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.
Its often the case that when accommodation is offered works shall still be required to make it suitable. And with good reason. No point in going to all the trouble and expense of the necessary alterations before the applicant has indicated they wish to take up the offer.
On first reading this case one can’t help but be as baffled as the judges as to how Ealing failed to address the lack of the ramp at any time before the review decision. The apparent admission by counsel for the appellant (detailed at para 48 of the judgment) leads me to suspect all parties might have possibly proceeded on an assumption throughout the whole offer process that the owner of the accommodation would put in a ramp at some point, if only because of the obviousness of the issue. I guess we’ll never know.
One hesitates to be too critical of housing officers. However, speaking generally, it would surely be a woeful oversight for any LA to offer accommodation that requires works without taking the elementary step of setting out in the offer letter formally to the applicant precisely what adaptations it considers are required to meet their needs. Or, at the very least, asking the applicant to sign to confirm that a discussion of proposals x, y and z has taken place – perhaps when viewing the premises, when all parties can more easily discuss adaptations.
In the absence of such procedural precautions, it could hardly be surprising if a certain proportion of those applicants requiring adapted properties pursue an appeal, arguing that pertinent issues remained unresolved and that, in the circumstances, it was not reasonable for them to accept the offer, citing Rimer LJ’s remark that proposed adaptations ‘have to be the subject of assurances that the applicant could fairly regard as certain, binding and enforceable’.
In addition to Wall LJ’s concluding ‘message’ for housing officers about addressing one’s mind to the real issues in any given case and addressing issues with clarity and certainty in decision letters, perhaps the following should be added for good measure – don’t just satisfy yourself about your findings on an issue, DEMONSTRATE to the applicant (and any district judge that might subsequently read your letter) that you have.
Its not really rocket science is it?
@PP: I think it wasn’t just the lack of discussion of essential adaptations prior to review, but the vagueness of who was to do what and when even in the review decision that concerned the Court, but the absence of any discussion pre decision was fatal to Ealing. Not sure about the ‘admission’. Whether the owner of the property had said he would put in a ramp during the inspection is pretty much answered by the argument at para 41 – it was Ealing’s assurance to make.
I absolutely agree that this isn’t rocket science. If a property will only be suitable after adaptations, then there should be clarity at an early stage about what adaptations will be carried out and this should be made clear to the prospective tenant. Given that the tenants will often be amongst the most vulnerable, Rimer LJ’s comment that the assurance should be enforceable makes sense.
Yup, it isn’t rocket science but, at the same time, this case adds as a corrective to other cases where the High Court and CA has been really rather lenient on poor decision/review letters written by hard-pressed officers under heavy time constraints. Seen in that context, Wall LJ’s comments are quite interesting and potentially useful.
@NL – I agree it wasn’t just the fact that the crucial adaptation (the front entrance ramp) wasn’t addressed in the decision and renewed offer letter dated 12 March, but the lack of a finding by the review officer as to whether the agreement to do the necessary adaptation pre-dated the 12 March letter, and the consequent irrationality of the conclusion that the accommodation was suitable (para 51).
As to precisely who was to undertake the adaptation or make the assurance, this is very relevant but surely not critical. If the applicant had been informed that the adaptation would be completed within a reasonable period and could reasonably be expected by the LA to rely on that assurance, it perhaps wouldn’t matter who did it. See Rimer’s comment at para 50: “If the owner had then given such an assurance, I am not convinced by Mr Jacob’s submission that it would have been a thing writ in water, on the basis that any assurance had to come from Ealing”.
@Dave – Yes, a very helpful judgment. I’ve come across several LAs that are downright sloppy in recording the communication of agreed adaptations to applicants BEFORE they purport to discharge duty, as evidenced when you receive a copy of the file and there’s no record, whether in the form of a letter or file note.