01/05/2008

Fair and commonsense reviews

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.

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.

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