06/12/2020

Suitable means available

Nikolaeva v London Borough of Redbridge (2020) EWCA Civ 1586

A quick note on this Court of Appeal decision concerning offers of permanent accommodation in discharge of duty. Ms N was owed the full housing duty as homeless by LB Redbridge. An offer of a housing association tenancy was made, pursuant to a nomination agreement between Redbridge and the housing association, with the letter giving the required warning that it was a final offer under s.193 Housing Act 1996.

Ms N was not happy about the property and particularly the tenancy agreement, which would apparently have prevented her from keeping her collection of plants on a ground floor communal pathway. Over a number of meetings and calls in the space of a week, Ms N refused to sign the tenancy agreement. Redbridge then discharged the housing duty on the basis that she had refused a suitable offer of accommodation. Ms N sought a review, which upheld the decision, albeit that the review letter, as HHJ Luba QC put it, let  “one scratching one’s head”, and was “a muddle” and “confusing”. Ms N appealed under s.204. HHJ Luba QC upheld the review decision. Ms N appealed to the Court of Appeal.

The Court of Appeal dismissed the appeal.

While the review decision had not been at all clear about what date it was that Ms N was held to have refused the offer, it was clear that the review officer had found “that there was an active refusal rather than any desire to obtain further advice or clarification which was illustrated by the issue in relation to the communal garden” by at least 4 July 2017. And:

Even if I am wrong about that, in my judgment, the Review Decision was the only one which could rationally have been reached. I come to this conclusion in the light of the following: Mrs Nikolaeva’s refusal to sign the tenancy agreement; the content of her letter of 3 July 2017 making her refusal clear and including the statement “I cannot agree and sign”; the receipt of that letter by Redbridge; and the file note also of 3 July coupled with that of 4 July 2017. The former stated that the housing officer had tried unsuccessfully to speak to Mrs Nikolaeva to let her know that Redbridge did not accept her reasons for refusing the tenancy and the latter made clear that the housing officer spoke to Mrs Nikolaeva regarding her 3 July letter and her refusal to sign the tenancy agreement. It follows that I reject Mr Chataway’s submission that there is a factual dispute about what occurred on 4 July 2017.

On the nature of an offer, Redbridge’s argument that an offer under s.193 could be equated with the nomination of “a person to be an assured tenant of a private registered provider of social housing or a registered social landlord under section 159(2) of the 1996 Act” was not accepted. The Court of Appeal held that the offer must be of actually available accommodation:

The plain wording of section 193(7) makes the matter quite clear. The local housing authority ceases to be subject to the duty under section 193 if the applicant refuses “a final offer of accommodation”. In order to be an “offer of accommodation” (emphasis added) it seems to me that it must be made by reference to an actual property which the applicant can occupy. Otherwise, the offer is not “of accommodation”. It is merely abstract.
This approach to the plain and unequivocal wording in section 193(7) is also consistent with the structure of section 193 as a whole. For example: the local housing authority’s duty is ended by the acceptance of an offer of accommodation or an assured tenancy under section 193(6)(c) and (cc); and section 193(7F) requires the local housing authority to be satisfied that the accommodation is suitable for the applicant and that it is reasonable for the person in question to accept the offer. These provisions do not make sense unless the offer relates to actual accommodation.

In this case, although the housing association had made warning noise about not being able to keep the nomination open much further, there was no evidence that the nomination (and hence the offer of the tenancy) had been withdrawn before the last date on which Ms N could be taken to have refused the offer.

 

 

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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