Querino v Cambridge City Council. County Court at Cambridge, 29 March 2023
Continuing the trend (of which I wholeheartedly approve) of people sending me notes of judgments, the following is a note of a s.204 appeal of a suitability review decision from Toby Vanhegan of 4-5 Gray’s Inn and Manjinder Atwal of Duncan Lewis, for which we are very grateful.
The issues were i) whether a ‘minded to’ letter should have been sent, ii) whether the council should have been satisfied that the applicant could end his licence in time to take up the offer of Part VI accommodation, and iii) the review officer had wrongly excluded the applicant’s supporting material from CAFCASS. The note follows:
In January 2022, the Appellant approached the Respondents for housing assistance. In July 2022, the Respondents accepted the main housing duty to him. In September 2022, the Respondent made the Appellant a Part VI final offer of accommodation. The Appellant accepted the offer, moved in and sought a review of the suitability on the basis that there is insufficient space at the property to enable his daughters to reside overnight, with whom he will have shared access.
Following detailed representations on review, the Respondent then issued a decision in November 2022 finding that the property was suitable for the Appellant.
An appeal was filed and issued.
There were four grounds of appeal that were raised:
1. The review was carried out in breach of regulation 7(2) of the Homelessness (Review Procedure, etc.) Regulations 2018 SI No. 223 as the Reviews Officer did not send a “minded to” letter. The Officer reached a decision without taking into account relevant information including a CAFCASS report, which strongly supported the Appellant’s review.
2. The Respondents’ offer was in breach of section 193(7F)(a) as the Respondents could not be satisfied that the Appellant could end his existing contractual obligations in relation to his temporary accommodation provided by the Appellant before being required to take up the Part VI offer. The Respondents had no information before them to state when he could terminate his temporary accommodation and when the tenancy will commence as the offer letter did not state a start date for the tenancy.
3. The Respondents wrongly excluded fundamental supporting letters i.e. the CAFCASS report. The Respondents failed to notify the Appellant of their reasons for not considering the supporting documentation. Had they notified him of their minded to decision, the Appellant could have taken necessary steps to obtain any consent required.
4. The Reviews Officer failed to apply the correct legal test when considering the suitability of the property. Counsel for the Appellant raised that section 176 HA ’96 states that accommodation shall only be regarded as available for a person’s occupation if it is available for occupation by him together with any other person who might reasonably be expected to reside with him at the accommodation. The test is therefore “reasonably be expected to reside” however, the Respondents applied a much higher test of “exceptional circumstances” from their internal policy.
In response to the above, Counsel for the Respondents argued that the decision is lawful as there was no deficiency or irregularity as all issues were dealt with within the decision letter. Secondly, the Respondents argued that when the Applicant moves in to the new property, he is no longer liable by licence, instead by the secure tenancy he accepted. The licence does not continue and he was able to hand back keys any time, which is what he did. The Respondents also argued that in Norton and Zaman (our note – NL) , it was in relation to a PRSO rather than a social housing offer so these cannot be relied on.
In terms of Ground 3, the Respondents reiterated that the issues of suitability were dealt with within the review decision and finally argued in relation to Ground 4 that it was not reasonable for the Appellant’s daughters to reside with him as they had accommodation elsewhere. Counsel for Respondent disputed that the correct test was applied and the Council’s internal policy was dealt with.
During the all day hearing listed on Wednesday, 29 March 2023, Judge Moloney heard the appeal and delivered judgment finding that the appeal is allowed on Grounds 1, 2 and 3.
Judge Moloney confirmed that the Reviews Officer erred on a point of law in relation to Ground 1. In terms of Ground 2, the Judge found that the burden of proof is on the local authority that the offer complies with statutory requirements. The local authority remains under an obligation to house an applicant. Thirdly, the local authority was wrong to exclude the CAFCASS report without applying to the Court. The RO made a serious error in law and the appeal was allowed on Ground 3.
Finally, the Judge found that Ground 4 cannot be upheld.
Consequently, the appeal was allowed with permission to rely on the CAFCASS report and the Respondent to pay the Appellant’s costs.
Comment
I understand that permission to appeal to the Court of Appeal has been sought by Cambridge.
Was the CAFCASS report not considered by the local authority because it had been disclosed to them without the permission of the Family Court having been sought and granted? If that is so, does the County Court when considering the Housing Act appeal really have permission to grant permission for it to be disclosed/relied upon? I’ve dealt with cases where the County Court, when considering a possession claim, were not able to grant retroactive permission for the disclosure of documents relating to Children Act proceedings in the Family Court – thus leading to an adjournment while that permission was sought from the Family Court.
I don’t think it matters. The issue was that it was excluded but with no reason given or ‘minded to’ letter that might have enabled the applicant to obtain any consents needed.
Whether the Family Court’s permission would have been required, I do not know.
From your report of the case it isn’t clear when it was that Duncan Lewis/Mr Querino’s solicitors came on board, Were the detailed representations on review made by Duncan Lewis (or by any previously instructed firm) on Mr Querino’s behalf? If so then surely they should have been aware of the need to seek permission from the Family Court for the disclosure of the CAFCASS report without having to be told this by the County Council.
I have no idea. You also assume that the Family Court’s permission was required. This is not at all clear.
I must confess that I have not seen a great many CAFCASS reports but those I have seen were marked “this report is restricted by rules of court. Unauthorised communication of the information in it is a serious matter and may constitute contempt of court”. I believe it is s.12 of the Administration of Justice Act 1960 which is relevant – that and Family Procedure Rule 12.73 that sets out where and to whom information relating to proceedings held in private (whether or not contained in a document filed with the court) may be communicated. It’ll be interesting to see what arguments are run if this one gets to go before the Court of Appeal. Out of interest does the case report you’ve seen say who appeared for Cambridge CC? Understand though if you don’t think he or she should be named here .