Abed v City of Westminster [2011] EWCA Civ 1406

Case No B5 / 2011 / 0437[2011] EWCA Civ 1406
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON CIVIL JUSTICE CENTRE
HIS HONOUR JUDGE BAUCHER
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday 9 th November 2011
Before
LORD JUSTICE WARDLORD JUSTICE LLOYDLORD JUSTICE KITCHIN
Between
Zahra AbedAppellantCity of WestminsterRespondent
( DAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No : 020 7404 1400 Fax No : 020 7831 8838Official Shorthand Writers to the Court )
Mr K Gannon (instructed by Law and Advocacy) appeared for Appellant.Mr G Pryce (instructed by City of Westminster Legal Services) appeared for Respondent.
Judgment
[1]This is an appeal under Part 7 of the Housing Act 1996 where the issue is as to the suitability of the accommodation offered to the appellant by Westminster City Council. HHJ Baucher dismissed the appellant's appeal on 2 February this year and she appeals with permission granted by Rimer LJ. A number of points were argued in the court below, but before us there is only one ground of appeal which contends that Westminster followed an unlawful process in offering accommodation to the appellant at the first stage without having first made an assessment of the suitability of the accommodation for her needs. On the appeal Mr Kevin Gannon appears for the appellant, and Mr Gary Pryce for Westminster.[2]The facts in brief, so far as relevant, are these. The appellant, born on 10 February 1981, came from Iraq to join her husband in the United Kingdom in July 2008. Their son Mohamed had been born on 30 January 2008. As a result of domestic violence the appellant left her husband and applied to Westminster to be housed as homeless with her son. Late in 2009 she was granted indefinite leave to remain in the United Kingdom and she then applied again to Westminster. At that stage it accepted the duty under Part 7 of the Housing Act following her completing an application form at an interview on 22 December 2009. On 11 February 2010 Westminster offered her, as temporary accommodation, 87 Green Lane, Ilford. The appellant considered that this accommodation was not suitable for her needs, she did not accept it and she requested a review of the decision. She was acting as carer three hours a day, five days a week for a disabled nephew of hers in Paddington. She signed a form as to why the accommodation was not suitable and asking for a medical assessment on 18 February 2010. She referred to medical conditions from which she suffers and to her son's asthma. She also said the premises were too far from Westminster where she would go every weekday, as I say, to act as a carer for her nephew. She did not receive any payment or allowance for this work, but she relied on support from her uncle (the father of the nephew) since she had left her husband and was therefore presumably providing care in return.[3]Westminster reviewed the decision and maintained it by a review letter of 28 April 2010. The appellant appealed against that. By way of compromise of that appeal a further review was carried out. That came to the same decision in a letter of 8 October 2010. The present appeal was brought against that decision. The Legislation.[4]Westminster accepts that it is under a duty to the appellant under Part 7 of the Housing Act 1996. She is now eligible for assistance, homeless, in priority need and is not someone who was found to have become homeless intentionally. Under section 193(2) in such a case, unless the authority refers the application to another local housing authority, they shall secure that accommodation is available for occupation by the applicant.[5]Section 193 of the Housing Act provides:
"(3) The authority is subject to the duty under this section until it ceases by virtue of any of the following provisions of this section." "(5) The local housing authority shall cease to be subject to the duty under this section if the applicant, having been informed by the authority 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 which the authority are satisfied is suitable for him and the authority notify him that they regard themselves as having discharged their duty under this section."
[6]Section 206 of the Housing Act provides:
"(1) A local housing authority may discharge their housing functions under this Part only in the following ways - (a) by securing that suitable accommodation provided by them is available (b) by securing that he obtains suitable accommodation from some other person, or (c) [which is not relevant to the particular case]"
[7]There is a contrast between section 193(5) and section 193(7) which deals with the consequences of refusal of a final offer of accommodation under Part 6 of the Act. Subsection 193(7) is followed by a sequence of sections, inserted in its present form by the Homelessness Act 2002, the last of which is subsection 193(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 and to accept the offer."
[8]I suspect that that is only a presentational change from the previous version of subsection (7) which was in much the same terms as subsection (5) except that it included the requirement that the authority had to be satisfied that it was reasonable for the applicant to accept the offer. How much difference, if any, is made by the change of wording it is unnecessary to consider for present purposes.[9]The right to a review of the suitability of accommodation is given by section 202(1), taken with subsection (1A) which ensures that the right to request a review is regardless of whether the offer has been accepted or not. The procedure for a review is governed by section 203 and the right of appeal is afforded by section 204(1) as follows:
"If an applicant who has requested a review under section 202 - (a) is dissatisfied with the decision on the review, or (b) is not notified of the decision on the review within the time described under section 203, he may appeal to the County Court on any point of law arising from the decision or, as the case may be, the original decision."
[10]Mr Gannon accepted, I am sure rightly, that the reference to an appeal on a point of law arising from the original decision refers to the case specified in subsection (1)(b) where the local housing authority has not notified the applicant of the decision on the review within the prescribed time, so that there is no decision on the review against which to appeal. I mention, though only of peripheral relevance, section 208(1) which provides that:
"So far as reasonably practicable a local housing authority shall in discharging their housing functions under this Part secure that accommodation is available for the occupation of the applicant in their district."
[11]Some factors relevant to assessing suitability were laid down by the Homelessness (Suitability of Accommodation) Order 1996 made under section 210, but none of these have any particular bearing on the issues in this case.[12]Henry J in R v London Borough of Brent, ex parte Omar [1991] 23 HLR 446 at page 457 made useful general observations as to the content of the requirement of suitability. Nothing turns in this appeal, it may be thought surprisingly, on whether the accommodation offered in fact matched the requirement of suitability. Westminster's offer letter of 11 February 2010 described the accommodation as being a two-bedroomed house suitable for up to two people. It said:
"There is a severe shortage of accommodation in Westminster and it is not reasonably practicable for us to offer a Westminster home to everyone who applies for one. That is why we have had to offer you accommodation in Newham. Although it is outside Westminster, having considered your circumstances, we believe this accommodation is suitable for you."
[13]As required by the Act, later on the same page, under the heading, "If you think this property is unsuitable", the letter said this:
"We have decided this property is suitable for you and it is reasonable for you to accept it. If you disagree, you can ask us to review our decision. Section 202 of the Housing Act 1996 gives you this right. You may tell us why you think the property is unsuitable and give us new information to support your case. If you wish you can get someone to put your case forward on your behalf."
[14]As I have mentioned, the appellant did exercise that right. The eventual result was the review letter of 8 October 2010. It described the information taken into consideration by the reviewing officer. It summarised the reasons put forward by the appellant for not regarding the accommodation as suitable. The main reasons were firstly that the property was too far away from Westminster where she went regularly to care for the disabled nephew, and secondly that the property was too far away from the hospital which she attended in order to be treated for her own medical difficulties. The review letter assessed the extent of the need for the appellant to care for the nephew as being supplementary rather than essential. The letter came to the conclusion that the distance was not unreasonable in any event. So far as the hospital was concerned again the distance required for travel was not found to be unreasonable, quite apart from the possibility that the appellant might find a new doctor and a new hospital able to care for her nearer to the accommodation offered to her in Ilford. A number of other particular factors were addressed, none of which was found to make the property unsuitable for the appellant's needs.[15]The appeal to the County Court was based on several grounds, in particular as to the inadequacy of the review. On this second appeal only one point is at issue and for that reason -- meaning no disrespect to the County Court Judge -- I need not refer to her judgment. It seems to me, and I think Mr Gannon accepts this, that the argument is rather different from those considered below. Indeed it had not been put as such to the judge below. The single issue is that Westminster followed an unlawful process in making its offer to the appellant because it did not assess the suitability of the accommodation for her needs before making the offer. Thus the entire focus is on the position on, and before, the date of the offer on 11 February 2010. No criticism is addressed to the review process or to the review decision as such. In terms Mr Gannon contends that the ability to challenge the suitability of an offer by way of the review process of the appeal is not an adequate substitute for ensuring that the inquiry and assessment process as regards suitability should take place before the initial offer is made.[16]Mr Gannon relies in particular on observations of Collins J in R v Newham London Borough Council, ex parte Ojuri (No 3) (1998) 31 HLR 452, particularly at pages 458 to 459. That was a case about suitability of accommodation, and it was said that Newham had failed to address properly the question of suitability before making an offer of accommodation. At the bottom of page 458 Collins J said:
"It seems to me that the important aspect is the approach that must be adopted. Newham must have regard to the individual circumstances of the applicant and his family. It has to apply its mind to what is suitable for that family. What happened here was that they were offered what was available and what was available happened to be, when the application was made, merely this bed and breakfast. It seems to me implicit in the approach that has been adopted by the local authority, in as much that it indicates the applicant and his family were lucky to get this rather good bed and breakfast accommodation, that they might well have found themselves much further away and in much worse bed and breakfast accommodation. What did not happen was the assessment that, in my judgment, is required by the Act. Full and proper details should have been taken and full consideration should have been given to all the relevant factors which went to suitability. It may be that if they had been the same result would have been reached because of the unavailability of any more suitable accommodation. What is said here, however, is that there was somewhere else available, namely 49 Alexandra Road. Mr Ojuri and his family had just been evicted from it. No one else had come into it. It would have been the easiest thing in the world for the council to have got in touch with the housing association and said, "
Wait, we have a fresh application." At page 463

the judge said:

"I have already indicated that I accept that the evidence is such that it is clear that the local authority, and I can understand why, did not consider specifically, as it should have done, the needs of this particular family and try to marry those needs to whatever might have been available. It may be that it would have been necessary to defer a decision for a day or two and put them up for a day or two somewhere."
Passing over a few sentences he then said:
"That being so the applicant has lost the chance of obtaining accommodation which might have been much more suitable for his needs and it seems to me that, in those circumstances, he is entitled to have his application considered on a proper basis."
Therefore he quashed the council's decision.[17]That was a case concerned with the local authority's very temporary duty under section 188 to which the review and appeal procedure did not apply. Accordingly the only remedy was the remedy that had been available before the new statutory regime of administrative review, namely a full judicial review application. It seems to me that although that may be taken as a helpful indication of the nature of the duty of the local authority before it makes an offer of accommodation, it cannot be taken as a precedent for the proposition that if the local authority fails to discharge that duty before making an initial offer, that it then follows that the decision is not only unlawful but wholly ineffective and not one that is capable of being cured under the statutory review process.[18]For the appellant Mr Gannon contends that Collins J correctly identified the duty on the authority to make proper inquiries about issues affecting suitability before making an offer under section 193(5). He may be right on that. He referred us also to a decision of Mr Henderson QC in R v Islington London Borough Council, ex parte Thomas (1998) 30 HLR 111, in particular a passage at page 119 to 120 which refers to the need for the investigation on the part of the local authority as to factors relevant to suitability. He argued that in the present case Westminster had made proper enquiries about the factors relevant to the existence, or otherwise, of the duty under section 104. However, no enquiries were made in advance of making the offer, or none that were worth regard as to the factors that were relevant to the suitability of the accommodation. That failure, he contended, rendered the decision unlawful and, as he put it, initially and incurably flawed. Pressed as to the scope of relevance of the statutory review procedure he accepted that there might possibly be a case in which the defect in the original process, if taken as an objection in the review and properly investigated by the reviewing officer and found to be flawed, can still be cured if the reviewing officer then comes by an entirely fresh and proper process to the same conclusion. In that case he was minded to accept that the review decision might perhaps not be vulnerable to an appeal. In any other case he contended that the review process could not cure the original failure.[19]By way of a qualification to that however he did also accept that the reviewing officer could hardly be criticised for not having addressed the adequacy or otherwise of the initial process if that had not been called into question in the course of the review itself. Since he also accepted that no point was taken of this kind in the course of the review in the present case, he was inclined to argue the point at a level of generality higher than that of the facts of the present case and regardless of the inability of his proposition to lead on that particular submission to his client's appeal being allowed.[20]It seems to me that Mr Gannon's submissions failed to reflect the significance of the statutory review procedure. Before this procedure was introduced local authority decisions in this area could only be challenged by way of judicial review. This led to an unmanageable burden of such applications which, if successful, resulted in the local authority having to go through the same decision process again but by a proper method. Instead, in the case of most decisions under this part of the Act, the Act now provides for first of all a right to an administrative review by the authority to be conducted by a different person by or on behalf of the authority; and secondly a right of appeal on a point of law said to be erroneous in the review decision. The scope of relevance of the review has been considered from time to time by the courts, in particular as to the relevance of matters not known or even not existing at the time of the original decision.[21]In Mohammed v Hammersmith and Fulham LBC [2001] UKHL 57 [2002] 1 AC 547, Lord Slynn of Hadley at the end of paragraph 25 and in paragraph 26 said this:"25. It is to be remembered that the process [he was speaking of the review process] is an administrative one at this stage and there can be no justification for the final administrative decision of the reviewing officer to be limited to the circumstances existing at the date of the initial decision.26. The decision of the reviewing officer is at large both as to the facts (ie as to whether the three conditions in section 198(2) of the Act are satisfied) and as to the exercise of the discretion to refer. He is not simply considering whether the initial decision was right on the material before it at the date it was made. He may have regard to information relevant to the period before the first decision but only obtained thereafter and to matters occurring after the initial decision.” I should say that that case was about the local connection or otherwise of the applicant with the particular local authority.[22]In Omar and Westminster City Council [2008] EWCA Civ 421 [2008] HLR 36 the appeal was against the decision on the review as to a) suitability of the accommodation and b) consequentially whether Westminster had discharged its duty under section 193. The County Court judge had held that on suitability the review had to take account of facts as they were at the review date not at the original offer date, but as to the discharge of duty it was limited to the position at the time of the original decision. As regards the question of date, Waller LJ in the Court of Appeal, giving the leading judgment, referred to Mohammed v Hammersmith and Fulham and he also relied on Sahardid v Camden LBC [2005] HLR 11 where the Court of Appeal held that a suitability review had to take account of the facts as they were at the date of the review. By contrast in Osseily v Westminster City Council [2008] HLR 18 the fact that, the appellant having rejected the property, it was not available at the date of the review was held not to mean that Westminster had not discharged its duty.[23]In Sahardid, which appears to me to be directly in point on the question of suitability in issue on this appeal, the Court of Appeal held that a suitability review had to take into account facts on the date of the review. The review officer had done so, but the County Court judge had not allowed the appeal despite recognising this error on the part of the reviewing officer. At paragraph 35 Sir William Aldous said this:
"For my part, I have come to the conclusion that the judge came to the right conclusion on this issue for the right reasons. His conclusion is, I believe, both consistent with logic and with the views expressed in this court and the House of Lords in Mohamed. The suggestion that the reviewer should not take into account the facts as at the date of the review would lead to difficulties if, as is sometimes the case, there is a delay between the offer and the final review. In this case there was some delay as there had been a review and then a re-review. In some cases the final review only takes place after an appeal to the court. To confine consideration to the facts that existed months or perhaps a year before could lead to injustice and in my view is contrary to logic."
[24]The judge then cited a passage from the Mohammed case. At paragraph 39 he said:
"That statement of Lord Slynn is a clear indication, consistent with logic, that the administrative decision taken by the reviewer needs to be taken upon the facts that exist at that time. To do otherwise would be shutting one's eyes to the actual facts, which could cause an injustice."
[25]In R (Calgin) v Enfield LBC [2005] EWHC 176; HLR 4 Elias J considered a combination of a judicial review application against the local authority's policies overall and in effect an appeal in the particular case. There had been a review of the decision and there was an appeal to the County Court. The appeal was stayed pending a judicial review application in relation to policy and it was agreed that the judge in the administrative court should deal with the particular appeal having also dealt with the judicial review application. In the latter part of his judgment coming to the circumstances of the particular appeal, Elias J said this at paragraph 51:
"I can consider the procedural aspect briefly. In my judgment there is nothing in this challenge. It seems to me, looking at the application form and the notes in the file relating in particular to the period August and September last year, that all the relevant information was considered. In addition, the notes suggest that the claimant did make some points about his being involved in a training course and being in debt. In any event, whether there were procedural defects then or not, there was the statutory review on December 22. It is plain that any defect in the procedure which might have occurred at the first stage was put right by the opportunity given to the claimant, through his solicitor, to put any points in he wished about the suitability of the property, including why he was unwilling to live outside Enfield."
That judgment was approved in terms by the Court of Appeal in Osseily to which I have referred.[26]On behalf of the appellant Mr Gannon does not challenge any aspect of the review process in the one ground on which the appeal is brought. In my judgment that is fatal to the appeal. The observations in Ojuri have no relevance to a case where a statutory review process is available. In such a case the Act has provided for the applicant to challenge the decision and to have it fully reconsidered, with the opportunity to ensure that the full facts are taken into account. That seems to me to exclude as illegitimate a challenge on the grounds such as the original process was incorrect or even unlawful, because a point of that kind is superseded by the question as to whether the review process was carried out properly and reached a legally correct solution.[27]Mr Gannon pointed out that the offer of accommodation made under section 193(5), even if following a defective process, is especially significant to the applicant because if it is not accepted and if its suitability is not successfully challenged, the authority has discharged its relevant duty. The offer can of course be accepted subject to review but that may not be an easy option for the applicant either. I understand that difficulty and the dilemma that it presents to an applicant but that is inherent to the legislation. Fairness to applicants is important, but so is fairness to the local housing authority in the sense of not exposing them to unreasonable difficulties and delays in the discharge of their role and functions. The legislation is as it is and an applicant has the remedy of a review and, if the result of the review is unfavourable, of an appeal on a point of law in the review decision. It seems to me that that is the clear result of the reading of the legislation and is borne out in full by the observations that I have mentioned of the courts as to the relevance of matters coming to light or even occurring after the original decision in the course of a review.[28]In my judgment these show that the review process, which is as Lord Slynn said an administrative process, is a continuation or a replacement for the initial decision-making process. It is therefore in a sense analogous to what would have been the result if under the old procedure the judicial review application had been brought and the administrative court had quashed the original decision and required the local authority to come to a fresh decision. If such a process had then been taken the inadequacy or even unlawfulness of the original decision would have been nothing to the point. Likewise under the present regime, for which the review is a matter of right for the disappointed applicant, it seems to me that while of course any point may be taken in the course of the review as to what was or was not said at the stage of the original offer, what really matters is for the issues of substance to be addressed in the course of the review, and to be properly addressed.[29]Accordingly even if the local authority failed in its duty to make proper inquiries on the issues relevant to suitability of the accommodation before making an offer, in my judgment the remedy for a disappointed applicant is to exercise the right of review. The applicant thereby has a second chance to have the matter properly considered with the fullest opportunity for representations to be made and a fresh duty on the local authority to make proper inquiries. Only if the result of that process is flawed so as to be wrong in law is there any further recourse by way of appeal section 204. It would be consistent with Mr Gannon's case on this appeal for the review process to have been impeccably conducted in terms of its factual consideration and for the review decision to disclose no possible suggestion of any error of law. According to his argument even if that were the case, the review decision would at least be at risk of being set aside because of an error of procedure in the original decision making process. In my judgment that is not a valid ground of challenge and not a valid point. Under section 204 the appeal is limited to an error of law in the review decision, and there is no remedy other than a review against a decision to offer particular accommodation and to challenge it on the grounds that the accommodation was not suitable. That is the statutory remedy the disappointed applicant has and in the present case she has exercised it. She has had the benefit of two reviews because the first one was accepted to be appropriate to be set aside and reconsidered.[30]So she has had the benefit of a second review and she has had the benefit of an appeal to the County Court. In my judgment Mr Gannon has not shown that there is any error in the review decision and he cannot do so. Accordingly I dismiss this appeal.[31]I agree.[32]And so do I, and so the appeal is dismissed.

Order

Appeal dismissed. c

Cited in 2 later judgments