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Well, that’s embarrassing

By Dave

You know how when you search for something that isn’t there on NL, it comes up with that (quite annoying) “well, that’s embarrassing” logo?  Well, I searched last night for Vilvarasa v Harrow LBC [2010] EWCA Civ 1278 but couldn’t find it.  Then, it struck me that maybe it was embarrassing and I’d said I’d do it back in November when it came out (in response to one of NL or the Chief’s lists that they regularly produce of what’s interesting) but hadn’t done it.  I could have kept quiet, but Vilvaras is really quite significant on the section 193 duties.  So, somewhat belatedly, we come to this really rather important limitation on Ravichandran v Hounslow LBC (which in turn confined Omar v Birmingham CC to its own facts).   The issue concerns the section 193 duties and, more specifically, the differences between those duties.  Ravichandran sought to provide an overview and rationality to what otherwise seemed something of a ragbag, and an inconsistent one at that.  It was concerned with the section 193(7) waiting list offer (suitable, reasonable and discharge of duty – all reviewable).

In Vilvarasa, on the other hand, the Court of Appeal first had to determine which duty Harrow were seeking to employ and then had to face a really rather difficult (and clever) argument from Iain Colville for Vilvarasa, which, frankly, the Court of Appeal met with the meat cleaver of Holmes-Moorhouse.  Anyway, the facts:  Harrow owed the main homelessness duty to Mr Vilvarasa.  It sent him a letter informing him that it was offering him temporary accommodation under section 193.  The CA found that this letter was clearly referring to a section 193(5) temporary accommodation offer.  The letter didn’t identify a particular property.  One was subsequently identified which Mr Vilvaras refused, whereupon Harrow sent him a decision that the property was suitable and reasonable.  They gave him a further opportunity to take the property and review it, or reject and review it. Mr Vilvarasa took the latter option and was unsuccessful on review.  The review decision found that the offer was suitable and reasonable and discharged duty.

The first ground of appeal was that Mr Vilvarasa hadn’t been given all the information (ie the identity of the specific property) at the time of the offer.  The offer was clearly made under section 193(5), even though it referred to reasonableness and was not specific in the offer letter – it was an offer of temporary accommodation.  Iain Colville’s point was that the actual specific property could have been identified at any time in the future and all the information needed to be given at the time of the section 193(5) offer.  That didn’t wash with this CA, which said that this was fact specific – if there had been a very long period elapsed between the letter and the identification of the property, you might be in with a shout but that wasn’t this case.  In any event, the point from section 193(5) “… is merely that the required information must have been supplied by the time the applicant refuses. There is in fact nothing in the statute to require the relevant information to have been given by the time the offer is made” (at [26]).

The second ground of appeal was where it got interesting.  Iain Colville argued that Harrow had treated it throughout their decision-making on refusals and reviews as a section 193(7B) offer, hence the significance of them saying that the offer was “reasonable”.  The argument was that “suitability” for the purposes of sections 193(5) and (7B) involve rather different considerations – indeed, one might say that was the whole point of Ravichandran (and, one might say by inference, Awua).  The CA’s dismissal of that argument is less than convincing, in my humble opinion.  They say first that Harrow were clearly dealing with it as a s 193(5) offer; they considered suitability in the review process and the rest was essentially just otiose; Ravichandran was a case where the local authority were trying to change tack mid-stream (if that doesn’t mix metaphors) and so was distinguishable; “it seems to me completely unrealistic to think that it was nonetheless addressing itself to suitability as if this was a subsection (7B) case” (at [37]); and, in any event, Holmes-Moorhouse:

In my judgment this is precisely the kind of case in which Lord Neuberger’s approach is particularly apposite. The blunt truth is that, in the final analysis, Mr Vilvarasa is seeking to take advantage of a minor slip by a local authority in circumstances where it is idle to imagine that this slip could possibly have affected either the substance or the fairness of its decision. (at [39])

All of this just seems thoroughly unconvincing and I wondered whether Iain Colville is seeking leave to appeal (but, if he had, I suspect that the UKSC would have heard it by now).

Sorry for the delay – I’m off to my other guilty secret, “The Good Wife” …

1 Comment

  1. NL

    The embarrassment is sort of collective – I’ve delved back through our emails and Vilvarasa was never on any of our to do lists. Scandalous, but as (nominal) editor, I must take the blame. Particularly as I remember this case…

    I must also take the blame for the error 404 page – although it doesn’t say ‘well that’s embarrassing’ anymore, now it blames visitors for breaking the Internet. If that is annoying, I shall dispose of it and replace it with something more cringing.

    Thanks for sparing our archival blushes, even as you add to the mounting evidence of your own televisual shame.


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