Slater v London Borough of Lewisham [2006] EWCA Civ 394

Case No B2/2005/1707[2006] EWCA Civ 394
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON COUNTY COURT
HHJ MEDAWAR QC
5cl52456
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday, 12 th April 2006
Before
THE RT HON. LORD JUSTICE WARDTHE RT HON. SIR MARTIN NOURSETHE RT HON. SIR CHARLES MANTELL
Between
SHAHN SLATERLONDON BOROUGH OF LEWISHAM
(Transcript of the Handed Down Judgment ofSmith Bernal WordWave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7421 4040 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Donald Broatch (instructed by Kath Nicholson, London Borough of Lewisham) for appellantJamie Burton (instructed by Morrison Spowart) for respondent
Judgment

The issues in this appeal

[1]This is another case concerning appeals to the county court against a housing authority’s review of its decision as to the suitability of accommodation offered to a homeless person under the Housing Act 1996, as amended. Here the London Borough of Lewisham (“the authority”) confirmed its decision that it had discharged its duty to secure that accommodation was available for occupation by Ms Shahn Slater in the light of her refusal to accept the property offered to her which the authority considered to be suitable for her needs. This appeal is brought against a declaration made by HHJ Medawar Q.C. sitting at the Central London County Court on 21st July 2005 that:
“The renewed decision is varied by a declaration that it was not reasonable for Ms Slater to accept accommodation at 35 Gerard House SE14 5HT.”
The result is that the authority will have to find another property to offer Ms Slater. The authority appeals with permission granted by Mummery L.J..[2]This appeal raises three issues.(1) Before the authority can be said to have discharged its duty to make a final offer of accommodation, must it be satisfied pursuant to s. 193(7F) of the Act not only that the accommodation was suitable for the applicant but also that it was reasonable for the applicant to accept the offer?(2) If it had to be satisfied of the unreasonableness of the refusal to accept the offer, did the reviewing officer so satisfy himself in this case?(3) If not, was the judge entitled to make the declaration he did or should he have remitted the matter for further consideration by the authority?[3]S. 193 deals with the duty to persons with priority need who are not homeless intentionally and it provides, so far as is material: “(2) Unless the authority refer the application to another local housing authority (see section 198), they shall secure that accommodation is available for occupation by the applicant. … (7) The local housing authority shall also cease to be subject to the duty under this section if the applicant, having been informed of the possible consequence of refusal and of his right to request a review of the suitability of the accommodation, refuses an offer of accommodation under Part 6. (7F) The local housing authority shall not – (a) make a final offer of accommodation under Part 6 for the purposes of subsection (7) … unless they are satisfied that the accommodation is suitable for the applicant and that it is reasonable for him to accept the offer. (8) For the purposes of subsection (7F) an applicant may reasonably be expected to accept an offer … even though he is under contractual or other obligations in respect of his existing accommodation, provided he is able to bring those obligations to an end before he is required to take up the offer.” (a) make a final offer of accommodation under Part 6 for the purposes of subsection (7) …

The factual background

[4]Because we must review the judge’s declaration, it is necessary to set out the material facts fairly fully. The story begins in about June 2000 when Ms Slater, then only seventeen, met the twenty-one year old Damien Winney and soon established a relationship with him. After a matter of weeks he began to stay with her at her parents’ home in Bellingham which is within the London Borough of Lewisham.[5]The relationship was tempestuous as Winney was a rather violent young man. Ms Slater’s parents were thoroughly disapproving of his aggressive behaviour, his coming and going and his failure to maintain regular employment. After about six months they asked him to leave their house. That did not stop Ms Slater continuing to see him and the relationship continued. The parents were not best pleased when they discovered early in 2003 that Shahn was pregnant. They asked her to leave home and in April 2003, threatened with homelessness, she applied to the authority for accommodation as one unintentionally homeless. The application form set out the sixteen neighbourhoods which make up the Lewisham Borough and the applicant was advised that she might state whether there were any special reasons why she should not be rehoused in any of those neighbourhoods, for example, because she was “fleeing violence from an ex-partner”. She believed that Winney had been living with his friends Kenny and Dean in the New Cross area and so she requested not to be accommodated in the Woodpecker or Kender districts both in the north of the borough in the area of New Cross because “father [of her expected child] was last known round that way”. Her stated preference was to be rehoused in the Downham, Bellingham or Grove Park areas in the south of the borough where she could enjoy the support of her family and friends. The authority soon acknowledged that she was homeless, eligible for assistance and in priority need. They were thus under a duty to secure that accommodation was available for occupation by her.[6]In August 2003, by then heavily pregnant, she was offered a one-bedroomed flat on the third floor of a building without a lift in the Brockley area. She accepted it.[7]On 16th September 2003 her first daughter, Ellie, was born. She had remained in peripatetic contact with Winney but the difficulties between them continued. In October 2003, he broke into her flat and removed some of the contents. The police were called. For the sake of the baby she agreed to attempt a reconciliation towards the end of 2003. She was soon pregnant again. The reconciliation was short-lived and the parties appear finally to have separated some time in the summer of 2004. He visited on the occasion of Ellie’s first birthday and said he was still living with friends in the New Cross Gate area. In October 2004 he visited and was so threatening that she locked herself in the bathroom. Her neighbours hearing the disturbance called the police. She saw him again in November loitering near her home and she hid away because she was by then very frightened of him. He had on a number of occasions grabbed her by the throat and on other occasions had slapped her about the head.[8]Concerned about being able to manage with a second child in cramped conditions, she pressed the housing department for a decision. She was delivered of her second child by Caesarean section on 9th November 2004. She went home for a few weeks to enjoy her mother’s help and assistance.[9]At about that time the authority offered Ms Slater the accommodation at 35 Gerard House on the Kender estate. She rejected it on 19th November 2004, pointing out not only that the property was not close to her family and friends whose support she needed but also because:
“I’ve had problems with my babies’ father … I do not know his address but he has been around the New Cross, Brockley, Peckham areas as this is where his friends are. As I do not wish to be involved with him I wouldn’t feel safe in these areas.”
She asked for the decision to be reviewed.[10]That review was carried out on 24th November 2004. The decision was to re-offer the property to her. The decision letter contained these assertions:
“We note that you were able to supply us with crime numbers pertaining to alleged incidents of abuse from your children’s father, but due to the nature of the incidents were are unable to reverse our decision. Furthermore you were unable to substantiate your claim that neither [sic] your ex-partner or his friends resided in the New Cross area.”
She was warned that she would not get any further help and that if she refused to accept what was on offer, she would have to find her own accommodation.[11]She still did not take up the offer but instead sought a review of the discharge component of the decision-letter and also appealed to the county court pursuant to s. 204 of the Act.[12]Her witness statement dated 16th December 2004 confirmed her belief that Winney lived in the New Cross area saying:
“Whilst I do not know Damien’s exact address I know he lives near New Cross Gate station, as do many of his friends and it would simply be a matter of time before he finds me. The respondents also state in their review decision that I was unable to substantiate my claim that Damien or his friends live in the New Cross area. That is true, whilst I do not have exact addresses I just know from conversation with Damien and his friends the location of where they live. The fact is I know that is where they are currently living.”
[13]On 29th December 2004 Winney once again broke into her flat. Once again the police were called. This time Ms Slater took action to protect her position and she was granted an injunction restraining him from entering or attempting to enter her flat or to go within 25 metres of it. He was also forbidden to use or threaten violence against her or instruct or encourage any other person to do so. This injunction was to continue until 10th January 2006. The court also granted a power of arrest. Although Winney had told the police he was living with his parents whose home, like Ms Slater’s parents’, was in the Bellingham area, the injunction could not be served on him there because his parents denied that he was living with them and service had to be effected on him when he answered to his bail at the police station.[14]On 21st February Ms Slater filed a second witness statement giving more detail of the violence to which she had been subjected at Winney’s hands. She confirmed:
“I know that he does not live with his parents, he lives somewhere in New Cross Gate.”
[15]On 1st March 2005 the authority confirmed its decision on the review of the discharge component of the decision letter of 24th November 2004, stating:
“Ms Slater was unable to give us any information whatsoever as to her ex-partner’s whereabouts at the time of the nomination and subsequent offer we had no reason to believe that Ms Slater was in any danger. We were not in a position to exclude any areas for her.”
[16]The reviewing officer then filed her evidence in the county court stating that:
“My investigation has revealed that Mr Winney is registered at 166 Firhill Road SE6 3SQ [his parents’ home]. This address is in the Bellingham area which is one of Ms Slater’s preferred areas for re-housing. We obtained this information from the Electoral Register 2005. Further information was obtained from the Job Centre confirming that Mr Winney was claiming Jobseeker’s Allowance when it stopped on 19th November 2004. The police confirm Mr Winney’s address was 166 Firhill Road when they last made contact with him in January 2005.”
We were told that payments were made by bank giros sent to his parents’ home but Mr Burton, counsel for Ms Slater, was able to satisfy us that giros were no longer being used for payment of Jobseeker’s Allowance at the material time: payments were by then being made direct to the claimant’s bank account.[17]On 17th March 2005 the appeal to the county court was withdrawn upon the parties:
“… agreeing that the respondent withdraw their section 202 decision of 24th November 2004 and undertake a further statutory review with full appeal rights, such review to be undertaken by a different officer to the one who undertook the review of 24th November 2004 …”
The authority later withdrew their decision of 1st March.[18]In the course of this fresh review by the authority Mr Umunna, who was conducting the review, wrote to Ms Slater on 27th April 2005 stating:
“I have carried out detailed enquiries as to where Damien lives and the information at hand suggests that he does not live in any of the neighbourhoods. In fact he lives in Sydenham and Bellingham area. I am minded to reach a decision against your interest unless you have new information that suggests that Damien lives in the above neighbourhood.”
On 9th May the authority disclosed the results of further enquiries it had made saying that Mr Winney had made a homeless application to the authority and it seems that he gave five addresses where he had been living in the previous years. One was with Ms Slater in her flat, another was with her parents, the third was with his parents, the fourth was with a female friend in Sydenham with whom he had lived in the week before he made his application and the fifth was not disclosed to Ms Slater. The authority acknowledged that he may not have resided with his parents at the time he was served with the injunction, that appearing to be consistent with the information that he was living with his female friend in Sydenham.[19]On 12th May Ms Slater’s solicitors wrote giving the reviewing officer further information. This was that accompanied by her mother she approached the sister of one of Mr Winney’s friends on 10th May and learnt that Kenny and Dean were living with their uncle and aunt named Olive. An address was given. It was 32 Vansittart Street at the back of New Cross and New Cross Gate stations.[20]On 23rd May Mr Winney senior provided a witness statement saying that Damien had not lived at home for many years and that he, his father, did not have very much to do with him. In conversations with his other son Martin and their friends who were closer to Damien than he was, it was mentioned that he frequently stayed in the New Cross area in property either owned or rented by friends. Mr Winney believed that Damien stayed there for weeks or days at a time. The last time he was told in a conversation with Damien’s friends that Damien was living in the New Cross area was only a couple of weeks previously.[21]On 31st May 2005 the authority concluded its review and wrote a long letter to explain why the reviewing officer had decided that it had discharged its duty and why no further offer of accommodation would be made. It will be necessary to consider that letter in more depth later in this judgment. In summary, Mr Umunna stated that the accommodation at 35 Gerard House was suitable in terms of space, location and floor level. Though it was seven miles away from her parents’ home, the area was served by “good public transport”. He accepted that Ms Slater may have felt threatened with violence from Damien but he was not persuaded that accommodation in New Cross would put her at more risk of threatening behaviour from him than if accommodation were offered elsewhere in the borough. He believed that Damien had no fixed abode and that he moved from once place to another but he was reasonably satisfied that most of his contacts were in the Bellingham and Sydenham area and not in New Cross. He disclosed that he had visited the address of Kenny’s aunt and uncle but the old age pensioner he interviewed there confirmed that Damien had never lived there and he did not know Kenny or Dean. There was nothing to suggest that Damien had lived in the past or was living at present in New Cross. Consequently he concluded:
“I have considered all the issues raised by you but cannot accept that any of them individually or in combination make the offer of 35 Gerard House SE14 unsuitable. As a result, I am not persuaded by your argument that the offer of 35 Gerard House is [an] unsuitable offer.”
[22]Exercising her right to appeal that review decision, Ms Slater began these proceedings in the county court leading to the order I have recited.[23]Mr Penfold, Ms Slater’s solicitor, filed a witness statement dated 1st July 2005 in which he said that he and Ms Slater attended 32 Vansittart Street and met Olive and her partner, the elderly and not very well Mr Lewis. Olive said that Dean was her cousin and Kenny was a friend. She confirmed that Damien Winney had stayed at 32 Vansittart Street, the first time would have been in early 2003 and he was last seen at the property the previous weekend, 18th and 19th June 2005. He had never really lived there though he had stayed for about six or seven months in 2003 and at other times during 2004. Mr Lewis himself acknowledged of Damien’s presence, “He comes and he goes.” Mr Lewis gave a rambling explanation for not disclosing this to the authority when they interviewed him, the gist being that he thought they were saying that he was “a batty man”, Jamaican slang for being a homosexual, and Mr Lewis resented the innuendo. He inferred from the conversation that the authority were suggesting he was living immorally with Damien. Mr Lewis was, however, unwell having recently been discharged from hospital after suffering a stroke.

The judgment under appeal

[24]It is a short and characteristically robust judgment.

The judge held:

“6. Although superficially thorough, the eight page review decision letter nowhere specifically deals with the question of reasonableness as to the acceptance of the offer of accommodation: see the requirements of s. 193(7F)(a) and (b), making it necessary for the local authority to be “satisfied” that the accommodation is suitable for the applicant and it is reasonable for him to accept the offer”. 7. Despite Mr Broatch’s valiant efforts to persuade the court that this might be inferred from the contents of the review letter, I am driven to conclude that the respondent’s decision that its duty to the appellant had been brought to an end by the further offer of suitable accommodation, failed to direct itself as to both limbs of s. 193(7F) as in Wilson-Webb v Kensington and Chelsea RLBC. 8. The review officer had failed to show that he had considered acceptability, i.e. that it was reasonable for Ms Slater to accept the offer.”
[25]Dealing with the appropriate remedy, he said:
“10. Here the amount of evidential material pointing to the inevitable conclusion that it was reasonable for the appellant not to accept this accommodation is, to my mind, overwhelming. It is questionable whether the accommodation could be categorised as “suitable”, but I do not seek to gainsay the conclusion ostensibly reached in the review decision as to that. The respondent failed to disclose enquiries, the falsity of the information gained which would have come to light before the review decision was given and not subsequently, as the appellant’s solicitor, Mr Penfold was discover and disclose. 11. The respondent failed to give the appellant the benefit of any doubt there might be about Mr Winney, her violent and abusive ex-partner having connections with the New Cross area such as to pose a threat to her were she required to live there. 12. As I say, no reasonable local authority could conclude that it was reasonable for the appellant to accept the accommodation as suitable as opposed to it being objectively suitable. The principle is to be found in Crawley BC v P [2000] 32 HLR 636 where Chadwick LJ at page 651 says: “The question, therefore, is whether the judge was entitled, or required, on the material before him, to do more than simply quash the decision in the letter of 8 October 1998. I would accept that, if that material had shown that the only decision as to its duty to provide accommodation or assistance that the Council, acting rationally, could reach was that the duty was that imposed by section 193(2) of the Act, the judge could properly have pre-empted further consideration by making an order to that effect.” … 14. In this case a decision to vary will pre-empt a further act on the part of the authority which would be wrongful. The history of this matter is such that further delay in this young woman being offered other suitable accommodation ought not to be allowed to occur.”
He made his declaration accordingly. “The question, therefore, is whether the judge was entitled, or required, on the material before him, to do more than simply quash the decision in the letter of 8 October 1998. I would accept that, if that material had shown that the only decision as to its duty to provide accommodation or assistance that the Council, acting rationally, could reach was that the duty was that imposed by section 193(2) of the Act, the judge could properly have pre-empted further consideration by making an order to that effect.”

The proper construction of s. 193(7F)

[26]Mr Donald Broatch, counsel for the Authority, submits that:(1) There is nothing wrong with an authority considering both suitability and reasonableness together. It is perfectly proper to say that premises are suitable, ergo, the applicant is being unreasonable in refusing them. This is because a suitability enquiry includes within its scope: (i) a consideration of any risk of domestic violence touching the particular applicant and (ii) within the parameters of the Act and the Code, the individual circumstances of the applicant.(2) The judge erred in following, as if it correctly set out the law, the county court case of Wilson-Webb v The Kensington and Chelsea RLBC LAG June 1998, 16.(3) There is no need for a separate consideration of the applicant’s wholly subjective reasons for refusal.[27]On behalf of the respondent Mr Jamie Burton submits:(1) If the appellant is correct then the reasonableness limb of s. 193(7F) is superfluous.(2) Wilson-Webb was correctly decided.(3) There is an element of subjectivity in the enquiry but only in the sense that the decision-maker must put himself in the position of the particular applicant and ask whether it was reasonable for her to refuse the offer.[28]I cannot accept Mr Broatch’s submissions. In the first place, the language is to my mind plain and should be given its ordinary meaning. This requires the local housing authority to be “satisfied that … [limb 1, the suitability of the accommodation] “and that … [limb 2 the reasonableness of acceptance].” The use of the word “that” makes it clear that there are two elements of which the decision-maker must be satisfied.[29]As Lord Hoffmann observed in R v London Borough of Brent ex p. Awua (1995) 27 HLR 453, 464, suitability is primarily a matter of space and arrangement though no doubt other matters may also be material. S. 182 of the Act provides that in the exercise of their functions, the local housing authority “shall have regard to such guidance as may from time to time be given by the Secretary of State.” The guidance is given in the Homelessness Code of Guidance for Local Authorities (July 2002) issued by the Office of the Deputy Prime Minister. The Code contains this general advice as to the suitability of the accommodation:
“12.3 The suitability of accommodation for an applicant will be primarily a matter of space and arrangement, but there are other factors which must be taken into account. The question of whether accommodation is suitable requires an assessment of all the qualities of the accommodation in the light of the needs and requirements of the homeless person and his or her family. The location of the accommodation will always be a relevant factor (see paragraph 12.9). 12.4 The accommodation must be suitable in relation to the applicant and to all members of his or her household who normally reside with him or her … Housing authorities should therefore have regard to all the relevant circumstances of the applicant and his or her household. Account will need to be taken of … any social considerations relating to the applicant and his or her household that might affect the suitability of accommodation. Any risk of violence or racial harassment must also be taken into account. … 12.9 … Housing authorities should … wherever possible, secure accommodation that is as close as possible to where they were previously living …”
[30]It is true, therefore, that the particular needs of the applicant, for example, to be protected from domestic violence and to be located near to support networks are relevant when considering suitability. That does not, however, mean, in my judgment, that these personal preferences are material only as aspects of suitability. If the appellant is correct in its submission that if the premises are judged objectively to be suitable therefore it must follow that it is reasonable to refuse the offer, then there is no need to provide for the second limb and the additional words in s. 193(7F), “and that it is reasonable for him to accept the offer” would be otiose. The language simply does not permit that construction.[31]The second reason for rejecting Mr Broatch’s submissions is that they cannot be reconciled with authority in this Court. First there is Warsame v London Borough of Hounslow, an unreported decision of the Court dated 25th June 1999. Although the Court was considering s. 193 (7) and not s. 193 (7F) introduced by the Homelessness Act 2002, the language is identical. Chadwick L.J. said:
“Sub-section (8) makes it clear that the question whether it was reasonable for an applicant to accept accommodation is distinct from the question whether the accommodation was suitable. There may be circumstances in which it is reasonable to refuse to accept accommodation which is suitable. Sub-section (8) gives an example of that.”
[32]Secondly, in The Mayor and Burgesses of the London Borough of Tower Hamlets v Rahanara Begum [2005] EWCA Civ. 116, the Court was again considering s. 193 (7) without the 2002 amendment. Neuberger L.J. expressed his view on the decision letter in that case in paragraph 26 of his judgment. He said:
“ … It referred to the Council "making a reasonable and suitable offer of permanent accommodation", but it made no reference to the opinion that it was or would be reasonable for the respondent to accept the accommodation. … 27. … Further, the section requires the communication to state both that "the accommodation was suitable" for the person concerned, and that "it was reasonable for him to accept it". While I do not suggest that the wording of the communication must slavishly follow those forms of words, it must, in my view, convey both points. I do not think that the 25 January letter quite achieves that: it merely refers to 3 Brimsdown House as amounting to a "reasonable and suitable offer of permanent accommodation". ”
[33]Although the Court did not have to consider the effect of s. 193(7F), the language is so similar that I can see no justification whatever for departing from the ratio of those decisions. That will cause no surprise since I agreed with Neuberger L.J.’s judgment.[34]Finally, I consider Mr Broatch’s reliance on a passage in the judgment of Laws L.J. in Regina (Khatun and ors) v Newham London Borough Council [2005] QB 37 to be misconceived. Laws L.J. said in para 37:
“I am clear that the applicant's subjective view of suitability is not a factor which a reasonable council is obliged in principle to regard as relevant to their decision. … No doubt where an authority operates a procedure by which an applicant is in fact afforded an opportunity to view and comment, it would be difficult see how the authority might then rationally decline to consider what the applicant had to say. Of course I do not suggest that the applicant’s views are not capable of being treated by a reasonable authority as relevant to its decision. I hold only that they are not required by law to be so treated.”
This is a scant justification for disregarding the applicant’s views when the authority has to consider, as in my judgment it must, whether or not it was reasonable for the applicant to accept the offer of what under the first limb of s. 193(7F) had been found to have been suitable accommodation. In judging whether it was unreasonable to refuse such an offer, the decision-maker must have regard to all the personal characteristics of the applicant, her needs, her hopes and her fears and then taking account of those individual aspects, the subjective factors, ask whether it is reasonable, an objective test, for the applicant to accept. The test is whether a right-thinking local housing authority would conclude that it was reasonable that this applicant should have accepted the offer of this accommodation.[35]It follows that in my judgment the judge made no error in his approach and this ground of appeal fails.[36]Despite being in the awkward position of arguing that it was unnecessary for the decision-maker separately to consider whether or not it was reasonable for Ms Slater to accept the offer, Mr Broatch submits that a proper reading of the letter shows that he did have that matter in mind and did decide the question. He submits that the reviewing officer had to address the “subjective element” of the applicant’s fear of domestic violence, but having assessed that risk objectively, he then had to decide whether the claimant’s refusal to accept the accommodation was reasonable in the light of the risk as he assessed it. He says that was properly done and refers to the following paragraphs of the decision letter. “26. I accept that you may have felt threatened with violence from Damien and that as a consequence you decided to take out Restraining Order against him. However I am not persuaded that offering you accommodation in New Cross would have put you at more risk of threatening behaviour from Damien than if accommodation had been offered elsewhere in the borough. …34. There is nothing further suggesting that Damien lived in the past or at present in New Cross. If you feel strongly that the threat of violence from him is eminent [sic], I would have thought that you would have approached another local authority where the chances of him finding you are further reduced. You have not chosen to make a homeless application elsewhere. If you decide to remain in the borough, the Council cannot guarantee that Damien will not find you. I am very satisfied that Damien or his associates do not live in New Cross, Peckham or Brockley. The Council made an offer of accommodation in a part of the borough where I don’t accept that it could be said that you would be at greater risk of violence from Mr Winney than if you were rehoused in an area you expressed a preference for.35. In fact you want to be in Bellinghamwhere it is more likely you will come into contact with Damian – although you do not want to be near 166 Firhill Road [his parents’ address]. Bellingham is quite a small area and my estimation is that it is less than 4 square miles. Other areas you have chosen are bordering Bellingham. I think this kind of request is unusual for someone fleeing violence. If in fact you do not want Damian to know where you are living why then would you choose to live at Bellingham where he has good chances of finding you? Evidence at hand shows that Damien has contacts in the area. I find it difficult to reconcile the fact that you fear violence in New Cross but not in Bellingham where the possibility of Damian finding you is higher.”[37]It is clear from those passages that Mr Umunna did apply his mind to whether or not Ms Slater would be safe in New Cross or at least whether she would be safer in her preferred location.[38]In other parts of his letter the reviewing officer refers to a witness statement from Damien’s father to the effect that he stays in New Cross for weeks or days at a time but that did not persuade Mr Umanna that Damian resided in New Cross Gate. He added, and I am not sure that I understand the purpose of the comment:
“I wish to say that I am disappointed that you will go to such a length to the father of the man you are fleeing violence to obtain a witness statement.”
For my part the approach was wholly understandable. Mr Umanna was of the view that Damian would have had to visit his parents’ home to collect his giro and correspondence in connection with his claim for Jobseeker’s Allowance, but as I have said, Mr Burton, who knows all about these things, has satisfied us that payments were by then being made directly into bank accounts so that was a bad point made by Mr Umanna.[39]He added in paragraph 40 that:
“… I believe that Damien has no fixed abode and that he tends to move from one place to another. In my experience of working with homeless Families/Individuals for more than fifteen years, it is not unusual for a single man with no fixed abode to move around in this way. I am reasonably satisfied that Damien’s contacts are mostly in Bellingham and Sydenham but he could be anywhere in this borough or in the country.”
[40]In paragraph 33 he said:
“I carried out a tenancy check at 32 Vansittart Street SE14 and the authorised tenant is an old-age pensioner (OAP) and has been in occupation for more than 20 years. This tenant has a sole tenancy. The Council Tax register is registered in his name. I checked the Electoral Register and he is the voter on that address. I further carried out unannounced home visit and spoke to him. The OAP confirms that Mr Winney has never lived there and he does not know him. He further stated that he has never known Kenny, Dean and their baby sister or their mother. They have never lived there and he has never rented rooms to them. A family relation of the tenant who met us there confirmed the same that Damien and his associates have never lived there.”
[41]When one searches this letter for his conclusions I am satisfied that the conclusion is expressed in paragraph 45 in these terms:
“I have considered all the issues raised by you but cannot accept that any of them individually or in combination make the offer of 35 Gerrard House SE14 unsuitable. As a result, I am not persuaded by your argument that the offer of 35 Gerrard House is [an] unsuitable offer.”
In my judgment that does not address the second limb of s. 193(7F) adequately or at all. The first sentence is clearly concerned only with the suitability of the accommodation – the first limb of the sub-section. Use of the words “As a result …” show how closely the decision-maker was doing what Mr Broatch suggested in his primary suggestion to this Court he was entitled to do, namely consider suitability and then say if suitable, ergo, it would be reasonable for the applicant to accept the offer. “I am not persuaded by your argument that the offer is [an] unsuitable offer” is not enough to indicate that Mr Umanna actually applied his mind to the second question as a separate element and although, as we said in Rahanara Begum, it is not necessary slavishly to follow the words of the sub-section, nonetheless there must be sufficient in the document read as a whole to show that both limbs were separately and properly considered. In my judgment Mr Umanna did not do that.[42]It follows that the authority’s appeal should be dismissed, subject to the third issue which is before us.[43]The court’s proper approach to this question has been considered on a number of occasions and the authorities reviewed in London Borough of Tower Hamlets v Deugi [2006] EWCA Civ. 159 where May L.J. defined a question to be:
“whether there was any real prospect that Tower Hamlets, acting rationally, and with the benefit of further enquiry, might have been satisfied that Mrs Deugi was intentionally homeless.”
He continued:
“37. I express the question thus, conscious that close analysis of three decisions of this Court could raise something of a debate. I have already set out in paragraph 28 Chadwick LJ’s approach in [Crawley BC v B (2000) 32 HLR 636, 651] – “… the only decision … that the council, acting rationally, could reach.”
In Bond v Leicester City Council (2002) HLR 158 at 168, Hale LJ expressed her conclusion as “… more likely than not that if the authority had asked themselves the right question they would have reached the conclusion …”. The submission made in Bond was in terms of “the only possible conclusion” (see page 167); and it looks as if Hale LJ was influenced by the definition of domestic violence in s. 177 of the 1996 Act. In Ekwuru v Westminster C.C. (2004) HLR 98 at 205, Schiemann LJ held that “there is no real prospect of the authority turning up further material which would entitle it to reach the conclusion that …”. My formulation, which may perhaps be seen as an amalgam of Chadwick LJ and Schiemann LJ, is intended to reflect the fact that this appeal process is in the nature of judicial review.”[44]It is not submitted that the judge in our case misdirected himself. The argument is rather that he is plainly wrong. I do not consider that he was though, as I have said, he can be criticised for being perfunctory in setting out the facts and his reasons for his conclusion.[45]The position is this. The local authority properly directing itself would have to ask whether a right-thinking housing authority would conclude that it was reasonable for this applicant to have accepted this offer of accommodation. It is important to stress timing: the time at which the matter is to be judged is the time when the offer was rejected - in this case November/December 2004. It follows that the reasonableness of Ms Slater’s refusal is to be judged in the light of the facts which it was reasonable for her to believe at that point in time. Subsequent information is relevant only in so far as it throws light on the reasonableness of her state of knowledge and belief at that time.[46]It is material to note that the local authority had accepted in paragraph 26 of the decision letter that Ms Slater did feel threatened by Damian Winney. Thus the thrust of the appellant’s case, as it is indeed put in paragraph 26 of the decision letter, is that it was well within the range of reasonable responses for the authority to have concluded that she was not at greater risk of domestic violence in the New Cross Gate area than in Bellingham, or indeed in any other part of the borough and it was, therefore, not reasonable for her to reject the offer on the ground that New Cross Gate presented a greater risk to her.[47]An analysis of the facts shows this. Her fears were based on:(1) information given to her by the friends and family of Damian Winney.(2) Her belief, subsequently confirmed by Mr Winney senior that Damian had no contact with his family at their home in Bellingham.(3) Damian himself telling her when he visited on 16th September 2004 on the occasion of Ellie’s birthday that he was staying in the New Cross area.[48]The local authority counter this information with the following:(1) they connect Damian to his parents’ home through his giving that address on an application for Jobseeker’s Allowance and rely on the fact that giros would have been sent to his parents’ address and therefore collected by him fortnightly. This is shown to be wrong given the fact that payments are made directly into his bank account.(2) The local authority obtained information from Damien’s claim to be homeless made, it should be noted, in November of 2004, which is very much the relevant time. Of the five addresses he gave for his residence in the preceding year, three can be discounted, namely Ms Slater’s flat, her parents’ home and his parents’ home, the fourth was the girlfriend’s flat where he had stayed only for the week prior to his application. There is no suggestion of long-standing connection there. Little information is given about the fifth address save that it was, I think, also in Sydenham, but the lack of information provided by the local authority must suggest that they could not establish a substantial link with that property. He had obviously, of course, left it – that is why he was claiming to be homeless.(3) Damian’s general practitioner had been the family doctor and he gave his address as his parents’ home. That does not prove much. Subsequently it was discovered that in May 2005 he transferred his registration to somewhere in West Sussex. His subsequent move from the area can have no relevance to where he was, or where reasonably it could be thought he was before his move.(4) Finally there is the matter of his connection with the property at Vansittart Street just behind New Cross station. It will be recalled that Ms Slater was pressed by her solicitor to make further enquiries and discovered from the sister of one of Damian’s friends on 10th May 2005 that he had been staying there. When Mr Umanna went to that address the old-age pensioner disclaimed any knowledge of Damian. On 3rd June Ms Slater and her brother went there and the occupants on this occasion stated that Damian used to stay with his friend Kenny at that address. Mr Penfold her solicitor conducted his own enquiries and was informed, as the old-age pensioner expressed it, “he comes and he goes.”[49]What would a right-thinking housing authority make of this evidence? In my judgment, a reasonable authority would be bound to draw these occlusions:(1) the preponderance of the evidence is that Damian did stay from time to time at Vansittart Street, but even if one puts it at its lowest and draws only the conclusion that it was uncertain whether he had a connection with that property, that would not permit the conclusion that Ms Slater’s belief was unreasonable. She had ample material to support her belief.(2) The fact of his change of residence to West Sussex in May 2005 could not bear upon her belief that he was still on his old stamping ground at the material time.(3) Having discounted those two matters the only reasonable conclusion must be that her fear that he frequented the New Cross area and that she was at greater risk in there was a reasonable one and it justified her decision to refuse to live in the very area she had asked the authority to avoid for her peace of mind. On that evidence (which the judge described as “overwhelming”) no reasonable authority could conclude that it was within the band of reasonable band of decisions to find that her belief that she would be at greater risk in New Cross Gate than elsewhere in the borough was an unreasonable belief.[50]It follows that there is no real prospect that the appellant, acting rationally, and with the benefit of any further enquiries it might reasonably make, could conclude that it was satisfied that it was reasonable for this young lady to accept this offer of accommodation. The judge was right so to decide.[51]The result is that this appeal must be dismissed.

Sir Martin Nourse:

[52]I agree.

Sir Charles Mantell:

[53]I also agree.

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