Obiorah v London Borough of Lewisham [2013] EWCA Civ 325

“26. It seems to me that to re-write or seek to suggest that the Local Authority should have re-written the relevant letters with an additional rider indicating to her in terms, not just that permanent accommodation would be looked at in the future, but it could be the same property that became that permanent accommodation under the transfer from temporary to permanent scheme is the council (sic) of perfection. It is to simply re-write with the benefit of hindsight a section of the letter because the situation is that, sadly, the Appellant now knows (and would have known I suspect shortly after she received the review letter) that there was no power for her to simply reject on the basis of tenure, which is what she clearly did [,] accommodation that was otherwise entirely suitable to her needs and requirements. 27. I am firmly of the view that for the courts to deem that letter and the consequences that flow from it unfair under the authorities to which I have been referred would be to require the courts to micromanage and indeed usurp the position of the Local Authority, who has a very difficult job to do, and to in effect put them in a position where almost any letter or correspondence would be susceptible to re-writing or review. That is not the system that we have. It is a review by the courts looking carefully at what is a serious decision for the sort of unfairness that strikes at that system and renders what has been decided unjust or unfair. That is not this case. All the information was available, both from her prior dealings and from the terminology of the letters she received for her to know perfectly well what she was rejecting. Indeed to be fair to the Appellant, when one reads the language (I do not criticise it in any way) of her letter, it is perfectly clear that this is a woman who has reached the end of her tether and is determined only to receive permanent housing, whatever is offered in the temporary field by the Respondents.”

“The judge was wrong hold (sic) that fairness was satisfied by Lewisham not correcting the appellant’s genuine if mistaken understanding of her entitlement to a final offer of accommodation until after she had refused an offer of temporary accommodation and Lewisham had discharged its duty to her under s.193 of the Housing Act 1996.”

“Original Ground 3. The Learned Judge was wrong to hold that fairness was satisfied by Lewisham not correcting the appellant’s genuine but mistaken understanding of her entitlement to a final offer of accommodation until after she had refused an offer of temporary accommodation and Lewisham had discharged its duty to her under s193 Housing Act 1996. Ground 2 4. The Learned Judge erred in law in holding that the Appellant did not have a legitimate expectation that she would be provided with permanent accommodation by the Respondent and or that this legitimate expectation made the review decision unlawful. Ground 3 5. The Learned Judge erred in law in concluding that the review was conducted fairly. There was a breach of Regulation 8 of the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 SI 1999/71 which rendered the review process unfair and unlawful. The Learned Judge should have varied or quashed the review decision.”

“3.4 Offer Guarantees Any council property you are offered must: • have enough bedrooms for your permanent household (see Section 3.1) • be ready to move into from the date of tenancy (see Section 3.7) Where appropriate, the offer must take into account: • any recommendations by the Council’s Medical Advisor (see Section) • any recommendations on disabilities by the Occupational Therapy Team(see Section 4.2) If the local housing office accepts that any of these guarantees is not met, the offer will be withdrawn and another one made when a suitable property becomes available. If you are being rehoused through the Housing Options Centre and you are made an offer within the one offer policy (see Section 3.3), this will take into account as far as possible, requests about the location and property type you would prefer to be offered, although no guarantees can be made.”

“….where it was alleged that a public authority had by practice or promise created a legitimate expectation that a person would be granted some substantive or procedural benefit the court should consider to what the authority had in fact committed itself, whether the authority had acted or proposed to act unlawfully in relation to that commitment and, if so, whether to take the substantive decision itself or to remit the matter for the authority to decide afresh according to law; that, in considering whether an authority had acted unlawfully in relation to a commitment which it had made, it had to be objectively determined whether its conduct had amounted to an abuse of power; that it was not as a matter of law necessary to show that the applicant had relied on the expectation to his detriment, although both reliance and detriment were relevant considerations in determining whether it would be unfair to allow the authority not to honour such an expectation; that it was an abuse of power for an authority to adopt a course of action at variance with a promise, which had given rise to a legitimate expectation that it would be honoured, without considering the fact that it was in breach of that promise;...”

“45. The Appellant did not receive the “minded to” decision and, in light of the long history of correspondence with the Respondent it is quite clear that she would have made representations had she been given the opportunity to do so. In any event the “minded to” letter did not consider the question of legitimate expectation nor did it advise the Appellant of the probability that the accommodation would become permanent. It did not even advise the Appellant that she had the right to make oral or written representations or both. 46. The Appellant had been insisting for many years that she was entitled to “one offer only” of permanent accommodation. The letter of 14 June 2011 was in a standard form with an identical warning to that given to the Appellant in 2004 namely that it would be a considerable time before she obtained permanent housing. As such it was extremely provocative and, indeed, misleading given that the review officer acknowledged that the accommodation would probably have become permanent. The Appellant was deprived of the essential safeguards conferred by Regulation 8, and, for this additional reason the decision should be quashed.”

“(2) If the reviewer considers that there is a deficiency or irregularity in the original decision, or in the manner in which it was made, but is minded nonetheless to make a decision which is against the interests of the applicant on one or more issues, the reviewer shall notify the applicant- (a) that the reviewer is so minded and the reasons why; and (b) that the applicant, or someone acting on his behalf, may make representations to the reviewer orally or in writing or both orally and in writing.” (a) that the reviewer is so minded and the reasons why; and (b) that the applicant, or someone acting on his behalf, may make representations to the reviewer orally or in writing or both orally and in writing.”