SH, R (on the application of) v The London Borough of Waltham Forest (2019) EWHC 2618 (Admin)
This was a judicial review of Waltham Forest’s decision that it had discharged its s.193 Housing Act 1996 duty (the full homeless duty) to Ms SH by an offer of private sector accommodation under s.193(7AA). In fact, WF maintained it had done so twice, and both purported discharges were challenged, by way of WF’s decision that Ms SH had made a fresh application, rather than it having a continuing duty. There is also a brief excursus into the relation of s.193 and s.189B duties.
Ms SH was granted refugee status in 2014, having fled trafficking for the purposes of sexual exploitation. She applied as homeless to WF. In April 2015, WF accepted it owed the full s.193 duty.
In May 2016, Ms SH was offered a private sector tenancy in Ilford, which she accepted. The status of that offer forms part of the challenge. In 2017, Ms SH was served with a section 21 notice requiring possession of that property. WF accepted that they owed the s.193 duty. In August 2017, WF made an offer, expressed as a Private Rented Sector Offer, of a property in Tottenham, which Ms SH accepted.
From the start of that tenancy, there were clear issues with living at the property.
They are comprehensively detailed in a letter from the Refugee Council to the defendant dated 26 July 2018. In summary, the communal grounds of the block of flats are used as an open-air brothel where sexual activity can be seen by the claimant and her daughter. The claimant has taken videos from her flat of the activities in the gardens around her flat. The claimant’s daughter’s school had written to the defendant, stating that witnessing such activities was having a detrimental impact on the child, and a psychotherapist from the Refugee Council had written as to the effect on the claimant’s mental health.
Ms SH approached WF in July 2018 claiming homelessness. WF treated this as a fresh application, which gave rise to the present challenge in which it was argued it was a re-application. In October 2018, WF made an offer of a property in Kettering under s.189B(2) Housing Act 1996. This was refused.
The relevant provisions were:
The section 193 duty can be discharged under section 193(7AA) of the Act if the applicant, having been informed in writing of the matters mentioned in section 193(7AB), accepts or refuses a PRS offer. Thus, to be a valid discharge of the section 193 duty, the following conditions need to be met. There has to be an offer of property in writing, which warns the applicant of the matters in section 193(7AB), namely: (i) the possible consequences of refusal or acceptance of the offer; (ii) the right to request a review of suitability; and (iii) the effect under section 195A of a further application to an authority within 2 years of acceptance of the offer. The property has to comply with the conditions in section 193(7AC), namely, (i) it has to be an AST for a fixed term of at least 12 months, (ii) it has to be made with the approval of the authority in pursuance of arrangements made by the authority with a view to bringing the authority’s duty to an end. The authority have to be satisfied that the property is suitable (section 193(7F)).
On the Ilford offer, which was a 12 month AST, there was no evidence that Ms SH had received the offer in writing with the s.193(7AB) warning. Ms SH denied having received such a letter. Her evidence was that she had kept all letters from WF, and this was not amongst them. WF were completely unable to produce a copy of the letter.
WF argued that this was an unfortunate result of the then team having been disbanded and a new private lettings team having been created, plus a move from paper to electronic storage. WF also relied upon its ‘standard practice’:
namely that as the offer was made by the LWF team, it could only have been a PRS offer accommodation because the LWF team did not offer temporary accommodation. Further that it was standard practice in the LWF team to send PRS offer letters, like the PRS offer letter for the Tottenham property, which was sent to the claimant on 25 August 2017. The claimant submits there is a presumption of regularity in relation to public authorities, which if it is applied, means that if it was standard practice to send such offer letters, it is to be presumed that one was sent.
WF also pointed at the incentive paid to the Ilford landlord as evidence that this was not intended as temporary accommodation.
However, WF’s own computer records went against it.
There is no reference in either set of computer records to indicate that the defendant sent a standard form offer letter for the Ilford property, giving notification in accordance with section 193(7AA) of the Act. The entry for 16 May 2016 reads: “client being rehoused by LWF 16/5/2016. Details to follow.” There are no further entries until the following year, when on 7 April 2017, the landlord informed the defendant that it required the property back in order to sell it. More significantly, there is also an entry for 2 May 2017 which states: “App was assisted by LWF to secure property in May 2016. section193 duty was not discharged at the tme.”
It was irrelevant that Ms SH’s previous solicitors had taken the Ilford property to be a s.193(7AA) property. This was what they were told by WF, but at that point, Ms SH was taken to be making a re-application.
It followed that the Ilford offer and tenancy did not end the s.193 duty to Ms SH.
On the Tottenham offer in 2017, while the information in writing had been sent, Ms SH argued that the property was not suitable and that WF had not satisfied itself that the property was suitable before making the offer, as required by s.193(7F).
Mr Johnson submits that the defendant did not satisfy itself that the Tottenham property was suitable accommodation, moreover, it did not comply with the requirements of the Homelessness (Suitability of Property) (England) Order 2012. The property was not suitable for the claimant and her daughter, principally because the property is in the vicinity of street prostitution and drug dealing, which was not suitable for a child or for a woman who was a survivor of human trafficking for sexual exploitation. He relies upon the fact that the defendant accepted as long ago as September 2018 that the appellant was homeless as evidence that the property was never suitable, as such it could not have been a valid PRS offer.
(There were other issues raised about enquiries into the landlord’s fitness and provision of EPC and energy safety certificates. These were not upheld on the evidence.)
The court accepted the suitability argument.
I find that that the Tottenham property was never suitable accommodation. It seems to me that any proper due diligence should have alerted the defendant to the unlawful sexual activity that was taking place in the communal gardens of the Tottenham property. Bearing in mind that the defendants should have been aware of the particular characteristics of the claimant and her daughter, the offer should never have been made.
Thus the Tottenham offer was also not a valid s.193(7AA) offer and did not discharge the s.193(2) duty to Ms SH.
WF then argued
when the claimant approached the defendant in July 2018, a duty arose under section 189B of the Act, to take reasonable steps to help the applicant to secure a suitable property. In the present case the defendant submits that the duty under section 189B ended when the claimant refused the offer of the Kettering property and by virtue of section 193A the section 193 duty also came to an end.
This got short shrift. As the s.193 duty had never been discharged, the ‘lesser’ s.189B(2) duty (the ‘help to secure’ duty) had not arisen, so a private tenancy of 6 months under s.189B(2) and s.193A(3) could not be relevant in discharging duties. Further, as the s.193 duty had arisen in 2015 and had not subsequently been discharged, reg 4 Homelessness Reduction Act 2017 (Commencement and Transitional and Savings Provisions) Regulations 2018/167 applied, excluding the Homelessness Reduction Act 2017 amendments from applying.
WF had acted unlawfully and Ms SH was still owed the full s.193 duty.
Frankly, I’m amazed that LBWF thought they would get away with their defence on the first offer in Ilford, given that the applicant clearly had all the documents concerning it, including many they did not. Seems like they were trying it on a bit there and should have really just abandoned the point.
On the secondary offer, I can see a little where LBWF were coming from but Nzolameso made it clear a while back now that Authorities must be satisfied of suitability before making an out of borough PRSO. A cursory glance at crime stats and a discussion with the local Safer Neighbourhoods Team would have revealed the issues in the area of the Tottenham property which, given her past, would have obviously made that accommodation an unsuitable offer for her.