Bad reviews and a future of bunk beds

Temur v London Borough of Hackney [2014] EWCA Civ 877

This second appeal to the Court of Appeal from a s.204 Housing Act 1996 appeal raises three important questions. Unfortunately, the answers to them are rather brief and rather negative. The issues are i) whether a s.202 review of a s.184 decision can come to a finding which is substantially worse for the applicant that the original s.184 decision; ii) whether a review officer should conduct a hazard assessment (Housing Act 2004) when considering whether it is reasonable for an applicant to occupy their accommodation; and iii) how far should a review officer look to the future when considering whether the applicant is homeless.

Ms Temur had left the marital home following alleged domestic violence, her father in law allegedly did not allow her to take her daughter (now aged 5) with her. Over the next 6 months, she stayed with friends and in a refuge, then applied to Hackney as homeless. The original s.184 decision was that she was homeless but not in priority need. Ms T requested a review in February 2012. A few weeks later, in March, she took an AST of “a bed sitting room with a single bed and a small kitchen. Bathroom and lavatory facilities were shared with the occupants of other rooms in the property”. In July 2012, a family court made a shared care order in respect of her daughter, who now stayed with Ms T in the bedsit most of the time.

In August 2012, the Council review officer’s decision was that Ms T was not homeless as she had accommodation at the bedsit. That decision was withdrawn when Ms T’s solicitors argued that they had not had the opportunity to make representations on the suitability of the bedsit as accommodation. Ms T’s solicitors then argued that

that the appellant and her daughter could not reasonably be expected to continue to occupy Room 4 [the bedsit]. They stated that the main room was very small and only had space for one single bed; the appellant and her daughter had to share the bed; the shared bathroom facilities were unsatisfactory; the other residents were noisy; there were no facilities to wash clothes. They made no complaint about the size or suitability of the kitchen.

Despite an interview and a reg 8 ‘minded to’ letter and submissions, the review officer again found that Ms T was not homeless, and that the bedsit was reasonable for Ms T and her daughter to continue to occupy.

The s.204 appeal upheld the review decision. Ms T appealed to the Court of Appeal.

Now, in what follows, I have tried to set out the appellant’s argument. But I have to admit, it is sometimes difficult to discern from Jackson LJ’s lead judgment. If I am entirely honest, I find the style of Jackson LJ’s judgment rather unhelpful. While it has clear sections and a table of contents, it perhaps sacrifices clarity to brevity and reasoning to results at times.

The first argument was that the review officer “did not have power to substitute an adverse decision on different grounds, namely that the appellant was not homeless instead of a decision that the appellant was not in priority need.”

Just as an aide memoire, these are the relevant parts of s.202

(1) An applicant has the right to request a review of—
(a) any decision of a local housing authority as to his eligibility for assistance,
[…]

(4) On a request being duly made to them, the authority or authorities concerned shall review their decision.

Ms T argued that the review decision could only be on issues relevant to the s.184 decision as to duty. The review did not extend to being, in effect, a whole fresh s.184 decision. R v Brent London Borough council ex parte Sadiq (2001) 33 H.L.R 47 held that a council could not reverse its own earlier s.184 decision. Porteous v West Dorset DC [2004] EWCA Civ 244 held that a Council could vary an earlier s.184 decision but just where that decision had been based on a fundamental mistake of fact. And then in Crawley BC v B (2002) 32 HLR 636, Buxton LJ had stated:

“I would accept, also, that there could be circumstances in which a judge might properly take the view that an applicant ought not to be deprived, by events which had occurred between the date of the original decision and the date of the appeal, of some benefit or advantage to which he would have been entitled if the original decision had been taken in accordance with the law.”

However, Jackson LJ was not impressed. He found that Sadiq was concerned with s.184 decisions, not s.202 reviews, Porteous had found that a s.202 review must consider facts as they are at the date of review, and that while Buxton LJ’s comment may well be correct such that:

There may well be circumstances in which it would not be right to deprive a person of some accrued benefit by reason of subsequent events. But this is not such a case. If a person obtains accommodation between the date of the original decision and the date of the review, then provided that the new accommodation is satisfactory, it would be unrealistic to treat him or her as homeless.

There is nothing in the 1999 Regulations which prevents a reviewing officer from making a decision which is less favourable than the original decision. Nor do those Regulations prevent the reviewing officer from substituting an adverse decision on different grounds.

On the second ground, Ms T argued that the reviewing officer erred in failing to carry out a hazard assessment under the 2004 Act

It was common ground that s.206(1) and s.210 Housing Act 1996 could involve, or require a hazard assessment of accommodation. These both address the suitability of accommodation secured by the council under s.193. The issue was whether s.175(3), s.176 and s.177(2), on whether accommodation available to the applicant was reasonable to continue to occupy, contained a similar requirement. In short, did a consideration of whether a property was reasonable to continue to occupy contain a requirement that it be ‘suitable’ as per s.206(1).

Hackney argued that the two stages (stage 1 of ‘reasonable to occupy’ and stage 2 of s.193 duty) were distinct and that different statutory wording was used in respect of each.

Ms T argued that Birmingham City Council v Ali [2009] UKHL 36 supported this argument. However, Jackson LJ held, in a couple of paragraphs that I am frankly not sure I wholly follow, that:

This well known “homeless at home” decision arises out of the large number of homeless applicants in Birmingham and the chronic shortage of housing accommodation in that city. Mr Ali and the other applicants were living in accommodation which it was reasonable for them to occupy in the short term, but not in the long term. The House of Lords held that the City Council was entitled to regard the applicants as homeless under section 175 (3) of the 1996 Act, but nevertheless to leave them there for a limited period. Thereafter the City Council had to move the applicants to accommodation which was “suitable” under sections 206 and 210 of the 1996 Act. Baroness Hale gave the leading speech, with which the other members of the Appellate Committee agreed. She makes clear at paragraphs 47 and 48 that the tests to be applied under section 175 (3) and 206 are different. There is a period of time during which the applicants are characterised as homeless under section 175 (3), but their accommodation is characterised as “suitable” under section 206.

I therefore conclude that Ali does not support the appellant’s case. On the contrary it supports the respondent’s submission that the stage 1 exercise and the stage 2 exercise involve applying different standards.

While MS T also argued, via Harouki v Kensington and Chelsea Royal London Borough Council [2007] EWCA Civ 1000, that the ‘stage 1’ and ‘stage 2’ exercise were clearly interrelated, Jackson LJ found:

When I stand back and look at the provisions of the statute, I can see that Parliament has established different sets of rules for the stage 1 exercise and the stage 2 exercise. There would be no point in doing this if the intention was that both exercises would assess accommodation in the same way.

This point is reinforced when one looks at the Code of Guidance. Chapter 8 tells councils how to carry out the assessments under sections 175 (3) and 177 (2). Chapter 17 tells councils how to carry out assessments under sections 206 and 210 of the 1996 Act, as well as under the 2004 Act. The whole statutory scheme and the statutory guidance proceed on the basis that the stage 1 exercise and the stage 2 exercise involve different processes as well as different criteria.

This left the last ground, that the reviewing officer had failed to look to the future when considering whether the appellant was homeless.

The issue here was the Birmingham v Ali test, that ‘reasonable to continue to occupy’ “involved looking to the future as well as the present. If a family is occupying unduly cramped accommodation, which they can be expected to endure in the short term but not indefinitely, then they are “homeless” within the meaning of section 175″.

Jackson LJ found that the review decision had addressed ongoing reasonableness:

At paragraph 32 of the letter Mr Ferlance dealt with sleeping arrangements. He advised that the use of bunk beds would alleviate the problems which the appellant faced.

At paragraph 24 Mr Ferlance noted that the landlord had dealt with the defects which the appellant had reported. Mr Ferlance was satisfied that the landlord would respond equally constructively if asked to deal with the problem of other tenants causing noise. Also the Council’s private sector housing team would be able to assist in that regard.

In relation to washing facilities, Mr Ferlance ascertained where local launderettes were. He explained this in paragraph 25 of his letter.

Mr Ferlance carefully considered the shared bathroom arrangements in paragraph 26 of his letter. He dealt with overcrowding at paragraphs 32 to 39. He considered the relevant authorities, including Harouki on which Mr Colville relies. He assessed Room 4 in accordance with the guidance set out in the Code of Guidance. He noted that under Annex 16 to the Code a child under ten was not to be counted as a separate person.

Mr Ferlance candidly accepted that the arrangements were not ideal. On the other hand, as permitted by section 177 (2) of the 1996 Act, he had regard to the general circumstances prevailing in relation to housing in Hackney. He noted that there were 5,499 households on the waiting list for two-bedroom properties and 2,027 households lacking one bedroom.

Having considered all relevant factors, including specifically arrangements for the future, Mr Ferlance concluded that it was reasonable for the appellant and her daughter to continue to occupy Room 4.

Although this was ‘the most formidable ground of challenge’:

Nevertheless I have come to the conclusion that Mr Ferlance did properly look to the future and he reached a decision which was open to him.
As Hevin grows older the difficulties of the appellant and her daughter occupying Room 4 may increase. It will then be open to the appellant to make a fresh application to Part VII of the 1996 Act and the Council will have to consider it: see Rikha Begum v Tower Hamlets London Borough Council [2005] EWCA Civ 340

Lewison LJ and Christopher Clarke LJ agreed. On the original decision issue, Lewison LJ consider that the wording of Regulation 8(2) made it clear that a review decision was a new decision, which could differ to the s.184 decision and one that could be made adversely to the interests of the applicant.

Appeal dismissed.

Comment

There are some difficult issues n this decision, which I think the judgments rather gloss over. Not only is Harouki still alive on the issue of whether overcrowded accommodation can still be reasonable – it appears that the answer is that despite Birmingham v Ali it can be if the Council’s area is widely overcrowded – but also a Housing Act 2004 hazard assessment does not have to be carried out when considering reasonableness, even if issues are raised. One would hope that the situation would be different if a HHSRS assessment had shown category one hazards and this had been put to the Council, but that might have to be another case.

Then there is the issue of what is a review, a reconsideration of the original s.184 – and that decision on duty – or effectively a fresh decision on the (possibly changed) facts at the time of review.  I must confess that the language of the statute lends itself to the Court of Appeal’s view, and it can’t be disputed that the review decision is entitled to take into consideration facts post dating the s.184 decision.  But on the other hand, a ‘review’ is not a fresh decision, and if it were, there would be no need for reg 8.

However, unless the Supreme Court takes this on, here, rather unsatisfactorily in a number of ways, we are.

About Giles Peaker

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, and still is Nearly Legal on Google +.
Posted in Homeless, Housing law - All.

6 Comments

  1. I am glad that it was not just me that found this case a bit of a mess. Do not have to usually read a case twice just to get my head around it!

  2. Perhaps the most striking consequence of the decision is that an issue that initially was decided in favour of the applicant may, on review, be legitimately reversed, even where there isn’t a change in circumstances, but merely where the reviewer takes a different view on the same facts.

    Hmm, I’m wondering whether this applies to an applicant who was initially held to be owed the main duty, but seeks a review on an adverse local connection referral decision. That really could, depending on the facts, make the decision to pursue a review a risky business.

    • I had thought about this. I don’t think so. These are separate sections of s.202 – (1)(b) for homeless duties owed, (1)(c)(d)(e) on referral, (1)(f) on suitability of accommodation. So, the review is under on of these specific subsections and I don’t think can extend to matters under another subsection. So a review of suitability can’t revisit a decision on duty.

      As to a review of a s.184 – that won’t take place on a decision of full duty, obviously, but a review of intentionality decision, for example, might end up with a finding of not homeless and thus a lesser duty (for all that the duty to the intentionally homeless is pretty minimal).

  3. Really interesting article, this is absolutely necessary in this day and age, i can’t believe I couldn’t find a review of the place I was wanting to move into last year. There is a website, i think it’s called Movem.co.uk which BBC referred to as the TripAdvisor for housing, this is hopefully going to help thousands if not millions of renters find appropriate accommodation.

    • Um, Deborah, the review in the post is a statutory review under s.202 Housing Act 1996 of the suitability of accommodation provided by the council to homeless to whom it owes a housing duty. I think you might have got the wrong end of the stick.

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