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05/07/2010

Reviews of Suitability and Discharge of Duty

Ravichandran & Anor v London Borough of Lewisham [2010] EWCA Civ 755

Or Omar v Birmingham City Council [2007] EWCA Civ 610 revisted. This was the Court of Appeal hearing of a second appeal from a s.204 Housing Act 1996 appeal at the County Court on Lewisham’s discharge of duty under s.193 Housing Act 1996. it is a significant decision on the nature and extent of s.202 reviews of offers of accommodation under s.193 and of discharge of duty. The Court sets out guidelines on this issue.

Briefly, the facts were that Lewisham owed Mr & Mrs R the full housing duty following their homeless application. Eventually, they were offered a 3 bed flat as a ‘final offer’. The offer letter stated that:

The Council is satisfied that this accommodation is suitable and it is reasonable for you to accept this offer. If you do not take up this offer of housing the council will no longer have a duty to provide you with any accommodation. We will then discharge our duty (to house you) under s.193(7) Housing Act 1996. We will terminate any temporary accommodation and you will have to make your own arrangements for housing.
You have a right to a review based on the suitability of this offer. This request must be made within 21 days of this offer

Mr & Mrs R viewed the property with one of Lewisham’s case workers. They did not consider that the property suitable. A form was filled in giving medical reasons for their refusal, based on asthma and physical issues for their children. Lewisham treated this as a s.202 review request. The review considered the medicial reasons and concluded that the property was both reasonable and suitable. The review letter stated that:

As a result of my decision my Council will shortly be formally writing to you to discharge its duty to you. My Council will also be commencing action to recover your present temporary accommodation and you should therefore begin looking for alternative accommodation.

A couple of months later, a letter purporting to discharge duty under s.193(7) Housing Act 1996 was sent by Lewisham, on the grounds that the offer was suitable. This also stated that there was a right to review of the decision.

R found a solicitor, who sent a pretty hopeless letter, which did however raise that they had been subject to racial abuse and been spat by a neighbour on viewing the property. Lewisham responded, purportedly as a s.202 review, restating the decision of the review of suitability and making no mention of the allegations of racial abuse.

R found another (very competent) solicitor who sent a further letter complaining that s.202 review was defective as it did not address the issue of racial abuse. Following further submissions were made, which pointed out that Mrs R had mentioned the abuse at the meeting at the property with Lewisham’s case worker.

Lewisham sent a s.202 review decision which stated that all issues of suitability had been dealt with in the first s.202 review and which did not address the racial abuse beyond mentioning that submissions had been made on that. The covering email stated:

You will see that I have not address (sic) several of your representations in full because in my view it is not necessary. This review is on the discharge of duty address whether the offer, including the procedure leading up it was such to cause the duty to cease.
The majority of your representations focus on suitability which is not the issue that we are dealing with in this review. The authority had already conducted a review on suitability it was completed by Mr Gomez and the decision was that the Council were satisfied it was a reasonable and suitable offer for your client.

And the review letter stated that the reviewer was “satisfied that the provisions of sections 193(5) as well as 193(7) were met”.

R appealed by way of s.204 to the County Court on the basis that the last s.202 of the decision to discharge duty did not address the issue of suitability and whether it was reasonable for R to refuse the offer.

Judge Faber dismissed the appellants’ appeal from Lewisham’s May 2009 review decision pursuant to section 204 of the 1996 Act on the following grounds. She held that Mr Georgiou was not obliged in May 2009 to consider the issue of suitability again, that decision having already been taken and reviewed in October 2008, and there having been no appeal under section 204 from that review. She then held that, although the issue of whether or not it was reasonable to accept Lewisham’s offer did fall to be considered in the May 2009 review pursuant to section 202(1)(b) as one of the requirements for an offer within section 193(7), Lewisham was entitled by virtue of the decision of the Court of Appeal in Omar v Birmingham City Council [2007] EWCA Civ 610, [2007] JLR 43 to rely instead on section 193(5), which did not involve that requirement for an offer within that subsection.

So, there was no requirement to consider whether it was ‘reasonable for [R] to accept’, simply whether the Council considered the property suitable. As a reminder, s.193(5) has only a ‘suitable’ test, while s.193(7F) has a two part test – suitable and ‘reasonable to accept’. The latter is a subjective test – reasonable for this person in their position to accept. Omar, surprisingly, had apparently held that an offer of temporary Part VII or indeed permanent Part VI accommodation could fall under 193(5) as well as 193(7F) and so the only requirement to be met was that the LA was satisfied as to suitability.

R appealed on the grounds that
(1) the May 2009 review was flawed because
(a) Lewisham was not entitled to rely on section 193(5), Lewisham’s only offer having been made pursuant to section 193(7) and the review being a review of a decision in relation to section 193(7);
(b) the review had failed to take into account, in relation to both the suitability and “reasonable to accept” issues under section 193(7), that the appellants had been subjected to racial abuse when they had first viewed Wakefield House; and
(c) Mr Georgiou had wrongly concluded that he was not required to have regard to that incident of racial abuse in relation to suitability; and
(2) the Judge misapplied the decision in Omar v Birmingham CC.

Lewisham responded that:
(1) the review decision of 10 October 2008, on a proper reading, included a decision that it would have been reasonable for the appellants to have accepted the offer of 13th August 2008; alternatively,
(2) if the reasonableness of accepting the offer had been separately addressed in the decision of 10th October 2008, it could have made no difference to the outcome of the review.

Held:
The distinction between s.193(5) and 193(7) was an important one, precisely because s.193(7) required the dual test of suitable and reasonable to accept. Griffiths v St Helens MBC [2006] EWCA Civ 160, Slater v Lewisham LBC [2006] EWCA Civ 394, [2006] HLR 37, Tower Hamlets LBC v Rahanara Begum [2005] EWCA Civ 116 considered.

Omar v Birmingham CC was not a precedent for the “proposition that, where an authority makes an offer of permanent accommodation expressly under section 193(7), but fails to satisfy the reasonableness requirement, it can treat itself as discharged from all duty under section 193 by unilaterally treating the offer and the refusal as made under section 193(5)”. Omar is to be limited to its own specific facts – where the offer did not specifically state whether it was made under s.193(5) or 193(7). In any event, the satisfaction of the reasonableness requirement was not in issue in Omar.

The requirements of s.193(5) apply where the offer is one of temporary accommodation. Where the offer is of permanent accommodation under s.193(7) generally, the reasonableness requirements apply. Lewisham’s offer was celarly and expressed to be under s.193(7).

Lewisham’s submissions that the amendments to Housing Act 1996 by the 2002 Act meant that the only decision capable of s.202 review was the decision that an offer was reasonable and suitable, not the decision to discharge duty, which was now automatic, were not correct. Warsame v Hounslow LBC [2000] 1 WLR 696 is still applicable after the amendments. In this case, there was a clear further decision to discharge duty.

It was submitted by Mr Arden that this produced an absurd result since it would mean that it would never be possible for suitability, reasonableness and discharge to be reviewed at the same time. We do not accept that criticism. If, following the making of the offer by Lewisham or at any event once there had been a refusal of the offer, there had been a review at the same time of both the suitability and “reasonable to accept” requirements as well as the decision prospectively to discharge by the making of the offer (or, if after refusal, that the conditions for discharge had been satisfied), they could have been dealt with at the same time, and by virtue of section 202(2) would not then be open for further review. The problem in the present case is that until January 2009 there never was an invitation for a review of the “reasonable to accept” aspect or of the prospective discharge of duty by the making of the offer or of the satisfaction of the conditions for discharge under section 193(7) and no such review was in fact carried out until then. The only review was of suitability under section 202(1)(f) (as amended) and not, as indicated in Warsame, under section 202(1)(b) both as to the discharge of Lewisham’s duty and the “reasonable to accept” issue.

On the facts, there had been no review by Lewisham of whether the property was reasonable for R to accept prior to the raising of the racial abuse. Lewisham’s statement that it was ‘a reasonable offer’ was not the same as a review of the ‘reasonable to accept’ requirement. After the racial abuse was raised, there had been no further review of whether it was reasonable to accept, but the racial abuse incident should have bee considered as it took place prior to the date of the refusal of the offer, even if only raised later.

Appeal allowed.

The Court sets out principles for reviews of offers under s.193(5) and s.193(7):

(1) Section 193(5) is concerned with offers of temporary accommodation to meet a local housing authority’s duty under Part VII of the 1996 Act. Section 193(7) is concerned with offers of permanent accommodation pursuant to the authority’s allocation scheme under Part VI of the 1996 Act.

(2) An authority making an offer of accommodation, the refusal of which it intends to rely upon in discharge of its duty under section 193(2), should always make clear to the applicant whether the offer is intended to be within section 193(5) or within section 193(7). Where the authority makes clear that the offer is intended to be within section 193(7), it cannot subsequently treat the offer, and any refusal of it, as made under section 193(5).

(3) In the case of an offer under section 193(7), section 193(7F) requires the authority to be satisfied that, in addition to the accommodation being suitable for the applicant, it would also be reasonable for the applicant to accept the offer. Although there is a significant area of overlap between the suitability of accommodation and the question whether it would be reasonable for the applicant to accept the accommodation, these are distinct and different requirements.

(4) The reasonableness requirement in section 193(7F) is not satisfied merely by the authority making an offer which it considers reasonable. What is required is an offer which it would be reasonable for the applicant to accept.

(5) The applicant is entitled to a review of the suitability requirement in section 193(7F) by virtue of section 202(1)(f) of the 1996 Act and of the reasonableness requirement in section 193(7F) by virtue of section 202(1)b). It is both possible and desirable for both requirements to be reviewed at the same time. The right to a review of both requirements, and the intention to review both at the same time, should be made clear to the applicant.

(6) The applicant is also entitled to a review of the decision of the authority as to the discharge of its duty under section 193(7) by virtue of section 202(1)(b). If the review takes place before refusal of the final offer of accommodation, it will strictly be a review of the intention that the offer will, on refusal, result in cessation of the authority’s duty. If the review takes place after the refusal of accommodation, it will be a review of the authority’s confirmation that its duty has ceased by virtue of satisfaction of the statutory pre-conditions for such cessation. The applicant should be informed of the right to such review.

(7) It is desirable that such a review of the decision of the authority as to the discharge of its duty under section 193(7) takes place at the same time as the review of the suitability requirement and the reasonableness requirement in section 193(7F). If it is intended that it will take place at the same time, the applicant should be so informed.

(8) If the review of the suitability requirement and the reasonableness requirement and the decision of the authority as to the discharge of its duty under section 193(7) take place at the same time, by virtue of section 202(2) there will be no further right to review of the decisions on any of those matters. If, however, the decision of the authority as to the discharge of its duty does not take place at the same time as either the review of the suitability requirement or the reasonableness requirement, matters relevant to those requirements which were not taken into account on the earlier review must be taken into account by the authority on the decision review if the matters existed prior to the refusal of the offer, even though they were not raised by the applicant at the earlier review.

Comment

While the restriction of Omar to its own facts is very welcome, the manner in which it is done is rather odd. While the offer letter in Omar did not state it was an offer under s.193(7), the primnary finding in the case was that it was a valid offer under s.193(7) regardless, so the application of s.193(5) remains odd. There is a discussion of whether the statements on s.193(5) in Omar were obiter or not, but that is not decided, which is a pity. Still, from the limitation of Omar and the guidlines given, it is clear that the Omar ‘loophole’ for avoiding a consideration of ‘reasonable to accept’ is closed for offers of permanent accommodation.

I recently had an email suggesting that a s.202 review of suitability and reasonableness was not available for a ‘qualifying offer’ of private accommodation under s.193(7B), just that the LA had to be satisfied the offer was reasonable and suitable. The guidelines here appear to state that a review is available for any decision as to suitability and reasonableness under s.193(7F), which would catch a qualifying offer, I think.

The guidelines are useful, but the Court’s view that the requirements for the availability of a review both of the decision that an offer is ‘reasonable and suitable’ and also of the decision to discharge duty does leave some complications. Consider (6) of the guidelines. How can the tenant apply for a s.202 review of a decision by the LA that it intends to discharge duty if the offer is refused, where the offer hasn’t yet been refused? But this appears to be the import of the guidelines where the LA does not state that the review of ‘reasonable and suitable’ and of discharge will happen at the same time, as per (7).

Overall then, a good thing and some needed clarity, but I suspect there are a few problems for the future in there.

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.

4 Comments

  1. simply wondered

    i must say i was amused by HHJ Faber’s plaintive (as opposed to plaintiff) cry that only 3 hours were allowed for her to hear it in the CC and there was no order for counsel to submit authorities in advance. her line was that if she got it wrong, too bad and the court of appeal would just have to sort it (seems fair when a judge gets an absolute hospital pass like that – you’d think she could sue someone: cue lawyers4u advert ‘have you been handed a ridiculously complex case at work with inadequate prep time and no authorities?? call lawyers4u!’*disclaimer: does not apply in court of session*).

    the court of appeal said: ‘We do not know whether there have been problems with listing at the Central London County Court’ – sweet jesus; they must be the only ones who don’t then!

    Reply
  2. Stephen O'Neill

    I do wonder about the courts analysis of Warsame v Hounslow LBC [2000] at para [30]. The language of s.202(1)(b) is apt to apply not only to a decision that it no longer owed a duty – because the occurrence of some event had caused the duty to cease – but also to a decision as to whether such a material event had indeed occurred. But in Warsame the court was concerned with an actual decision of the local authority -namely that after accommodation had been provided for two years (as the duty then was) that it would not be continued. In Hounslows’ view, the intervening offer of secure accommodation meant that there was no obligation to provide temporary accommodation for a further two year period. That was a decision reviewable under s.202.

    Contrast that with the position, as Mr Arden pointed out, under the amended s.193. The two year duty has been abolished. The authority does not need to decide whether to extend the two year tenancy period. The duty continues until one of the happenings set out in s.193. It does not always continue until the authority decides that certain events have brought the duty to an end and then offer the applicant a review of that decision. What if an applicant ceases to occupy temporary accommodation of his own accord but the local housing authority does not find out about it for several weeks. Does the duty cease when the authority finds out the applicant has left or at some earlier time when he actually ceased to occupy the accommodation. A set of facts do not cease to exist because the authority did not know about them.

    The obligation under s.193(5) to inform an applicant of the possible consequences of refusing a property, and the right to request a review, is completely different to the duty under s.193(7). In subsection (5) there is a duty to notify the applicant that they consider themselves to be discharged from their obligations. There is no identical notification requirement in subsection (7). If the court in the present case was not satisfied that there was an offer under s.193(5) because of the wording of the offer letter, then how can it be that there is a review of the authority’s decision that it considers itself to be absolved from making any further offers, when that requirement does not exist in s.193(7).

    If the authority notifies an applicant that it considers itself to be free from its Part VII duties then that decision is reviewable. Plainly a decision has been made. But if the offer is under s.193(7) then the duty only continues until one of the happenings set out. It is not a decision the authority makes. As I have said, a set of facts do not cease to exist because the authority did not know about them. Or to put it another way, observation does not affect outcome.

    Reply
    • NL

      Stephen, it is surely not just the case that someone has to hear the tree fall, rather that someone has to decide that what they heard was a falling tree. In short, it is not just a question of fact, it is a decision based upon an assessment of the facts. That assessment may or may not be accurate, or may or may not be based upon sufficient facts. Thus s.202 review of the discharge of duty – the issue is the LA’s assessment that the combination of facts required by s.193(6) or (7) have been made out.

      The outcome of an offer under s.193(7) is not necessarily a simple or straightforward situation. When would the duty end, in your view? After s.202 review of the suitable/reasonable decision? After s.204 appeal of that review? When does the ‘happening set out’ happen? And how does the assessment that the ‘happening set out’ has happened fail to be a decision under s.107 for the purposes of s.202(1)(b)?

      That said, you make a fair point on the distinction in the notification provisions of 193(5) and 193(7). But there is surely a distinction between ‘ceasing to be subject to a duty’ and ending that duty. An LA could accept a continuing duty, even if not subject to it.

      Reply
  3. Alex Kershaw-Moore

    I have problems with this decision insofar as the CA has declared that there is a right to request review of the reasonable to accept element under s.202(1)(b). I really don’t see how and I don’t find anywhere in the judgment that explains this. The Court seem to be saying that if an offer is made under s.193(7) it must be suitable and reasonable to accept and, if so, the Council’s duty to house will be discharged. Therefore, because it culminates in a discharged duty – and I have no problem that the decision to discharge a duty should be reviewable under s.202(1)(b) – the decision as to whether it is reasonable for the applicant to accept should also fall under s.202(1)(b).

    Surely this is nonsense! If that were the case, why doesn’t the review of suitability also fall under s.202(1)(b)? The fact is, of course, it doesn’t. It has its own ground for review which, if reasonableness is to be subject to review, should include that element of reasonable to accept. s.202(1)(b) has nothing to do with whether offers are reasonable or suitable. If such offers led to a decision to discharge, I can understand that any review of that discharge will need to consider the offer grounds, suitability and reasonableness. But I see no logic in saying that reasonableness is subject to review, by itself, under s.202(1)(b).

    Perhaps I’m missing something?

    Reply

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