England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
(His Honour Judge Knight QC)

		Royal Courts of Justice Friday, 2nd March 2001

LORD JUSTICE TUCKEY:

Introduction

1. Where a local housing authority are satisfied that an applicant for accommodation is unintentionally homeless, eligible for assistance and has a priority need section 193(2) of the Housing Act 1996 ("the Act") requires the authority to secure that accommodation is available for his occupation. By section 193(5) the authority cease to be under this duty if:

"the applicant, having been informed by the authority of the possible consequences of refusal, 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."

2. The question on this appeal is whether an applicant can accept such an offer but at the same time challenge the authority's view as to the suitability of the accommodation offered by asking for a review under section 202 of the Act. Judge Brian Knight QC, following the decision of Moses J in R v. Kensington and Chelsea RLBC, ex parte Byfield 31 HLR 913, decided that he could. The appellant authority ("the Authority") say that he was wrong. Further questions arise as to what an applicant has to be told when the authority invoke section 193(5), in particular whether he has to be informed of his right to ask for a review.

Facts

3. The facts can be stated very shortly. The respondent ("the applicant") who is 28 came to London in July 1999 with her 11 year and 11 month old sons to escape domestic violence from her partner in Liverpool. She applied to the authority who, after completing their inquiries, wrote to her on 9th September 1999 saying they were satisfied that the section 193(2) criteria to which I have referred were satisfied, so they owed her a duty "to secure that accommodation remains available to you for a two year period under section 193(3)".
4. On 29th October 1999 the authority were notified by the Peabody Housing Trust that in approximately four weeks they would have a two-bedroomed house in Dagenham to let to a tenant nominated by the authority. The authority nominated the applicant and wrote to her on 1st November, saying:

"I refer to your acceptance as a priority for permanent rehousing by Westminster City Council under Part VII of the Housing Act 1996.

You are entitled to one priority offer of accommodation and your application has been sent to Peabody Housing Trust for an offer of accommodation.

The Housing Association will be contacting you to arrange an interview and viewing of the property they currently have available.

If you fail to keep the appointment, or refuse the offer of accommodation the City Council will discharge its duty and no further offers will be made."

5. The Trust made an appointment for the applicant to see the house on 5th November but she did not do so. The same day the authority wrote to her, saying:

"I refer to your failure to view an offer of permanent accommodation with: Peabody Housing Trust.

I must inform you this Authority considers it has discharged its duty under Part VII of the Housing Act 1996 by having secured permanent accommodation for your occupation.

You must therefore contact Peabody Housing Trust ... by no later than noon on 10 November 1999 in order to sign for the tenancy.

If you fail to sign for the tenancy the City Council will not make any further offers to you and your case will be closed."

6. On 9th November solicitors for the applicant wrote saying that she had compelling reasons for her failure to accept the accommodation offered. These included the state of her health, the need to be near her parents who lived in Brent and the fact that her elder son had just started a new school, but it is not necessary to consider these matters in any further detail for reasons which will become apparent. The authority treated the solicitor's letter as a request for a review under section 202 of the Act. By letter of 4th December 1999 the reviewing officer upheld the decision of the authority that they had discharged their duty to the applicant under the Act. In doing so he accepted that the accommodation which had been offered to her was suitable.
7. The applicant appealed to the county court under the provisions of section 204 of the Act. The Byfield point was not taken until the hearing but the judge proceeded on the basis that if the applicant had been told that she could accept the offer and request a review she would have done so. The appeal has been argued on this basis also.
8. As well as finding for the appellant on the Byfield point the judge also quashed the decision on review on Wednesbury grounds. The authority appealed this part of the judge's decision as well, but recently they have offered and the applicant has accepted accommodation under Part VI of the Act and so this part of the appeal is entirely academic and we declined to hear it. The Byfield point, however, is of general importance, so we have heard the appeal from the judge's decision on this point even though it will not affect the applicant's housing position. We should not have done so if the applicant had not been represented and we are grateful to the Legal Services Commission for allowing her representation to continue, which has given us the benefit of hearing full argument from both sides.

The statutory scheme

9. Part VI of the Act deals with the allocation of long-term council housing to those on the authority's register of qualifying persons. Part VII of the Act (sections 175-218) deals with homelessness. If a person applies to an authority for accommodation and the authority have reason to believe that he is or may be homeless, they must make such inquiries as are necessary to satisfy themselves whether he is eligible for assistance and, if so, what, if any, duty is owed to him (sections 183 and 184(1)). On completion of their inquiries the authority must notify the applicant of their decision (section 184(3)). Homelessness is defined by sections 195-178; eligibility by sections 185 and 186. The authority's duty depends upon whether the applicant has a priority need and is not intentionally homeless. If both these conditions are met, the authority have the section 193(2) duty. Lesser duties are imposed if they are not (sections 190 and 192). There is an interim duty to accommodate those whom the authority have reason to believe may be homeless, eligible for assistance and have a priority need pending a section 184 decision. But after such a decision is made provision of interim accommodation is discretionary (section 188).
10. The section 193 duty is owed for a period of two years "subject to the following provisions of this section" (section 193(3)). It can only be discharged by the provision of suitable accommodation either by the authority themselves or some other person (section 206(1)). Section 193(5), (6) and (7) set out circumstances in which the authority "shall cease to be subject to the duty under this section". They include accepting an offer of Part VI accommodation ((6)(c)) and refusing an offer of such accommodation after being informed of the possible consequence of refusal and if

"the authority are satisfied that the accommodation was suitable for him and that it was reasonable for him to accept it and notify him accordingly within twenty one days of the refusal." (Subsection (7))

Subsection (9) says:

"A person who ceases to be owed the duty under this section may make a fresh application to the authority for accommodation or assistance in obtaining accommodation."

11. The relevant review provisions in section 202 are:

"(1) An applicant has the right to request a review of -

(a) any decision of a local housing authority as to his eligibility for assistance,

(b) any decision of a local housing authority as to what duty (if any) is owed to him under sections 190 to 193 ...

(f) any decision of a local housing authority as to the suitability of accommodation offered to him in discharge of their duty under any of the provisions mentioned in paragraph (b) ...

(3) A request for review must be made before the end of the period of 21 days beginning with the day on which he is notified of the authority's decision or such longer period as the authority may in writing allow."

12. Section 202(1)(a) and (b) refer to section 184 decisions, among others. Section 184(3) and (5) require the authority to notify the applicant of such a decision and inform him of his right to request a review of that decision. Section 202(1)(c), (d) and (e) are concerned with decisions relating to referral to another authority. There are specific requirements to notify the decision and inform the applicant of his right to a review of decisions to which (c) and (d) apply but not to (e). There are no such provisions either for decisions to which (f) applies.
13. Reviews must be conducted in accordance with regulations which require the authority to notify the applicant of his right to make written representations and the procedure to be followed in connection with the review. The decision on review must be made within eight weeks of the request.
14. The right of appeal to the county court is against "the decision on the review" "on any point of law" (section 204). These provisions have given rise to arguments about jurisdiction which no longer arise in this case.

Byfield

15. For present purposes the facts in Byfield are indistinguishable from those in the instant case although the authority's offer in that case did refer to the applicant's right "to request a review of the decision that this offer is suitable". The first issue was whether the authority had made a proper offer requiring acceptance or rejection for the purpose of section 193(5), notwithstanding that the applicant had requested a review of the authority's decision that the accommodation offered was suitable and despite the fact that the authority had not yet made a decision on review. Moses J decided that they had made a proper offer. But he went on:

"That is not the end of the matter. The right of review exists irrespective of whether an applicant rejects or accepts an offer. If the applicant rejects the offer, that is an offer properly made for the reasons I have already given, and if the original decision is confirmed on review section 193(5) provides that, subject to the other procedural requirements, the authority's duty ceases. But there is no statutory requirement that an applicant must refuse an offer before exercising his right to a review. It is, in my judgment, open to an applicant to accept an offer and request a review. If the review is successful, then the duty under section 193(2) persists. The conditions for cessation of the duty will not have been satisfied. If the review fails, the offer of the original accommodation will have been accepted. Thus, the accommodation should still be available."

He then considered the council's policy and said:

"There is no reference in that policy to the opportunity afforded by subsection (5) of section 193 to accept and request a review. Consistency with that subsection requires that an authority must give that opportunity to applicants. An authority must make it clear that its duty will only cease if there is a refusal, but that if the accommodation is accepted a review may be requested, and that if it fails, the property will be available."

16. The decision in Byfield was followed by Jowitt J in London Borough of Tower Hamlets v Mbidi (unreported, Crown Office, 12th January 2000), but in that case the authority conceded that their offer was unlawful because it had not given the applicant the option of accepting and asking for a review, so the court was not asked to consider whether Byfield was correctly decided.

Submissions

17. Mr Jones, for the authority, submits that Byfield was wrongly decided. Section 193(5) is clear. It is intended to enable authorities to discharge their duty by making a single offer of accommodation. If an offer is made in terms of the subsection the duty "shall" cease. The subsection says nothing about a right to accept and ask for a review. Further words entitling an applicant to approbate and reprobate cannot and should not be written into the statute.
18. The practical consequences of Byfield cannot have been intended by Parliament. The applicant may be in accommodation provided by the authority under section 188. Should he be required to move out of this accommodation and into the accommodation offered pending a review? If he moves in and the review is successful he will have to move out again. If he does not move the offered accommodation will be unused pending the outcome of the review which may take some time. This is a waste of scarce housing resources. If it is open to an applicant to accept an offer and request a review almost all applicants will do so in the hope of being offered better accommodation. This will impose an unacceptably large administrative burden on authorities.
19. Mr Luba QC for the applicant submits that when an authority carried out their obligations under Part VII of the Act in a case like this they had to take five steps. These were:

1. Ascertaining the duty - the section 184 decision.

2. Deciding whether to provide their own or some other person's accommodation - section 206.

3. Selecting accommodation which they think is suitable for the applicant.

4. Notifying the applicant of this decision and his right to ask for a review of it - section 202(1)(f).

5. Relying on section 193(5) so that the applicant is required to elect between rejecting or accepting the offer.

20. Steps 1, 2 and 3 are uncontroversial. Mr Luba submits that steps 4 and 5 lead to the conclusion that it must be open to the applicant to ask for a review of the decision that the accommodation he has been offered is suitable before or at least independently of the election he has to make following step 5. If the applicant is not allowed to challenge suitability unless the offer is refused he can never exercise the separate right to request a review of the decision as to suitability provided by section 202(1)(f). Mr Luba accepts that step 4 is not expressly provided for in the Act. This, he submits, is an oversight. It can safely be inferred that this is what Parliament intended. As they so provided for decisions to which section 202(1)(a) to (d) apply, they must have intended similar provisions to apply to the question of suitability, (f), which is usually what is at issue in Part VII cases. Section 202(3) clearly contemplates that each of the decisions referred to in section 202(1) has to be notified. The need to inform the applicant of his right to ask for a review can be inferred from the fact that here one is dealing with the most vulnerable people and the authority with the statutory duty to provide accommodation also have the responsibility to advise and assist homeless persons (section 179).
21. The authority's construction of the statute faces an applicant with (to use Mr Luba's words) "an unwholesome opportunity to gamble". The applicant's construction avoids this and its consequences are mitigated by the fact that most accommodation offered is not immediately available and the process of review can be speeded up.

Discussion and Conclusion

22. The starting point must be the language of section 193(5) itself. The authority cannot make an offer of accommodation within the subsection unless they are satisfied that it is suitable for the applicant. This process necessarily therefore precedes the making of the offer, but I think it is artificial to look at the two separately. By making the offer of accommodation to the applicant the authority are necessarily saying that they are satisfied that it is suitable for him.
23. The subsection only deals with refusal and its mandatory consequence, namely that the authority's duty under the section will cease. The authority's decision that the accommodation is satisfactory, or that their duty under the section has ceased can be the subject of a request for a review under section 202(1)(f) and/or (b), but if the review is unsuccessful that is the end of the matter.
24. The subsection says nothing about acceptance. Unqualified acceptance will result in the authority having complied with its section 193 duty which continues for up to two years. Acceptance with a request for a review is a heavily qualified acceptance which is not expressly permitted. The obvious purpose of section 193(5) is to allow authorities to make one offer of accommodation. To allow an applicant to accept, but to say in effect he does not accept because the accommodation offered is not suitable, substantially defeats this purpose. In the absence of words permitting it, I do not think this is what Parliament intended. It does mean, as Mr Jones submits, that applicants will have nothing to lose by accepting and asking for a review, with the very unsatisfactory consequences to which he has referred. It creates all sorts of uncertainty, not least for those such as the Peabody Trust who make their accommodation available for Part VII purposes.
25. For these reasons I conclude that it is not open to an applicant to accept an offer of accommodation made subject to section 193(5) and ask for a review. It follows that I think Byfield was wrongly decided. It is not clear from the report whether the point was fully argued, and the judge reached his main conclusion in one sentence which he does not support with any reasons.
26. I accept Mr Luba's submission that the effect of section 202(3) is that the authority are required to notify applicants of section 202(1)(e) and (f) decisions, although there is no express requirement to do so in the sections providing for such decisions to be made. As I have said, I think notification of an offer of accommodation under section 193(5) necessarily gives notice that the authority are satisfied that the accommodation is suitable. However, good practice requires, I think, that the authority should make it clear that they are so satisfied when they make their offer. The letters in the instant case did not do so. Nor did they refer in terms to section 193(5). I think they should have done so to give a clear point of reference to anyone being asked to give advice about the offer.
27. In view of what I have said, there can be no requirement for applicants to be told of a right to accept and ask for a review as Byfield held. Section 193(5) does not expressly require applicants to be informed of their right to ask for a review in the event that they refuse the offer and I do not think any such requirement can be implied. Where this is required the statute says so.
28. The conclusions which I have reached are to some extent borne out by the contrast between the provisions relating to a Part VII offer in section 193(5) and a Part VI offer in section 193(7). This suggests that the former is intended to be a more summary process than the latter. That is what one would expect because one is concerned with temporary and the other with permanent accommodation. Mr Luba told us that the two year period in section 193 was set in the hope that within this time all those who had been provided with Part VII accommodation would be rehoused under Part VI or otherwise have found permanent accommodation.
29. I accept that one consequence of my conclusions is that an applicant who is dissatisfied with the accommodation which he is offered is faced with having to take a chance: if he refuses the offer he faces the risk that he will end up with nothing; if he accepts he has to put up with accommodation he considers unsatisfactory. But against this must be set the fact that such accommodation is only intended to be temporary and it enables authorities to perform the difficult task which they have under this legislation with greater efficiency and certainty. There is also the possibility that a fresh application can be made (see section 193(9)). The circumstances in which this could be done were canvassed but not fully explored in argument before us, and so I do not propose to say more about this in the instant case.
30. For the reasons I have given I would have allowed this appeal on the Byfield point. However, in the circumstances, the appeal is best disposed of simply by making no order.

LORD JUSTICE LONGMORE: I agree.

SIR CHRISTOPHER SLADE: I also agree.

Order: Appeal disposed of by making no order; order for costs made below to stand; no order for costs on the appeal; legal aid taxation of the respondent's costs in the appeal; application for permission to appeal to House of Lords refused. (Order not part of the judgment of the court)