Once someone is in temporary accommodation, following an acceptance of the full housing duty to a homeless person by the local authority, what happens when that temporary accommodation becomes unreasonable for the household to continue to occupy, but alternative temporary accommodation is refused by the tenant?
Muse v London Borough of Brent [2008] EWCA Civ 1447 was an appeal arising from LB Brent’s decision to discharge duty under s.193 HA 1996 when Mrs Muse refused alternative accommodation offered when her current temporary accommodation (at Press House!) became overcrowded.
Mrs Muse was successful at s.204 appeal, arguing that s.193(5) did not apply. S.193(5) provides:
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 and of his right to request a review of the suitability of the accommodation, 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.
Mrs Muse argued that this did not apply where the person was not homeless and she had an assured shorthold of the Press House flat. This was accepted by the Court. Brent had also announced, in their offer and discharge letters, that they would ‘instruct the housing association [the direct landlord] to seek possession’. This turned out to be an error. However, Mrs Muse’s housing benefit was paid at higher rate as a person in temporary accommodation than as ‘just’ a tenant, so rent arrears would accrue quickly, as the rent was at a ‘temporary accomodation’ level. (This shows how ludicrous the charges made for temporary accommodation are – particularly when, as here, it is actually an assured shorthold tenancy! Stadium Housing again…)
Brent appealed to the Court of Appeal. Brent argued that
1) Once a duty arises, it continues until it ceases. It does not go into abeyance or become dormant. If the applicant is in temporary accommodation she can at any time be asked by the housing authority, in this case, Brent, to move to other accommodation. If the person to whom the duty is owed is occupying accommodation belonging to a private landlord, it follows that the housing authority can ask the private landlord to give her notice seeking possession if it wishes her to vacate the premises. This is important for policy reasons. Unless Wednesbury unreasonable, Brent can move those in temporary accommodation.
2) when it became aware that Mrs Muse was in unsuitable accommodation, it became obliged to offer her suitable accommodation and thus its duty would cease if it made her an offer complying with s 193(5), which she refused.
Mrs Muse made similar submissions as before.
Held: R (Awua) v Brent London Borough Council [1996] AC 55 suggests that where temporary accommodation is unreasonable for the person to remain in, they again become homeless. (No submissions were made on Auwa). So here a fresh duty arose when Mrs Muse’s household became overcrowded. As there is no requirement for an application as homeless to be made in particular form, the fresh duty arose when it was clear to Brent that Mrs Muse was overcrowded. Alternatively, the duty was never fully discharged in law, and arose again once the temporary accommodation became unreasonable to remain in.
40 On either basis, Brent was obliged to, and did, offer alternative suitable accommodation. Brent complied with s 193(5). Accordingly, the offer was on terms that Brent’s housing duty would be discharged if Mrs Muse declined to accept the alternative accommodation. If Miss Roberts’ submission on s 193(5) were correct, there would be an extraordinary internal inconsistency in the position in law of somebody like Mrs Muse. That person would be in a position to say that she was homeless and that Brent owed her a full housing duty, but that she was not homeless at the point in time when she made an application for transfer. An interpretation of s 193 that does not produce this basic inconsistency is clearly preferable.
41 The result of this conclusion on s 193(5) for Mrs Muse is severe because it means that Brent no longer owes her a full housing duty. It is, therefore, essential to consider whether the judge was correct on his alternative reasoning (unfairness). Mr Carter in opening his appeal submits that Mrs Muse was always aware that she was accommodated on a temporary basis. He further submits Brent followed the statutory safeguards which were required by Parliament and which Parliament clearly considered to be adequate. Mrs Muse was an assured shorthold tenant and therefore had no long-term security. She and those representing her had in any event consistently maintained that 42 Press House was unsuitable for her. Accordingly, Brent would have been acting unlawfully if it had not found accommodation which was suitable.
The subsiduary argument on unfairness was considered. Mrs Muse submitted she should have been given a full explanation of what Brent were doing once they had received the transfer request.
Held:
The type of notice for which [Mrs Muse] contends is not one required by section 184. Mrs Muse suffered no prejudice from any non-compliance with s 184. (Moreover, any non-compliance with s 184 could not affect Brent’s obligation to provide her with suitable accommodation, or the validity of the later offer of accommodation in fulfillment of that duty). It is a reasonable inference from the correspondence and from the attempt at rehousing which did not go ahead that Mrs Muse knew that Brent accepted that her existing accommodation was unsuitable for her, and that that was why it was trying to rehouse her. Mrs Muse was also, to the knowledge of Brent, advised by solicitors, and they could reasonably be expected to advise her fully on the legal situation. Accordingly, in my judgment, Brent was not in fairness obliged to offer her the choice of moving to alternative accommodation or staying at her existing accommodation.
On waiver: This had not formed part of the case below, and while Mrs Muse could possibly have waived the performance by Brent of its duty, her household were also affected. the Court was not prepared to find a waiver had been made.
Appeal allowed, but on Brent’s letters to Mrs Muse stating that the Housing Association would be instructed to pursue possession:
I wish to make some observations about the passage in the letter of 5 October 2006 which I set out in paragraph 17 above. Mr Carter accepts that this statement was misleading. He accepted that Brent had no legal right to instruct the landlord to obtain a court order for possession. He informs us that all Brent did in practice was to inform the landlord that the housing duty had been discharged and that the housing benefit would therefore be paid a lower rate. The fact however, is that this statement was made. I am surprised to see a public authority make this sort of incorrect statement. Of its nature, it was bound to cause distress since it would have led the tenant to believe that he or she would shortly be homeless and on the street. It was therefore a very serious statement to make. It is properly accepted that it was incorrect. A person in Mrs Muse’s position is a private law tenant of a housing association and it would be for the housing association to consider its position. It is not correct for Brent to suggest that it has any right to instruct the association to attain a court order for possession. I hope that housing authorities will take note of these observations, and that these statements will not be repeated in future.
Well, quite.