Querino v Cambridge City Council (Rev1) (2024) EWCA Civ 314

We’re a bit late to this one. The backlog is growing as I’ve had other things to do, but here it is.

This was a second appeal to the court of appeal from a s.204 appeal of a decision on suitability of accommodation offered to Mr Querino in discharge of homeless duty.

Mr Querion had become homeless on the breakdown of his marriage. Cambridge had accepted a full duty. He was in temporary accommodation in a council hostel. Cambridge offered a secure tenancy of a one bedroom council flat. Mr Q accepted but asked for a review of suitability on the grounds that his three daughters would be very likely to be staying with him 3-4 nights a week, and that this was being sought in proceedings in the Family Court. A two bedroom property would be suitable. Cambridge had originally decided the property was suitable on the basis of its allocation policy, which said that children would be considered to only have one main home, and on the basis that the children were safe in the previous property with their mother.

While the review was underway, Mr Q’s solicitors sent the review office a CAFCASS report prepared for the Family Court proceedings, and review submissions made reference to the report.

The review officer checked with CAFCASS, who told her that permission had not been given by the Court for the report to be disclosed to the council and

“Until there is consent from both parties/ the court for sharing the section 7 report, I am advised that technically you should disregard its content which I appreciate is not helpful.”

The review officer concluded the review, disregarding the report, and upheld the suitability decision. The review decision in part stated

I refer to R v Oxford CC ex p Doyle (1997) concluding that a Child Arrangement Order does not mean the Children are reasonably expected to live with both parents. I also refer to Holmes-Moorhouse v Richmond Upon Thames LBC (2009) where it was held that while the housing authority should have regard to a shared residence order, it remains a matter for the authority to decide in the context of a scheme for housing the homeless whether the children can reasonably be expected to reside with one parent when they already have a home with the other. It was also set out that the authority cannot be dictated to by the existence of a residence order.

Mr Q appealed. At the s.204 appeal, the Judge held that

a) the review officer should have sent a ‘minded to’ letter, as the original decision had a deficiency, at least retrospectively, given the potential significance of the CAFCASS report; and

b) that the original offer did not comply with section 193(7F) and (8) Housing Act 1996 in that the council had not satisfied itself that Mr Q could terminate his then temporary accommodation before being required to take up the offer.

Cambridge appealed to the Court of Appeal.

The Court of Appeal allowed the appeal.

On the CAFCASS report

In the present case, it is not suggested that an order has been made authorising disclosure of the Cafcass report to the Council. Nor do the FPR provide for such disclosure. While, therefore, I do not doubt that Mr Querino’s solicitors believed it to be proper to supply the reviewer with the Cafcass report, they were mistaken about this. The provision of the report to the reviewer was not in fact permissible. It must follow, I think, that the reviewer was not entitled to have regard to its contents.

This in turn meant that no ‘minded to’ letter was required.

Should, however, the simple fact that there was now known to be a Cafcass report of which the original decision-maker had not been aware have led the reviewer to discern a “deficiency”? I do not think so. Holmes-Moorhouse indicates that “the needs of the children will have to be exceptional before a housing authority will decide that it is reasonable to expect an applicant to be provided with accommodation for them which will stand empty for at least half of the time” and, consistently with that, the Policy states that children living between parents at separate addresses “will only be considered as having one main home unless there are exceptional circumstances that mean that both parents should provide a home” and that “[a] Court Order allowing access to children, or confirming residence between separated parents, does not mean that Cambridge City Council must consider that the child is part of an applicant’s household for the purposes of a housing register application”. In the circumstances, the mere fact that a Cafcass report relating to children of an applicant has been prepared, or emerged, will not suggest that there was “something lacking” in the original decision “of sufficient importance to the fairness of the procedure to justify an extra procedural safeguard”. There would, as it seems to me, have to be something further pointing to “exceptional” needs or circumstances before there would be good reason to conclude that there was a “deficiency”. If a Court order providing for shared residence would not compel a housing authority to provide a property large enough to accommodate the children, I do not see why the emergence of a Cafcass report, whose contents could not be taken into account and the recommendations in which might not be adopted by the Court, should of itself be deemed sufficiently important to necessitate a “minded to” letter.

(The ‘exceptional needs or circumstances’ reference is to Holmes-Moorhouse v Richmond upon Thames London Borough Council (2009) UKHL 7 (our note)).

The fact that the review officer had not considered the CAFCASS report did not vitiate her decision. The Judge on first appeal had held that it was an importnant document both as to the facts it contained and the opinions it expressed. However, the Judge was in error as to the status of the document and whether it was disclosable.

In any event, while the review could have been delayed until the next hearing in the Family proceedings and a potential application to allow the report to be disclosed, the review officer had been clear that a shared residence order, if one were to be made, would not alter her decision, stating

i) “it is my finding that should a final Child Arrangement Order be granted giving shared time spent with of up to 50% it would not be reasonable to expect your children to reside with you as well as residing with their mother [in Coton], where any additional bedrooms allocated in respect of the children staying with you would in practice unoccupied for up to half the week”;

ii) “Even looking to the longer term and the prospect that you may be successful, and the court may issue an order granting shared residency, such an order would not be binding on the Authority”; and

iii) “Were the family court to issue a final court order acknowledging shared parenting and staying access of up to 50%, based on the information available to me at this time I am satisfied that it would still not be reasonable to expect your children to reside with you and allocate additional bedroom space”.

The review officer was fully entitled to take this view, in the absence of ‘something exceptional’ about the circumstances or the children’s needs.

On the s.193(7F) point, there could be no doubt that the council was satisfied that s.193(8) was satisfied, such that Mr Q could end his current accommodation before the date he was required to accept the offer, as the council was the landlord of the temproary accommodation, as well as the offered property.

Secondly, s.193(7F) only applied for a ‘final offer for the purposes of subsection (7)’, hence when refusal of an offer would bring a duty to an end. But that was not the case here, where Mr Q had accepted the offer.

In the present case, however, subsection (7) is not in point. There is no question of the main housing duty which the Council owed to Mr Querino having ceased pursuant to subsection (7). The Council’s case is rather that the duty came to an end under subsection (6)(c) as a result of Mr Querino accepting its offer. Subsections (7A), (7F) and (8) are not stated to apply in such a situation, and there is sense in their not doing so. Thus, where an offer of accommodation under Part 6 has been accepted, it can rationally be thought irrelevant that the offer was not made in writing, that it did not state that it was a final offer for the purposes of subsection (7) or that the housing authority was not satisfied that subsection (8) was not in point. That subsections (7F) and (8) should be so interpreted is also, I think, consistent with their origins. They can be traced back to provisions dealing with whether it had been reasonable for an applicant to accept an offer for the purpose of determining whether the main housing duty had ceased as a result of such a refusal.

Appeal allowed.