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Not So Great Expectations


We are all aware that there is no general entitlement to permanent accommodation via the Part VII route (R v Brent ex p Awua). So it is interesting to find a s.204 appeal where it was argued that the Appellant had a legitimate expectation of permanent accommodation in preference to anything else that the Council might offer.

The judgement in Obiorah v LB Lewisham [2013] EWCA Civ 325 contains, unusually, scant background information about the Appellant and the property that was offered to her in discharge of the homelessness duty.

The Court of Appeal’s judgement reveals a long history of accommodation that was offered, withdrawn and compromised on review/appeal from 2004 onwards.

It is apparent that that Appellant had mobility issues and that recommendations were made on 21/1/10 for the Appellant to be made one Part VI offer of lifted accommodation within the Lee Green ward.

Lewisham proceeded to offer the Appellant temporary accommodation at Flat A, 7 Cambridge Drive, London SE12 8AG on 14/6/11. The Appellant responded by asserting her right to permanent accommodation, the offer was remade and the Appellant reiterated her argument. Lewisham treated her response as a request for a review and there followed a ‘minded to’ letter (which the Appellant states she did not receive) inviting further information and/or representations.

The s.202 decision was made on 15/8/11 and it upheld the offered accommodation as suitable for the Appellant. The letter also referred to the possibility that the temporary let might have been converted in due course to a permanent let under Lewisham’s ‘temporary to permanent program.’

The appeal to the County Court was dismissed and on appeal to the Court of Appeal, permission was granted on the strength of a (rather convoluted) procedural fairness ground. An application was made for additional grounds to be added (breach of Reg 8(2) of the Review Procedures Regs, breach of legitimate expectation and unfairness) and the application and substantive appeal were dealt with together on 28/2/13.

On the question of legitimate expectation, reference was made to the section of Lewisham’s policy, which states: ‘if the local office accepts that any of these guarantees is not met, the offer will be withdrawn and another one made when a suitable property becomes available’. It was accordingly argued that this gave rise to an expectation that further permanent accommodation would follow a withdrawn offer.

McCombe LJ dismissed this ground, concluding that there was nothing in the Council’s policy or in any other representations it made to suggest that it was relinquishing its right to offer temporary accommodation to the Appellant. If the Appellant held entrenched views about her right to permanent accommodation, this was through no fault on the Council’s part.

The Reg 8(2) issue is curiously vague and the Judge’s finding was that the Appellant failed to make out her case that Reg 8(2) applied at all.

The final ground related to the passage in the review decision referred to above about the conversion of the temporary let to a permanent let. The Appellant’s argument was that this decision ought to have been communicated to her so that she could make a properly informed decision whether to accept it and that it was unfair to withhold it. It was alternatively argued that the absence of this information was a deficiency in a Reg 8(2) sense. The Judge disagreed: firstly the Act contained no obligation to communicate such information and secondly, the Appellant failed to engage with the Authority in the review process. It cannot therefore be said in those circumstances that any non-disclosure on the Authority’s part was unfair.

The Appeal was dismissed.

Comment: I initially felt sympathy for the Appellant in respect of the fairness ground as I suspect she might well have had a change of heart had she been told of the possibility of the conversion of the temporary let to a permanent one. On the other hand, had the Appellant accepted the offer and moved in, she could hardly have expected the review decision to be quashed for want of disclosure, irrespective of how she conducted herself in the course of the review. In other words, an applicant who has refused could not expect to find themselves in a better position than one who has accepted the property. It therefore all boils down to whether offered accommodation is suitable and the old adage that if in doubt, accept and request a review.




SJM is partner and head of the housing and public law department at Miles and Partners LLP, based in London E1.


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