23/11/2020

When is suitable?

London Borough of Bromley v Broderick (2020) EWCA Civ 152

When assessing the suitability of a (refused) offer of accommodation made under s.193 Housing Act 1996 duty, what is the relevant date, or dates? That was the issue for the Court of Appeal in this second appeal by Bromley from a s.204 appeal which had quashed Bromley’s decision that the accommodation offered was suitable.

Ms B was owed the full housing duty by Bromley. on 19 December 2017, Bromley offered temporary accommodation at an address in Gillingham, Kent, some 30 miles or 35 mins by train away. The property would be ready by 12 January 2018. Ms B received the statutory warning of the possible consequences of refusal and of his right to request a review of the suitability of the accommodation.

Ms B refused the property as being too far from her son’s support networks. As her mother put it

“Celisa will not be accepting property. She is depressed as it is and further she’s away from her family she will sink into further depression. She has said and confirmed she can not cope being so far away with her son. As stated I am also concerned for her emotional wellbeing.”

Bromley discharged its duty under section 193(5). Ms B sought a review. On the review, the officer found that as of 19 December 2017, the only temporary accommodation available to Bromley was:

1. A three bedroom house in Kitchener Road in Medway
2. A single room in Bower Terrace in Maidstone
3. A two bedroom house in Wingfield Road in Gravesham
4. 186a Richmond Road in Gillingham

The decision was upheld and Ms B brought a s.204 appeal.

The Circuit Judge upheld the appeal, finding that the local authority should have investigated whether other temporary accommodation closer to their area had become available after the date of the offer, saying variously

As (Ms B’s) objections were articulated and as the (Council) received pleas from third parties why could not the (Council) have looked at the position again in relation to properties remaining or becoming available on or after 20th December? This point was not addressed, answered or evidenced in the Review Letter, as it should have been.

and

‘…it is my view that as of 19 December 2017 there was simply no other accommodation available to the Council which could have been offered to you.’ But what about availability over the following day(s)? (Ms B) could not move into 186a, the accommodation was not habitable ….”

Bromley appealed.

On the reviewing officer taking into account facts arising or coming to light since the date of the decision under review, the Court of Appeal noted that there certainly are cases

in which a reviewing officer should have regard to facts that have come into existence since the original decision was taken. That can be seen from, for example, the decision of the House of Lords in Mohamed v Hammersmith and Fulham London Borough Council (2001) UKHL 57, (2002) 1 AC 547 and, more recently, that of the Court of Appeal in Waltham Forest London Borough Council v Saleh. In the latter case, an individual who had accepted accommodation offered by a local housing authority asked to be re-housed and, after the authority had said that it considered that the accommodation remained suitable, requested a review. The Court identified the principal issue on the appeal as “whether the need for the housing authority to investigate whether other suitable accommodation exists closer to or within its own district applies not only to the authority when it makes the original housing decision but also to the officer who conducts the review of suitability under s.202(1)” (paragraph 31). It concluded in paragraph 39 that, “consistently with these authorities” (i.e. Mohamed v Hammersmith and Fulham London Borough Council and cases following it), “we should treat the obligation of the Council to review its decision to secure accommodation for Mr Saleh at 179 Little Ilford Lane as requiring it to reconsider that decision in the light of all material circumstances at the date of review including the availability of suitable accommodation either within or closer to its district and the school which his daughter attends”.

These were cases where a property had been accepted and a review of suitability accepted.

Where an offer of accommodation had been refused, and where

the authority has already decided that accommodation offered was suitable, and that the duty owed under s.193 had therefore already been discharged, the question the reviewer must address is whether, on the facts as they are known to be at the date of the review, the accommodation previously offered would now be considered suitable” (Osseily v Westminster City Council (2007) EWCA Civ 1108, (2008) HLR 18, at paragraph 13). What that means is that a reviewer “is entitled to have regard to facts discovered since the original decision, but they must have been facts that would have existed and did exist at the time of the original decision”: “what they should be examining is the facts that existed as of [the date of the original decision], albeit they may discover what facts existed as at that date, between the date of that original decision and the date of the review” (Omar v Westminster City Council (2008) EWCA Civ 421, (2008) HLR 36, at paragraphs 30 and 32).

But the key date in these circumstances was the date of the decision.

Ms B’s argument that suitability should fall to be assessed over a period of 4 or 5 days did not find favour:

However, the 1996 Act does not in terms require suitability to be assessed in this way. Moreover, any such approach would be impractical. Suppose, for example, that on Day 1 an authority has four applicants and four properties available to it, but that the properties are all outside its district (as was the position in the present case on 19 December 2017). The authority should not, presumably, finally allocate any of the properties that day in case better properties materialised over the next days. If the pattern repeated itself over the next three days, by Day 4 there would be 16 applicants and 16 properties. If, though, at least four of the later applicants had stronger claims to be close to the district than the first four, it would seem that the authority still should not offer anything to any of the first four, lest that prejudice the applicants with greater needs. If, after all, the authority gave the Day 1 applicants the best of the properties that had become available by Day 4, a more deserving candidate would have cause to complain if the properties appearing in the following days were further from the district and he were therefore offered something worse than the Day 1 applicants had received. A process such as Mr Fitzpatrick advocated could thus be expected both to create problems for authorities and to result in properties standing empty, to the disadvantage of the homeless. While a particular applicant might obtain accommodation in or closer to the district, applicants generally would suffer.

No challenge had been made that the Council should have made its decision on a different date, but it would have been unlikely to be successful even if made at the time of the review, as:

In the present case, as in Alibkhiet v Brent LBC, “the shortage of housing … is the constant backcloth against which all housing decisions are currently made”, the Council did not need to “wait in the Micawberish hope that ‘something will turn up'” and the Council “discharged its duty by inquiring what suitable accommodation was available at the time at which it made its offer” (to use words of Lewison LJ).

It may be that in an exceptional case in which a change in the availability of alternatives would make an offer unsuitable, but in practice this was unlikely to materialise.

The Court of Appeal concludes with something that is a familiar refrain to anyone advising homeless applicants

I would stress that someone dissatisfied with an offer of accommodation made by a housing authority would generally be well-advised to accept it and request a review of its suitability rather than to refuse it.

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.

3 Comments

  1. Ainsley

    hi there,was wondering over how many days/weeks/months this case took to be resolved?

    Reply
  2. muller

    appeal filed with CA nov 2018 original hearing date march 2020

    Reply

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