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30/11/2010

Private Sector Accommodation and Part 7

Hanton-Rhouila v Westminster City Council [2010] EWCA Civ 1334

This was a second appeal from a s.204 Housing Act 1996 appeal which had been dismissed by a Circuit Judge. Mrs Rhoulia had applied as homeless to Westminster and the appeal was of Westminster’s rejection of her application on the grounds that she was not homeless.

The basic facts were that Mrs Rhoulia had applied as homeless after being asked to leave by her sister in law, with whom she and her husband had lived since 2007. Mrs R suffered from cancer, kidney failure and severe depression. On about 28 April 2009, Westminster accepted the application, began enquiries, and offered temporary accommodation in a B&B, which proved not to be suitable. No other temporary accommodation was found.

After Mrs R’s first approach, in March 2009, Westminster had placed Mrs R on the Home Finders Payment Scheme, which was a form of discretionary deposit payment scheme for a 12 month minimum assured shorthold tenancy in the private sector. Following the B&B not proving suitable, and in the absence of other temporary accommodation, Mrs R continued to look at private tenancies under the HFP scheme. On 6 May 2009, Mrs R signed an agreement for a 12 month AST of a property.

On the same day, and without completing its enquiries under s.184, Westminster made a s.184 decision and rejected her application on the ground that she was not homeless under s.175 Housing Act 1996, as she had accommodation available to her – the new tenancy. Westminster had paid £1,900 to the landlord as an incentive (it is not clear on what basis – advance rent, deposit or one-off payment. I presume as deposit).

Mrs R requested a review, in part on the basis that she had not been advised that accepting the private sector tenancy would result in the termination of her homeless application. She maintained that Westminster’s officer had told her “that she would not be removed from the homeless persons’ waiting list, as the property was temporary accommodation”. Westminster rejected this on review, finding that she had been advised on the effect on her Part 7 application, and that she was indeed not homeless. Mrs R went to s.204 appeal on the basis that the Council “acted unfairly in failing to fulfil an obligation to tell her that her acceptance of the offer of “temporary accommodation” in the form of the shorthold tenancy of the property terminated her status as a homeless person and her Part 7 application.”. She asserted that she remained homeless under HA 1996 and was still owed a duty under s.193. The Council had failed to determine her application.

On appeal, it was held that:

the Council behaved perfectly properly in taking the steps that it did in suggesting that she looked for alternative accommodation. The reviewing officer made findings of fact which, on the basis of the evidence before her, she was entitled to make: see paragraph 21 of the judgment. The Council had not failed to make proper inquiries. It had reached a decision as to whether she was homeless according to the statutory definition see paragraph 24. As she was not homeless, no duty was owed to her under Part 7. It was unnecessary for the Council to consider other matters relevant to what, if any, duty was owed. In deciding that she was not homeless advice as to the consequences of her acceptance of the property was irrelevant.

Whether the Council had acted properly or not in assisting Mrs R in securing accommodation prior to making a s.184 decision was irrelevant to to the question facing the review officer. Further, quashing the decision could only result in a fresh review decision reaching the same conclusion. If Mrs R’s tenancy was brought to an end she could make a fresh application. Appeal dismissed.

On appeal to the Court of Appeal, Mrs R accepted that there was nothing intrinsically wrong in the Council assisting a Part 7 applicant to find accommodation via another route prior to the conclusion of s.184 enquiries. However, she argued that there was a:

failure of the Council to inform Mrs Rhouila of the effect on her rights in respect of both short and long term housing under Parts 6 and 7 of the 1996 Act if she accepted accommodation made available for her outside Part 7 i.e. that the Council would conclude that she was not homeless, that it would terminate consideration of her application and that she would lose her statutory reasonable preference in the allocation of long term accommodation under Part 6. It was incumbent on the Council, Mr Manning submitted [for Mrs R], to provide her with clear information as to such possible consequences so that she could make a properly informed decision.

The Homeless Code of Guidance was cited, including paras 2.13 and 6.4:

2.13. Housing authorities will need to ensure that the implications and likely outcomes of the available housing options are made clear to all applicants, including the distinction between having priority need for accommodation under Part 7 and having priority for an allocation of social housing under Part 6.

6.4. Housing authorities should ensure that the implications and likely outcomes of the available housing options are made clear to all applicants, including the distinction between having a priority need for accommodation under Part 7 and being in a “reasonable preference” category for an allocation of housing under Part 6. Authorities must not avoid their obligations under Part 7 (especially the duty to make inquiries under s184), but it is open to them to suggest alternative solutions in cases of potential homelessness where these would be appropriate and acceptable to the applicant.

Mrs R submitted that such advice should be in writing. The effect of the Council’s approach to advising her was that she

was deprived of any real opportunity to make an informed decision whether or not to accept the offer of the property. She had no proper information about the adverse consequences and the disadvantages of accepting the offer of the assured shorthold tenancy. Had she realised that the consequence of accepting the property was that she would no longer be entitled to assistance under Part 7, she would not have pursued that option. She was provided with unsuitable interim accommodation at the Leinster Hotel. She requested alternative suitable interim accommodation. The Council was aware that what was identified and was to be offered to her by the landlord was on a different non-Part 7 basis. It was also aware, though she was not, that the effect of her accepting the offer was that she would lose the right to pursue the Part 7 application, her prospect of obtaining the benefit of a Part 7 full housing duty and her statutory priority in respect of the allocation of long term accommodation to her as amongst the most vulnerable and least well resourced members of society.

There was no evidence that the officer who had advised Mrs R had informed her of the consequences for her Part 7 application and his email to the review officer did not suggest that he had. The review officer’s decision was therefore contrary to the available evidence

Westminster accepted that it was good practice to take steps to ensure that Mrs R was advised of the effects of accepting the property on her Part 7 application, but there was no formal requirement that it be in writing. The Court noted that it would be good practice for the advice to be in writing, but agreed there was no requirement.

Held:
Mrs R’s appeal did not raise any particular legal or procedural unfairness in the review decision. There was no point of law at issue. It just cam down to whether the review officer was entitled to decide as they did on two issues of fact:

First, the review officer was plainly entitled to conclude that Mrs Rhouilia was not homeless once she had taken the tenancy of the property: it was accommodation which it was reasonable for her to occupy and she accepts that it is suitable.

Secondly, the review officer was entitled to reject the various factual assertions made in the letter from her solicitors requesting a review about the handling of her Part 7 application.

The review officer’s decision on these was not perverse. Mrs R may have believed that she was told the AST was ‘temporary accommodation’, but it plainly wasn’t and it did not mean that she had been told by the officer that it was.

Mrs R’s allegations of lack of advice and being misled had been investigated by the review officer and the review officer was entitled to conclude there was no evidence to support the allegations.

Appeal dismissed.

Comment
While Westminster didn’t fall into the same trap as Lambeth in R(Raw) v Lambeth [2010] EWHC 507 (Admin) (our report here) in that they did not end s.184 enquiries until Mrs R had accepted a private sector tenancy, the facts of this case will sound familiar to many. What Mrs R was alleging was, in effect, housing options being deployed to avoid a full housing duty by securing a private tenancy, but apparently without the applicant being advised of the effects on her application of doing so. Clearly whether Mrs R was so advised was a disputed fact, and the review decision that she was, was upheld. But even if Westminster did fully advise her, it remains true that many aren’t so advised – again see Raw.

At first appeal, the CJ had held that the advice given to Mrs R was effectively beside the point – the review officer was to decide on whether the decision that she was not homeless was correct. At least the Court of Appeal finds that the ‘critical point’ was whether “

By ‘arranging’ such a tenancy rather than making an offer of one, the Council is saved the requirements of accepting a duty. While an offer of a private sector tenancy, once a duty has been acepted, can of course be an offer for the purposes of s.193(5), it remains that the s.193 duty would revive if the tenancy came to an end and there was no other change in the applicant’s circumstances – Griffiths v St Helens MBC [2006] EWCA Civ 160. Such an offer can also be a qualifying offer under s.193(7B) with all that entails.

Of course, if a properly advised applicant takes up a private sector tenancy rather than following the Part 7 route, that is a choice for them. And providing those options is a thoroughly valid thing to do under the broader rubric of ‘preventing homelessness’.

In any event, this may well become thoroughly academic, in view of the current Green Paper, the effect of which is that an offer of a private tenancy can be sufficient for full discharge of duty. For the moment though, it puts a road block in the way of challenging the adequacy of advice and decision making for homeless applicants also put on such a ‘private sector route’ scheme.

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.

6 Comments

  1. Chris B

    Does anyone know what ‘important point of principle or practice’ or ‘other compelling reason’ was used to justify the bringing of the second appeal to the Court of Appeal? Lord Justice Mummery clearly thought that there was not even any proper point of law involved (see para 22 of the judgment) although it’s not clear if he means the first appeal or the second appeal – maybe he must mean both. Surely something must have convinced the Master of the Rolls to give permission for the second appeal to be pursued.

    Call me old-fashioned if you must but I am rather appalled that public money was used to fund not one but two academic appeals in this matter. Mrs Hanton-Rhoulia was not homeless, after all and as HHJ Levy observed at the first appeal quashing the Council’s review decision would be futile as on any fresh decision she would still be adjudged as being not homeless. Did the LSC need much convincing to fund these little adventures or were Mrs Hanto-Rhoulia’s solicitors just able to self-certify the grant/continuance of public funding?

    Reply
    • NL

      Chris – you’ve answered your own question. The second appeal was given permission, so important point of principle or practice or other compelling reason was found. Given the potential wider ramifications of this point on Part VII duties, I’m not surprised, although i don’t know how it was put forward for permission.

      On the ‘point of law’, you misunderstand. Whether the review officer was entitled in law to reach the conclusions they did is still an appeal on a point of law – para 22.

      This was not an academic appeal either. You put the cart before the horse there. I’m guessing you are not a lawyer, because, by your logic, any failed appeal would by definition be academic and so shouldn’t have been brought in the first place.

      On funding, there is no way that an appeal to the court of appeal can be ‘self-certified’. Very little can be and only for 28 days. And yes, the LSC take a lot of convincing to fund cases to the Court of Appeal, one hell of a lot.

      Reply
  2. Chris B

    I think we will have to differ about whether or not these appeals were academic. I mean they’re academic in the sense that they could not ultimately be of any benefit to Mrs H-R herself – you know, the client. I saw nothing in the Court of Appeal’s judgement to indicate that they disagreed with HHJ Levy’s view that it would be futile to quash the review decision. You will, of course, know that even where a decision was arrived at unlawfully – and it is clear that there was nothing unlawful about the decision reached in Mrs H-R’s case – a judge can still refuse relief on the basis that even if the particular bit of unlawfulness had been corrected it wouldn’t have made any difference [see, eg ex p Degnan 1997].

    As far as ‘wider ramifications’ are concerned I think that sometimes the lawyers who get hold of these cases are a little too eager to use them to lay their own mark upon the development of the law. And sometimes this may involve abuse of their relationship with vulnerable clients. You know: “treating the clients as pawns in a campaign they had themselves conceived against the Council, with no particular regard to the clients’ individual interests” to quote from Lord Justice Laws in Newham v Khatun [2004]. Now I don’t imagine that Mrs H-R’s solicitors did anything quite that bad. For all I know she was fully appraised of the academic nature of the appeals and was under no false impressions that she might actually derive some personal benefit from it. Indeed she might have been hugely delighted for her solicitors to take her case on a little jaunt up to the Court of Appeal because of ‘wider ramifications’ – so much so that she might even have gladly spent her own money to enable them to do so.

    As for the bod at the LSC who green-lighted this particular expedition I can only assume that he must have had his stupid head on that day – but maybe I’m being unfair.

    Reply
    • NL

      Chris. A fresh finding of not homeless was not the only potential outcome. If it was I would agree with you on the academic as to outcome point. You are doing the same thing again, confusing the court’s finding with the potential appeal outcome.

      On the rest, well everyone has a hobby horse. I suppose this is yours. Where are all these hopeless lawyer-driven academic appeals? As they are higher courts, I presume you can provide a suitably lengthy list of references.

      Reply
  3. Alex

    I very reluctantly kind of agree with Chris here. I don’t see how this appeal was ever going to succeed: the housing officer says I told you this wasn’t s.188 accommodation; the applicant says no you didn’t; the review officer believes the housing officer over the applicant. How can it be said the review officer’s decision is perverse? It’s one person’s word against another’s either way. Surely the real problem is that the council is sitting as judge in its own cause – but after Tomlinson it appears we can’t do anything about that.

    I don’t, however, think the appeal was ‘academic’ – the Court could have quashed the review decision and issued a declaration that the applicant was in her current accommodation pursuant to s.188 pending a lawful decision on the application.

    Reply
    • NL

      Alex, I agree that the appeal was a long shot, to put it mildly, as I hope is clear from the report – on exactly the he said/she said basis. I also happen to think that the tactical approach in Raw v Lambeth to the academic ‘policy issue’ review could perhaps have been run differently (although there has been an interesting aftermath to that latter case involving FoI requests and responses provided by a third party).

      But I also completely agree on what you say about this case’s non-academic nature. Chris, meanwhile, is on a hobby horse about ‘lawyer driven academic appeals’. So far ‘he’ has mentioned this one and, by inference, Raw. Raw actually was academic and was argued as such for a broader purpose – as I understand it wholly supported by the client, who, it should not be forgotten, was one of the appellants in the whole Kay v Lambeth affair. So I’m rather mystified as to exactly which cases Chris B is referring to as those in which the lawyers are ‘a little too eager to use them to lay their own mark’.

      Reply

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