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What to review?

Nzamy v Brent London Borough Council Court of Appeal, January 26, 2011 [Arden eflash 420. Not on Bailii yet, but we’ve seen a transcript of the extempore judgment]
The appellant and family were in permanent accomodation provided by Brent following a previous homeless application. Following reports of threatened violence against them relayed to Brent, which  appears to have been effectively taken as a homeless application, Brent made an offer of alternative accommodation in December 2008. Mr & Mrs Nzamy did not consider that the property offered was suitable. Brent wrote to them stating:

Should you not accept, the Council will construe that it has DISCHARGED ITS STATUTORY DUTY to you. This will include terminating the licence for any temporary accommodation you may occupy and no longer offering any further assistance with rehousing.

Under section 202 of the Housing Act 1996 you have a right to request a review of this decision if you do not agree with it.

The Nzamys wrote a 4 page letter asking for a review, setting out why they didn’t consider the offered property suitable, as it was worse than were they were. It set out the steps the family had taken to improve their current property and steps taken by others, including the Council and the police. It ended:

Now, I ask you kindly to look at our case…..and make a right decision… Finally, I ask you please to offer us permanent accommodation ..but until that time we can wait in our current flat…

Brent took this as a request for a review of the suitability decision and found against the Nazmys. There was an appeal to the County Court, then this second appeal to the Court of Appeal.

The review officer upheld the alternative accommodation as suitable and it appears also he inferred there was a discharge of duty. The judge in the county court upheld the review officer’s decision and, whilst his judgment is not entirely clear, he inferred that there was a discharge of the duty and dismissed the appeal

At the Court of Appeal, the appellants argued that their letter should be taken as a request for a review of both the suitability decision AND the decision to discharge duty.

The parties were agreed that the review decision did not properly consider the decision to discharge duty, but Brent maintained that the Nzamy’s handwritten letter was a request for a review of suitability only, which the review officer had properly considered. In any event, there had been no decision to discharge duty until a later stage.

The Court of Appeal, in Black LJ’s extempore judgment found that:

13. Against that background, it must be asked what was on the agenda of the review officer in conducting the review? One has to look at the letter seeking a review in order to decide that. Plainly it is necessary to look at the handwritten letter by an individual applicant with common sense and to take a broad view as to what is being sought. If the family were to be allowed to “wait in their current flat” until permanent accommodation became available, they had to disrupt the local authority’s intended conclusion that their duty under s.193(2) would be discharged.

14. Against that background and bearing in mind that the authority’s letter of 23 December 2008 had made plain that they would discharge their duty, it is difficult to construe the final passage of the appellant’s letter of 4 January 2009 as anything other than a request that the review officer should view the letter as a request for a review of suitability and as a request for a review of the decision to discharge the duty.

The prospective decision by the Council to discharge duty set out in its letter of December 2008 was itself reviewable. (As per Ravichandran v Lewisham LBC [2010] EWCA Civ 755 – the link is to our note – which is not cited but clearly is followed.) The Council had made it clear that it would discharge duty and this was reviewable.

The appeal was allowed and remitted to the Council for a s.202 review of the decision to discharge duty.

So, Local Authorities should take a common sense view of review requests by un-represented applicants and take a broad view of what is being sought.  A strict or legalistic view should not be used to exclude a review of decision to discharge.

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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