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Private sector accommodation in discharge of duty – meeting the tests at the right time


Ayinla v London Borough of Newham. Central London County Court. 29 September 2023 (copy of judgment)

Our thanks to Haroon Sarwar of TV Edwards for the judgment in this section 204 appeal.

The key issue was whether LB Newham had met the requirements of satisfying itself that a private sector tenancy offered in discharge of duty was suitable, with regard to the judgment in Hajjaj v City of Westminster (2021) EWCA Civ 1688 (our note) and the conditions in Article 3 of The Homelessness (Suitability of Accommodation) (England) Order 2012.

There is a lengthy history to the appeal, which itself followed a withdrawn and re-made s.202 review decision, following previous appeal proceedings. The actual offer of the tenancy was on 24 November 2020. Ms Ayinla had rejected the accommodation as not suitable over concerns about damp and mould in relation to her heath conditions. The re-review in April 2023 upheld the decision that the property as suitable. Ms A brought this s.204 appeal.

Article 3 provides

Circumstances in which accommodation is not to be regarded as suitable for a person
3. For the purposes of a private rented sector offer under section 193(7F) of the Housing Act 1996, accommodation shall not be regarded as suitable where one or more of the following apply–
(a)the local housing authority are of the view that the accommodation is not in a reasonable physical condition;
(b)the local housing authority are of the view that any electrical equipment supplied with the accommodation does not meet the requirements of regulations 5 and 7 of the Electrical Equipment (Safety) Regulations 1994(2);
(c)the local housing authority are of the view that the landlord has not taken reasonable fire safety precautions with the accommodation and any furnishings supplied with it;
(d)the local housing authority are of the view that the landlord has not taken reasonable precautions to prevent the possibility of carbon monoxide poisoning in the accommodation;
(e)the local housing authority are of the view that the landlord is not a fit and proper person to act in the capacity of landlord, having considered if the person has:
(i)committed any offence involving fraud or other dishonesty, or violence or illegal drugs, or any offence listed in Schedule 3 to the Sexual Offences Act 2003(3) (offences attracting notification requirements);
(ii)practised unlawful discrimination on grounds of sex, race, age, disability, marriage or civil partnership, pregnancy or maternity, religion or belief, sexual orientation, gender identity or gender reassignment in, or in connection with, the carrying on of any business;
(iii)contravened any provision of the law relating to housing (including landlord or tenant law); or
(iv)acted otherwise than in accordance with any applicable code of practice for the management of a house in multiple occupation, approved under section 233 of the Housing Act 2004(4);
(f)the accommodation is a house in multiple occupation subject to licensing under section 55 of the Housing Act 2004 and is not licensed;
(g)the accommodation is a house in multiple occupation subject to additional licensing under section 56 of the Housing Act 2004 and is not licensed;
(h)the accommodation is or forms part of residential property which does not have a valid energy performance certificate as required by the Energy Performance of Buildings (Certificates and Inspections) (England and Wales) Regulations 2007(5);
(i)the accommodation is or forms part of relevant premises which do not have a current gas safety record in accordance with regulation 36 of the Gas Safety (Installation and Use) Regulations 1998(6); or
(j)the landlord has not provided to the local housing authority 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.

So, the local authority has to be satisfied that none of these apply in order to find a property is suitable.

The appeal was upheld on two grounds.

Newham erred in law by considering that the offer was a qualifying Private Rented Sector Offer.

The homelessness file as disclosed did not contain certain documents as of the date of the offer. On the first inspection of the property in October 2020, the landlord had been directed to carry out certain works. The landlord had told Newham these had been done, but on a further inspection of the property on 17 November 2020 by Newham, there was no property condition report resulting, just some photographs, so the satisfactory completion of the works had not been addressed on the file (and an email from the officer inspecting post dated the offer being made). There was an undated tenancy agreement, in NRLA standard form, but no indication that this had been reviewed. There was a property condition form completed by the landlord, but this was undated. It was wholly unclear whether the tenancy agreement or property condition form were before the decision-maker at the time of the decision.

The review decision had incorrectly been made on the basis that “the review is a reconsideration of the facts, including any fresh facts coming to light after the making of the original decision”. This was wrong. The question as to whether the local authority had properly satisfied itself that the property was suitable was as of the date of the offer and could no take into account subsequent information.

Secondly, the reviewing officer failed to properly deal with the question of whether Article 3 had been satisfied regarding the condition of the property and the adequacy of the assured shorthold tenancy agreement.

compliance with Article 3(1) should not simply be a technicality. The terms of the Order as interpreted in Hajjaj place great importance on local authorities in observing their obligations for all the reasons that I have already set out – not least issues of disrepair and safety.

Mr. Rahman, in his email of the 29 October 2020, set out 13 items of work that were required to be undertaken. The required work ranged from safety measures (such as mains connected detectors, window restrictors and fire blankets) to repair works (such as a leaking toilet, fire door installation, and faulty window handles).

There is no record of these works being completed, except that Mr. Rahman attended the property again on 17 November 2020 and stating that there was no evidence of dampness or condensation and producing photographs to demonstrate the point. The problem for the local housing authority is that Mr. Rahman’s Property Condition Report is not only undated, but it fails to address these issues, and that renders it insufficient to satisfy the requirement that at the date of approving the making of the offer to Ms. Ayinla, the property was in a reasonable physical condition.

As a result, and there was nothing in Mr. Rahman’s oral evidence to convince me otherwise, was it open to the Respondent to form “the view” that the property is in “a reasonable physical condition”? Indeed, some evidence points to the contrary – such as, as the electrician recommending that detectors should be hard- wired into the property. That lends considerable weight to the Appellant’s argument that Articles 3(1) (c) and (d) were not satisfied – thereby rendering the property unsuitable. It raises appropriate concerns about the safety of the property.

I am also not entirely sure that acceptance of a blank AST form (albeit it one produced by the National Residential Landlords Association) could be described as “adequate”. There is no apparent record of any consideration of its terms. That is necessary pursuant to Article 3 (1) (j). I would have expected some record at least, or some reference to , for example a term in respect of the required deposit in the offer letter (but there is none).

In the absence of any steps taken to “approve” the PRSO before the offer was made and in the silence on the issues arising under Art.3, it was not open to the review officer to conclude that “sufficient account was taken of” the 2010 Order when the offer was made.

The decision was unlawful.

On remedy, it was not the case that the decision was ‘academic’ as proposed by Newham on the basis that any new review deciion would reach the same conclusion.

Having found that the property was not properly found to be suitable at the date of the offer, the offer was not an ofer in discharge of duty. Ms N remained owed the full housing duty and the decision varied accordingly.


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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