06/12/2011

When should an offer be ‘suitable’?

Abed v City of Westminster [2011] EWCA Civ 1406

Is an offer of temporary accommodation under s.193(5) Housing Act 1996 unlawful if the Local Authority has not assessed the suitability of the accommodation before making the offer? This was the issue before the Court of Appeal.

Ms A had had her homeless application accepted by Westminster. She and her son were offered temporary accommodation in Ilford. Ms A said that it was not suitable, in part because she was acting as the carer for a disabled nephew in Paddington 5 days a week. She also referred to her and her son’s medical conditions. She requested a review (without having accepted the property).

Westminster reviewed and upheld the decision that the property was suitable. Ms A appealed. By way of compromise of that appeal, Westminster undertook a further review. The decision was again confirmed and Ms A appealed again.

Ms A’s ground of appeal, not made before the County Court, was:

The single issue is that Westminster followed an unlawful process in making its offer to the appellant because it did not assess the suitability of the accommodation for her needs before making the offer. Thus the entire focus is on the position on, and before, the date of the offer on 11 February 2010. No criticism is addressed to the review process or to the review decision as such. In terms Mr Gannon contends that the ability to challenge the suitability of an offer by way of the review process of the appeal is not an adequate substitute for ensuring that the inquiry and assessment process as regards suitability should take place before the initial offer is made.

Ms A relied on Collins J in R v Newham London Borough Council, ex parte Ojuri (No 3) (1998) 31 HLR 452. That case was concerned with suitability and Newham’s failure to address suitability before making an offer of ‘what was available’ – a B&B. Newham’s failure to consider suitability meant that it’s decision was quashed.

However, that was a Judicial review decision on the temporary duty under s.188, to which the s.202 review and s.204 appeal procedure did not apply. The Court of Appeal therefore found it could not be taken as a precedent for the proposition that a failure to consider suitability before making an offer was unlawful and ineffective, without being curable by the statutory review process. That said, Ojuri may be a helpful indicator of the nature of an Authority’s duty before it makes an offer.

Ms A also raised R v Islington London Borough Council Ex parte Thomas (1998) 30 HLR 111 which refers to the need for the Authority to investigate factors relevant to suitability. In the present case, Westminster had not made any efforts worth regard about factors relevant to suitability prior to making the offer. This, Ms A submitted, made the offer unlawful and initially and incurably flawed.

When Ms A was pressed on the relevance of the statutory review process, it was accepted that there might be a case in which such a defect in the original process, if taken as an objection and properly investigated in the review process, could still be cured if the reviewing officer came to the same conclusion by a fresh and proper process. In which case, the review decision might not be vulnerable to appeal. But in any other case, the review process could not cure the original failure.

But, Ms A also had to accept, a reviewing officer could not be criticised for not having addressed the adequacy of the initial process if it had not been called into question in the course of the review. No such point had been taken in Ms A’s review, meaning that Ms A’s argument was at a point of generality above the facts of the present case and which could not lead to this appeal being allowed.

The Court of Appeal found that the statutory review procedure encompassed this issue. The review process was introduced to reduce the number of judicial review claims. Instead, most decisions under Part VII carried a right to administrative review, with appeal to the County Court on a point of law.

Following Omar v Westminster City Council [2008] EWCA Civ 421, Mohammed v Hammersmith and Fulham LBC [2001] UKHL 57 and Sahardid v Camden LBC [2005] HLR 11, a review of suitability must take account of facts as they are at the date of review, but on discharge of duty the review was limited to the position at the time of the original decision. Sahardid, on point on the issue of suitability, emphasised that the review decision “needs to be taken upon the facts that exist at that time. To do otherwise would be shutting one’s eyes to the actual facts, which could cause an injustice”.

Further, R(Calgin) v Enfield LBC [2005] EWHC 176;HLR 4 had held that procedural defects at an early decision stage could be rectified by the opportunity to put any points about suitability to the review officer for consideration.

No challenge was brought to the review process itself in the present case. That was fatal to the appeal. The remarks in Ojuri had no relevance to a case were the statutory review process was available. The Housing Act 1996 provided the applicant the opportunity to challenge the decision and have it fully reconsidered on the full facts submitted. This available reconsideration excludes a challenge on the grounds that the original process was incorrect or even unlawful, as this is superseded by the question of whether the review process was carried out properly or reached a legally correct solution.

While the offer of accommodation under section 193(5) is of significance to the applicant, and accepting the offer, then requesting a review, is not an easy option, that dilemma is inherent to the legislation. As the review process is a continuation or replacement for the initial decision-making, it is analogous to a Judicial review under the old process, i which the original decision had been quashed and a fresh decision required.

In the present case, even if the Authority had indeed failed to make proper inquiries on the issues relevant to suitability before making an offer, the remedy was the right of review. A s.204 appeal was limited to an error of law in the review decision, and not any alleged error in the original decision, but as the review supplanted the original decision, this was not a valid point.

The applicant had had the benefit of a second review and appeal to the County Court. No error in the review decision had been shown or could be shown.

Appeal dismissed.

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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