Nzamy v London Borough of Brent [2011] EWCA Civ 283

Case No B5/2010/1013[2011] EWCA Civ 283IN THE COURT OF APPEAL ( CIVIL DIVISION )ON APPEAL FROM CENTRAL LONDON COUNTY COURT(HIS HONOUR JUDGE HIGGINS)Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday 26th January 2011
Before
LADY JUSTICE ARDEN DBELADY JUSTICE BLACK DBEMR JUSTICE DAVID RICHARDS
Between
NzamyAppellantLondon Borough of BrentRespondent
( 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 )
Jonathan Manning and Annette Cafferkey (instructed by Moss Beachley Mullem and Coleman ) appeared for Appellant.Nicholas Grundy (instructed by London Borough of Brent) appeared for Respondent.
Judgment
[1]This is an appeal by (if I describe it loosely I will be forgiven) a family who have up to the present time been living for some years in accommodation provided by the local authority, who are the respondents to the appeal. They now have three children, although those children have come along during the course of the association between the appellants and the local authority.[2]In 2002 the family first came to the attention of the local authority, and the local authority concluded, as can be seen from the letter of 10 December 2002, that they were homeless, that they had a priority need and that their homelessness was unintentional. As a result of that the local authority had a duty to provide them with accommodation. Plainly permanent accommodation could not be provided straightaway because there is a system within a local authority for allocating that fairly. The family were therefore put on the housing register awaiting permanent accommodation and they were accommodated by the local authority in temporary accommodation.[3]In 2005 they were offered a property in Church Road, in which, after a review which was unsuccessful as to the suitability of that property, which the reviewing officer held to be suitable, they began to live. They have been living in that property ever since.[4]In September 2008 the events arose which ultimately led to the present appeal. In September 2008 a report was made to the local authority that the family, in particular the female appellant, were in fear of violence in their locality. The local authority began some enquiries, although it is not quite clear what was the extent of those enquiries. The family said that they wished to remain in their current accommodation, not for example taking up an offer that was made of bed and breakfast accommodation. They did remain there to the extent that they went there in the daytime, although they were sleeping overnight at a friend's. By mid-December 2008 the family were back living full-time at Church Road.[5]The local authority, however, had been notified again about the fear of violence, not a new event as it turns out but a notification of what had happened in the summer, in August and September 2008, and the local authority made arrangements therefore for another property to be offered to the appellants. That property was in Kilburn High Road. It was not considered by the appellants to be a suitable place for them to live. The information that they were not minded to accept that accommodation reached the local authority. The local authority wrote on 23 December 2008 in a document headed "Final notice: do not ignore.” That letter to Mr Nzamy says that the council had recently made an offer of temporary accommodation which he had refused. It expresses the view that that property was suitable. It goes on to say that they had until close of business on 29 December 2008 to sign an agreement for that Kilburn High Road property and it says:
"Should you not accept, the Council will construe that it has DISCHARGED ITS STATUTORY DUTY to you. This will include termination of the licence for any temporary accommodation you may occupy and no longer offering any further assistance with rehousing. Under section 202 of the Housing Act 1996 you have a right to request a review of this decision if you do not agree with it."
It then goes on with the arrangements for a review and there are further warnings to take the matter seriously and give it serious consideration.[6]There can have been little doubt from that letter that the consequence of not accepting the Kilburn High Road property would be, in the local authority's view, that the family would have to leave the temporary accommodation in which they had been living for the past five years in Church Road.[7]On 4 January 2009, in a letter which I think is common ground was a request for a review under section 202 of the Act, the family wrote to the local authority. In fact the letter is written by Mrs Nzamy. It is a letter which in handwriting is about three and a half pages long. It says that the family are not really happy with Church Road and mentions a number of issues that there are about that property. It seeks to deal with the suitability of the property that had been offered in Kilburn High Road as an alternative, which the family considered was unsuitable and also considered was in fact worse for them than their current accommodation. The letter goes on to set out the steps that the family have taken with regard to the accommodation in Church Road, painting, carpeting, exterminating the rats and also the steps that had been taken by others in relation to that property. The next door shop had installed a camera and one of the results of that had been that the police had been able to arrest some of the gangs who had been causing trouble in the locality.[8]The letter concludes with a paragraph that begins:
"Now I ask you kindly to look at our case and various documents that have been submitted "
At the very end of the letter it says:
"Finally I ask you please to offer us a permanent accommodation for us, but until that time we can wait in our current flat."
[9]The appellants argue that that was a request for a review not just to the suitability of the Kilburn High Road property but a review also of the local authority's decision, which they had indicated that they were going to make if the Kilburn High Road property was rejected, that their duty towards the family was discharged.[10]The local authority argue that the letter sought only a section 202 review with regard to the suitability of the Kilburn High Road accommodation and not of the discharge question.[11]To explain why that matters I need to give a little information about the statutory scheme. That is set out in Part VII of the Housing Act 1996. Section 175 of that Part VII defines who is homeless, and there is no debate but that this family were found to be so by this local authority and that that has not changed.[12]Section 183 provides that:
“The following provisions of this Part apply where a person applies to a local housing authority for accommodation, or for assistance in obtaining accommodation, and the authority have reason to believe that he is or may be homeless or threatened with homelessness.”
[13]The scheme is that the local authority enquire whether the person is eligible for assistance and whether they have a duty and they tell the appellant with regard to that, all of which has been done and then one comes to section 193, which is headed "Duty to persons with priority need who are not homeless intentionally", ie this family.[14]I will not attempt to describe this necessarily in technical language but the scheme is that the local authority have got to find some accommodation for the family and that they provide that by means of temporary accommodation until permanent accommodation is available.[15]Section 193(5) provides:
“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.”
[16]The scheme of the Act also provides by virtue of section 202 that the applicant has a right to request a review of any decision of a local housing authority as to what duty if any is owed to him under section 193 as well as a review of the suitability of any accommodation which the local authority offers. That is 202(1)(b) in the case of the duty and (f) in the case of the suitability of the accommodation. And following upon a request for a review and a review there is, under section 204, a right of appeal to the county court on a point of law. In this particular case the review was carried out and resulted in a letter of 20 February 2009 and that was appealed to the county court and this is a second appeal of the decision of the county court judge. He upheld the decision of the reviewing officer that the accommodation in Kilburn High Road was suitable and that it is not entirely easy to work out precisely what he concluded, but it appears also that the circuit judge had inferred from that that there was a discharge of the duty of the local authority in consequence.[17]I turn now, against that background, to consider what it was that was on the agenda of the reviewing officer when he considered the matter prior to giving his decision letter of 20 February 2009. Plainly it is necessary to look at a handwritten letter written by an unrepresented person in the situation of Mrs Nzamy with common sense and to take a broad view with regard to what it is that is being sought by such a letter.[18]If the family were to be allowed to, as Mrs Nzamy put it in her letter, wait in their current flat until they were offered permanent accommodation, then they had to disrupt the local authority's conclusion or intended conclusion that the local authority's housing duties to that family would be discharged if the accommodation offered in Kilburn High Road was suitable and had been rejected by the family.[19]Against that background, and bearing in mind that the local authority had made perfectly plain their letter of 23 December to the family that discharge of the duty would follow from the rejection of the Kilburn High Road flat, it is difficult in my view to construe the final passage in Mrs Nzamy's letter as anything other than a request that the reviewing officer should look not only at the question of whether the accommodation in Kilburn High Road was suitable but also at the question of whether the local authority had validly discharged its duty and I am of the view that that is the construction which should be placed upon that final passage of the letter.[20]In those circumstances the reviewing officer had a duty not only to look at the suitability of the accommodation, as he plainly did, but also at the local authority's decision that it no longer had or would no longer have a duty to the family as a result of their rejection of that suitable accommodation. The parties are agreed that the reviewing officer's review did not properly consider that second question of the local authority's discharge of their duty, and it is conceded on behalf of the local authority that if that matter was properly before him then it will have to be returned for a further decision to be taken by a reviewing officer to fill the omission by the reviewing officer who made the decision set out in the letter of 20 February.[21]As I have found that the letter did place that issue on the agenda for the review, then it follows that I would allow this appeal to the extent that it would now have to go back for a further determination by the reviewing officer.[22]In those circumstances the questions that arise of amendment of the pleadings and of an adjournment resulting from that no longer need to be determined and I say no more about them.[23]I agree.[24]I quite understand how the review manager came to the decision about the scope of the review that he did, but I agree with Black LJ and consider that the request for review should be read in favour of the request being made an effective exercise of the statutory right for a review as Parliament must have intended. In order for the Nzamys to stay where they were, if they were wrong on suitability about the premises at 267 Kilburn High Road, the new temporary accommodation which had been offered, the review officer also had to consider the question whether the local authority decision, which was only then an intended decision, to notify them that they regarded themselves as having discharged their duty under this section was one which also had to be reviewed. It seems to me that they must inevitably have been asking for review of both those decisions, as Black LJ has explained and as my David Richards J has agreed.[25]The judge also appeared to consider that discharge was within the scope of the review. Mr Grundy submits that the words relied on in the letter of 4 January cannot amount both to a waiver, as is argued in the appeal, of the local authority's duty and in addition as a request for a review of the intention to notify pursuant to section 193(5), but I do not see why the same words could not bear the same function, although it is an open question on this appeal whether there could have been or was a waiver. If there could have been a waiver, the same words could by implication still be relied upon as a request for a review of the intention to give a notice under section 193(5).[26]As to the application, I accept Mr Grundy's submission that the question of what considerations have to be taken into account by the reviews manager has not been argued and I leave that question open. Mr Grundy has fairly accepted that the matter has to go back to the decision maker. No other ground of appeal can be dealt with and so I would dismiss the application for permission to amend the grounds to bring in Article 8 considerations.[27]So we allow the appeal on one ground and we dismiss the application for permission to amend.

Order

Appeal allowed; application for permission to amend refused

Cited in 1 later judgment