Hajjaj v City of Westminster (2021) EWCA Civ 1688

Where a local authority proposes to discharge the homeless duty by an offer of private sector accommodation, what does it have to do to satisfy itself that the property is suitable, with regard to the conditions set out in Article 3 of The Homelessness (Suitability of Accommodation) (England) Order 2012 (that the property is in reasonable and legal condition and the landlord is a fit and proper person)? That was the question in these two joined appeals.

Very brief facts: –

Westminster had offered Mr Hajjaj a private property in discharge of duty. The landlord was St Mungos. On viewing the property, Mr H refused it as not suitable on various grounds, including location, nearness to family and caring responsibilities. Westminster discharged duty. On a subsequent review,Mr H’s solicitors raised the lack of evidence that Westminster had satisfied themselves as to the Article 3 conditions. Westminster’s review officer simply replied they were satisfied that ‘sufficient regard was had to Article 3’. A s.204 appeal was unsuccessful and Mr H brought a second appeal to the Court of Appeal on the issue of whether the Council had sufficiently complied with Article 3.

On the other joined appeal, Akhter v LB Waltham Forest, Waltham had offered Ms Akhter a private sector property in Harlow. The landlord was ‘More Homes WF’ and the property managed by Mears. Ms A viewed the property and rejected it on grounds including the condition of the property, complaining of the lack of a shower, damp, lack of pressure to taps and heating not working adequately.

In response, WF’s review officer said that there was no damp, the water pressure and heating issues would have been remedied by the agents. Minor disrepair which would be remedied did not make the property unsuitable. A certificate from Mears dated from a couple of weeks before Ms A’s viewing was attached, with an ‘agreed snagging list’, reading:

Kitchen
Draws and shelves to be replaced.
Bathroom
Mastic not replaced. Vanity release is wrong one as remove bolt lock.
Generally
Ease adjust doors.
Final Clean
Nets, drapes, shades and bulbs.
Note window restrictions installed in the wrong place.
Proposed date for completion
07.02.2020

A s.204 appeal was unsuccessful and Ms A brought this second appeal, arguing that Waltham had not met the Article 3 obligations, and also that Waltham did not have a procurement policy on accommodation from the private sector, and this was a breach of s.208 Housing Act 1996. (This latter was disposed of quickly on the basis that Lady Hale’s comments in Nzolameso v City of Westminster [2015] UKSC 22; [2015] HLR 2 on procurement policies were obiter reccomendations, rather than a requirement.)

On the Article 3 issue, Westminster and Waltham Forest argued that Article 3 set out conditions that made a property unsuitable, if ‘the council was of the view’ that any of them were the case. If the Council had no information, it could not be ‘of the view’ that they were the case. Any inquiries as to the condition of the property would depend on the case. If the housing provider was new or known to be a bit iffy, inspections might be merited, likewise if the prospective tenant raised complaints on viewing. But if the property was provided by a known and trusted provider, that in itself was sufficient for the Council to be entitle to assume it was in reasonable condition. Waltham Forest added that they had ample evidence to consider the property suitable in the form of the Mears report, and the landlord itself was a limited liability partnership between Waltham Forest and Mears. And poor overburdened local authorities shouldn’t be burdened more.

The Court of Appeal held that it was clearly not sufficient to meet the requirement to be satisfied on Article 3 issues just to not know of any problems, or to rely on existing relations as in themselves entitling the local authority to assume conditions met.

The local housing authority must in my judgment be satisfied that none of the ten bars to suitability established by Article 3(1) applies. Moreover, I accept Mr Colville’s central submission that they must be satisfied on the basis of evidence rather than assumptions. Taking “reasonable physical condition” as an example, it is not enough to take the view that because the proposed landlord is established and respectable, therefore all properties owned by that landlord should be assumed to be in a reasonable physical condition unless a “red flag” is raised either by the applicant or by some other adverse information which happens to be to hand about the particular property.

It cannot be right that it is for the applicant for the accommodation to raise a red flag. At the time the PRSO is made, the applicant has had no input at all. It would be contrary to the scheme of the Act to shift the burden onto the prospective tenant to object, particularly since a failure to accept the PRSO has potentially drastic adverse consequences if the objection is not upheld. The PRSO must not be made unless the LHA are satisfied that the accommodation is suitable: section 193(7F).

However, evidence didn’t mean first hand evidence to the criminal standard. Hearsay evidence may be satisfactory. The Mears inspection report in Ms Akhtar’s case would be an example

The member of Mears’ staff who compiled the report had inspected the property, found that save for some minor snagging issues it was fit for occupation the following week, and ticked boxes to show the existence of certain documents.

But in Mr Hajjij’s case, Westminster had no evidence of any inspection at all, just an assumption.

If the prospective landlord has a patchy record of compliance with standards, or is a newcomer with no track record, it may be necessary for an inspection to be carried out by or on behalf of the LHA itself. Where, as is agreed to be the case with St Mungo’s, the offer is for property owned by an established landlord with a high reputation, a report on the lines of the 31 January 2020 (Mears) document in Ms Akhter’s case is likely to be sufficient; so likewise would be a sign off document from such an established landlord stating that (for example) there is an energy performance certificate in force relating to the property.

The possible outlier among the ten subparagraphs of Article 3(1) is the last one, subparagraph (j). This appears to make it mandatory that the landlord has provided to the LHA “a written tenancy agreement, which the landlord proposes to use for the purposes of a private rented sector offer and which the local housing authority considers to be adequate”. We were not shown any umbrella contracts or service agreements between Westminster and St Mungo’s. Common sense would suggest that where the letting is to be on the terms of a standard form tenancy agreement, the text of which has been supplied to the LHA, the only remaining information being the name of the tenant, the address of the property, the rent and the duration of the tenancy, it is not necessary for the text to be sent again to the LHA each time a property is to be let. But this issue is not critical to the outcome of either of the present appeals, and it may have to be reargued in a future case.

Mr Hajjij’s appeal allowed. Ms Akhtar’s appeal dismissed.