12/06/2007

Housing Duty – stating the obvious

For once, Birmingham was on the winning side of an entirely predictable Court of Appeal judgment on homelessness law. Omar -v- Birmingham City Council 2007. (7 June 2007. Times Report. Not yet freely available elsewhere)

Birmingham had discharged duty to the appellant after he refused an offer of permanent accommodation, which was found to be suitable on review. Omar appealed on the basis that the offer letter had stated that it was ‘a final offer’ and that this did not comply with the requirements of s.193(7) Housing Act 1996, which states

(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).

The statement that this was ‘a final offer’ was contended not to state that this was an offer of accomodation under Part VI, and so not meet the requirements of (7). The Appeal to the County Court was dismissed and taken to the Court of Appeal.

The Court of Appeal dismissed the appeal, holding that the explict reference to a final offer could only mean an offer under Part VI. The terms of (7) were mandatory, but there was no need to rigidly follow a form of words if the point was conveyed adequately. Here, the addition of words to the effect that this was an offer under Part VI would not add anything useful or necessary for the appellant’s understanding.

Apparently some County Court appeal judgments had gone the other way, which is a surprise. What isn’t a surprise is the Court of Appeal verdict. To be honest, I’ve never seen any client who didn’t understand they were only getting the one offer and that this would be the end of it. What the clients do get very confused about is what constitutes ‘suitable’, usually being wildly over-optimistic.

In any case, the Court apparently adds for good measure, the appellant’s refusal also fell under s.193(5):

(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, 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 rolling together of s.193(5) and (7) here is interesting. The way it is done appears to mean that (7) is more or less irrelevant if (5) is to apply to any offer, whether temporary or permanent accommodation (a Part VI offer). If so, this is slightly worrying, because (5) only has a test of ‘suitable’, where (7F) gives a two part test – ‘suitable’ and ‘reasonable for him to accept’. It is entirely possible for an offer to be suitable but not ‘reasonable to accept’, as this latter is a subjective test (Slater v LB Lewisham (2006) [2006] EWCA Civ 394). I’m awaiting an approved judgment to see about this, because I’m not sure that (5) should apply to Part VI offers of permanent tenancy.

Nearly Legal’s sage words to anyone facing their one offer are take the offer and request a review of suitability at the same time, thus minimising the risk of ending with nothing. There has to be a very significant problem for an offer not to be suitable, on the order of being placed near to a previous abuser, or at a virtually impossible distance from medical support structures, for instance. Not liking the layout of the bathroom or the view from the front window won’t do (and yes, I have heard those put forward).

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

14 Comments

  1. Craig Keenan

    Omar -v- BCC is one of my cases and I feel that you interpretation is a little narrow. I am unsure what you mean by “entirely predictatble” but I will set out the stall for you to decide now what you think.

    The Court of Appeal judgment in Omar conflicts directly with Slater v Lewisham [2006] EWCA Civ 394 and possibly conflicts with the (as yet) unreported recent case of Ahmed v Leicester City Council, 27 June 2007, decided after Omar but with no reference to it whatsoever. It is my view that the matter now requires judicial clarification. In Omar, the decision directs not only that section 193 (7A) HA 1996 does not need to be strictly followed (although this was not a unanimous conclusion as per the dissenting comments of Lloyd LJ) but that in any case:–

    (i) A person being made a final offer of accommodation under Part VI is potentially deprived of the protection of section 193 (7F) HA 1996 which requires the authority to look both at suitability and reasonableness of the refusal when considering the refusal of the offer of accommodation by an applicant (see Slater v LB Lewisham [2006] EWCA Civ 394).

    (ii) The only category of applicant who can unequivocally rely on section 193 (7F) HA 1996 is one who is made a qualifying offer of an assured shorthold tenant. The authority can use section 193 (5) HA 1996 effectively as an insurance policy. Section 193 (7) HA 1996 is effectively rendered otiose for a person who is made a final offer of Part VI accommodation. As indicated in our original application for an extension of funding, the Court of Appeal decision in Omar was a 2:1 majority, that the terms of a final offer did not have to slavishly comply with the requirements of section 193 (7A) HA 1996 for a housing authority to be able to rely on section 193 (7) HA 1996 to assert cessation of duty by refusal of an offer of accommodation.

    This cannot be correct. The amendments to section 193 of the Housing Act 1996 made by the Homelessness Act 2002 sought to provide greater protection and greater choice to the homeless, not less. The effect of the judgement in Omar is to remove that choice and protection.

    It follows that if the CA judgement is correct, then a Local Authority can discharge its duty under section 193(5) Housing Act 1996 alone under which there is no requirement for an offer to be made in writing and no requirement for the Authority to indicate that the offer is a final offer. This clearly puts accepted homeless applicant in a significantly weaker position than before the judgement in Omar, something which the Government did not intend. Accordingly, if a Local Authority discharge their duty under section 193(5) Housing Act 1996, then that duty is absolutely and finally discharged without the authority needing to comply with any other parts of section 193(7) Housing Act 1996.

    Parliament makes the law and the courts interpret the law (stating the obvious perhaps). However in my view the court cannot remove the protection Parliament intended by such a broad brush approach; the effect of section 193(7) is now a complete mess and in my view it is clear that judicial clarification is required.
    Onwards and upwards…

    Craig Keenan
    Senior Housing Caseworker
    Community Law Partnership

    Reply
  2. contact

    Craig, lovely to see you here and thanks for the detailed comment.

    Can I start by pointing out that I was working off a combination of the Times report and the Lawtel report, neither of which gave sufficient detail. What I was referring to as ‘entirely predictable’ was the finding on the ‘rigid form of words’ of the final offer in relation to s.193(7)(A). That, by itself, still strikes me as unsurprising.

    However, as you can see above, the limited reports I saw also said enough to make me worried about the use of s.193(5) in the judgment. From that I drew tentative conclusions which are exactly along the lines of your comment – that s.193(5) can effectively be used in place of s.193(7), thereby removing the need for considering of (subjective) reasonableness of refusal. On that, I am very grateful for your detailed account and I agree entirely with your assessment. I think that I could not actually believe that the limited reports I saw could actually be right in the use of s.193(5), which was why I wanted to wait for a full text of the judgment.

    Reply
  3. Craig Keenan

    Watch this space. Further funding for petition to the House of Lords was refused (surprise! er, no) and then refused again on appeal after the matter went to an Independent Adjudicator. The decision of the Adjudicator was – in my view – bizarre so I decided to see what the local LSC Caseworker thought and made further submissions. He agreed. We are now invited to make further representations to the LSC which I am busy completing at the moment. In a recent Bham s204 appeal, they submitted that the Omar overrules Slater v Lewisham and that a Council no longer has to consider whether it is reasonable for a homeless applicant to accept an offer of accommodation because they can now rely on section 193 (5) Housing Act 1996 to discharge their duty. This is exactly what we feared following the Court of Appeal judgment in Omar and why (well I would say this I guess) it is important to try to bring it down.

    Craig

    Reply
  4. contact

    Craig,

    Very good luck with this. If Councils are starting to use Omar as authority for using s193(5) rather than s193(7)(in full) to discharge duty, it needs either a House of Lords hearing or a Court of Appeal clarification at the very least, pronto.

    Surely this is a broader public interest issue for LSC funding.

    Reply
  5. Craig Keenan

    More positive news in Mr Omar’s case which has risen like a Phoenix from the Ashes.

    The LSC agree we have a “robust” argument here and, while recommending further funding have found that there is no personal benefit to Mr Omar (who is now housed elsewhere – this was the position before the matter went to the CA for permission, let alone the final hearing). Accordingly, the question of whether it is in the wider public interest is yet to be determined; it has been referred to the Public Interest Advisory panel. Given that it affects every single homeless household, I say it does meet the public interest criteria!

    Aside from the wider public interest arguments, I say that the outcome of the Omar case has produced perverse and unintended consequences. As in my last post BCC have recently argued in the local County Court (on a s204 Appeal) that they can discharge using either section 193(5) or 193(7); in fact they made these submissions at a permission hearing for three of our other cases in the CA, thereby making it arguable. Permission was granted.

    Will keep you posted on any further developments. Until then a happy non-litigious Christmas to all.

    Reply
  6. Anon

    Hi,

    I am very interested in all the info that I have read above because I am about to find myself in a similar position. I am a single mother of two who has been in temporary accomodation for four years. The previos two offers made to me I refused and requested reviews these were found in my favour and I was placed back on the list to be rehoused. I have now been offered a property by a Housing association which the council nominated us for. The road on which the property is based is rife with drug dealers and addicts. The property has been vacant for a long time because no one will accept it for that reason. When I went for the viewing I saw men peeing on the front gate, a drug dealer offered me drugs and this was all before 12 noon. I then went back in the evening and saw many dealers being surrounded by people buying drugs and people openly taking drugs on the road. There are cameras there but because they have been doing it for years they know they will not be stopped. I even took footage of what I saw. They want me to move my two small cildren into this place. I refused it yesterday and have requested a review. I stated that I did not feel that the place was suitable for a family with small children and that it was not reasonable for me to accept it.

    What I have read above though has frightened me a bit because now youre saying that the reasonable test is not being used anymore because of the decsion in the Omar case?? Where does that put me and my kids? do you think they will chuck us out? Can anyone give me some advice???

    Reply
  7. contact

    Craig,

    Good to hear that there may be progress on an Omar appeal. I would have thought that a clear public interest argument can be made and that, assuming there is any rationality left at the LSC, the argument would achieve funding. This is crucial for every person in temporary accommodation under a s.184 duty. More worrying is that Birmingham (and possibly other councils) are seeking to use Omar in regard to suitability. The very best with the other CoA cases.

    I’ll do a fresh note on the blog today on this issue. It is important

    Anon,

    Firstly, there is no certainty at present that your Council will seek to rely on Omar. Secondly, if they do and it goes to appeal, it is very likely that the appeal can be stayed pending the outcome of either Omar in the House of Lords or a clarificatory case in the Court of Appeal. Thirdly, although I would need much more detail to be sure and offer proper advice, it sounds like you would have a potential argument under suitability, even if reasonableness wasn’t considered.

    Lastly and most importantly, find a housing solicitor, right away. You will need advice and assistance with the submissions to the review. Use the Community Legal Service search at the top right of this site.

    Reply
  8. LJ

    Hi Craig,

    I am struggling with this ‘Legalese’, but wondered if you are able to clarify a legaslative query for us, we have today been offered a confirmation of permanent housing, which does NOT state that it is a final offer, but continues to mention Homelessness Act 2002 s 193(7), new s 193(6A). The latter (6A), has not come up in any blogs I have read. My wife and I are concerned that the approach used by the Council is not dissimilar to a pressure salesman (in that we had to sign an acceptance form on viewing). It is also of great concern that we unfortunately find ourselves in a situation whereby we do not believe that the accomodation is suitable, yet declining it would render us, (including our 4 children) homeless, in a situation which I can only describe as coersion.

    We have not been afforded reasonable time to seek advice, as the acceptance/decline form requires to be signed by tomorrow (Wednesday), which I am at present refusing to sign until I have sought advice. I would very much welcome your comments on the above legislative acts.

    Many thanks

    LJ

    Reply
  9. Nearly Legal

    LJ

    Craig visits this blog – it’s my blog. I can’t give advice on your specific situation and certainly not without seeing the letters involved. This isn’t an advice blog.

    S.193(7)is the section that allows the Council to discharge housing duty if you refuse a suitable offer of accommodation. Any s.193(6A) is not, I think, yet in force.

    ‘Suitable’ is a difficult test. My general and usual advice to people in this situation is to sign up for the offered property but request a review of suitability at the same time. Otherwise the danger is that they end with nothing. I recommend that you get advice on the submissions to the suitability review.

    Councils are only under the legal obligation to offer (to homeless with s.184 duty accepted) one suitable property. So that is what they do. You may well feel coerced, but I’m afraid this is pretty widespread, as is asking for the acceptance form to be signed on viewing, or shortly afterwards.

    This post is full of legalese because it is a technical discussion of a court of appeal judgment, sorry. I appreciate this won’t make it the easiest thing for people looking for advice.

    Reply
  10. Craig Keenan

    Just to keep you updated, the Public Interest Advisory Panel considered Omar on tuesday this week and has agreed that there is a significant wider public interest. As I have previously posted, the LSC report to the Panel agreed that we have a “good” argument here. Accordingly we should be up and running with funding very soon and a petition to the Lords in due course. So, in a learning curve that is rather steep, I am currently wading through the “House of Lords Practice Directions Applicable to Civil Appeals”. I will keep the site advised of developments with Omar. Until then, I have injunctions to discharge. Toodle Pip.

    Reply
  11. contact

    Thanks Craig. Good luck.

    Reply
  12. The Dark One

    Can you please let me know what Section 193 (6A) is that you and Anon refer to? I’ve not heard of this particular section before.

    Reply
  13. Nearly Legal

    Dark one, I couldn’t find a new or prospective 193(6A), hence my non-answer above. Having had a quick look further, from context I think Anon’s Council had made a typo for 193(7A).

    Reply
  14. The Dark One

    Ahh, thanks! I thought I had never heard of it!

    Reply

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