believed that if he were to accept the property he and his wife would separate. Our client was therefore faced with the choice of either refusing the offer or his marriage breaking down.

In response, in the negative 202 decision, the council said:

…that Mr Ahad had not advised the council prior to or following the offer that he and his wife had differing opinions on what constituted suitable accommodation for him and, in any event, his having bid for a property, the council could only have accepted in good faith that he and his household wished to reside in the property. As he had applied to the council, it was appropriate for them to draw the inference that he acted on behalf of the whole family on bidding for the property, and the differences of opinion between him and his wife as to the type and location of the property was a domestic matter for them to discuss and reach a conclusion before making any bid.

At s.204 Appeal, the appellant argued that the Council had failed to take into account the fresh information at review concerning the likely effect on the appellant’s marriage. if it had considered them, it had failed to give adequate reasons.

Mr Ahad had, at all times, accepted that his wife’s objections were misplaced and unreasonable.

At first appeal, the County Court held that it was reasonable for the Council to expect such disputes to be resolved within the household:

The objections fell to be considered as primary objections to suitability and the reviewing officer was entitled to reject them as a reasonable basis for refusing the offer in the light of: (a) the lack of foundation for the wife’s objections; (b) the fact that the reviewing officer found that Mr Ahad was given particulars of the property and its location before bidding for it; (c) it was a choice-based bidding system; (d) the Authority was not concerned with matrimonial problems arising between the persons to be housed in a single household and the result of a dispute as to subjective matters of suitability; and (e) the Authority was not in a position to make findings of fact as to the legitimacy of Mr Ahad’s fears about the future of his marriage.

At renewed permission to appeal hearing, Lord Justice Lawrence Collins considered whether this case raised a point of principle or practice in relation to the two part test of s.193(7F) set out in Slater v London Borough of Lewisham [2006] EWCA Civ 394 and applied in Ahmed v Leicester City Council [2007] EWCA Civ 843. That test being both objective suitability for the applicant and a subjective test of whether it was reasonable for the applicant to accept the accommodation.

The Court held there was no point of principle or practice at issue. The Council had taken the ‘new’ facts into consideration and there was no flaw in the reasoning or process.

It is worth noting that the dual test of reasonable and suitable is upheld here, with no question of the subjective test not being required, as suggested by the Court of Appeal judgment in Omar v Birmingham.

Caravan sites and Tomlin orders

Published
by
NL
on 21 May 2008
in Housing law
. 1 Comment

A couple of interesting permission to appeal hearings have appeared on Bailii. Permission granted in both cases for Court of Appeal hearing.

Lee v Rhondda Cynon Taff County Borough Council [2008] EWCA Civ 523 concerns whether a Local Authority should have considered the acquisition of a plot for a caravan in the context of a review of an offer of ’suitable’ accommodation following assumption of housing duty to a homeless Romany Gypsy.

City of Westminster v Man [2008] EWCA Civ 532 arose out of a claim for unpaid service charges. It concerns whether a Tomlin Order, staying the proceedings, means that an earlier order for costs in the proceedings, not mentioned in the Tomlin Schedule, is unenforceable due to the stay. Not necessarily of interest to many housing people, but we use Tomlins a lot in disrepair and nuisance claims, so this is worth keeping an eye on.

Fair and commonsense reviews

Published
by
NL
on 1 May 2008
in Housing law
. 1 Comment

So, then

Omar v City of Westminster [2008] EWCA Civ 421

Briefly, the facts were that Mr Omar made a homeless application to Westminster. His household consisted of his wife and his infant son who had just been born and was, at the time of the application was under special care at Kensington & Chelsea hospital. The son was discharged on 28 December 2006. Westminster accepted a duty on 15 January. The family were given temporary accommodation in a hotel. On 19 February Westminster offered a two bed property in Walthamstow E17 for temporary accommodation under s.193 HA 1996. Mr Omar refused the offer, stating that his infant son had a further hospital appointment at Kensington & Chelsea. Mr Omar provided a letter from January 2007 confirming post discharge weekly appointments and another letter confirming an appointment on 21 February.

Westminster wrote on 23 Feb 2007 discharging duty to accommodate under s.193(3) and 193(5). A review was requested of both suitability of the offer and decision to discharge on the basis that Mr Omar relied on the medical support in the Westminster area and family support in the area. Further medicial information was received from the hospital on 4 May 2007 with a current prognosis. Westminster’s review was negative. The decision letter mixed past and present tenses in addressing the situation, but takes as a main basis the report of 4 May 2007 from Kensington and Chelsea Hospital on the then current care and prognosis for the baby.

At s.204 Appeal, the Judge found that:

  1. As to the suitability of the property, the reviewer was entitled to consider the position at the review date - subsequent to the first decision.
  2. As to the decision to discharge duty, the review had to be limited to the facts at the date of the decision, but that in this review, the reviewer had so limited themselves.
  3. There was, in any case, no point in sending the matter back for further review as the same decision was bound to be reached.

The Court of Appeal, in LJ Waller’s sole judgment, reversed this and directed the matter back for further review.

The Court take an avowedly commonsense appproach:

It seems to me that the question of what facts may be taken into account on the review will depend on what is being reviewed and must, unless there is some compelling legislative provision which dictates to the contrary, be dictated by what fairness requires.(25)

Thus where the decision-making process effectively continues up to the end of the review, it is fair to consider the facts as they are at the date of the review. But when, as here, the decision is final at a certain date, and, as per Osseily v Westminster City Council [2007] EWCA 1108, duty is discharged at that time, not somehow postponed until the end of the review; then it is the facts at the date of the initial decision which are at issue (even if what those facts are comes to light later on - it is fine for the reviewer to find things out later about that point).

Having set out its commonsense goal, the judgment performs some remarkable acrobatics to show that this view is either compatible with, or distinguishable from previous cases: Mohamed v Hammersmith and Fulham LBC [2002] 1 AC 547; Sahardid v Camden LBC [2005] HLR page 11; and in finding support in Robinson v Hammersmith and Fulham LBC [2006] 1 WLR 3295.

These paras, 27-31 are well worth reading as a masterpiece of teleological analysis.

In this case, the County Court Judge was:

  • wrong to separate suitability of accommodation and the discharge of duty decision
  • wrong to hold that on suitability facts up to the date of review should be considered, because duty had already been discharged
  • wrong on the review decision letter, which was clearly fundamentally based on the later information of 4 May, so the argument that no other decision was possible on the facts fell.

The general principle for any review under Housing Act 1996 (suitability of accommodation, housing duty, suitability of offer of permanent accommodation, presumably) is, as far as I can see, as follows:

The ‘cut off date’ for what facts should be properly considered by the reviewer depends on what is being reviewed.

Where the review is effectively a continuation of the decision-making process, the facts continue to be relevant up to the date of the review. An example would be a review of suitability requested by someone who had at the same time accepted the property and is in occupation.

Where the decision is a final one, no facts relating to a point after that date are relevant to the review. So a discharge of duty or, as far as I can see, where an offered property is no longer available after refusal (but there has been no discharge of duty), that date of first decision is the cut off point for relevant facts on review. But remember, this is the date to which the facts relate, not the facts known to the decision-maker on that date. Any facts that subsequently come to light that concern that date are relevant to the review.

Report to come…

Published
by
NL
on 1 May 2008
in Housing law
. 1 Comment

I previously mentioned a Garden Court report on Omar v Westminster. There is also a brief Times report here.

The full judgment is now out on Bailii and is interesting.

Omar v City of Westminster [2008] EWCA Civ 421 (03 March 2008) on reviewing suitability of s.193 temporary accommodation.

I’ll get to it tomorrow (or later today, now).