England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE WEST LONDON COUNTY COURT
(HIS HONOUR JUDGE COWELL)

		Royal Courts of Justice Strand London, WC2 Wednesday, 25th September 2002

1. LORD JUSTICE RIX: This is an application for permission to appeal from the judgment of His Honour Judge Cowell, given in the West London County Court on 10th May 2002.
2. This is an application for a second appeal because the hearing before Judge Cowell was itself an appeal for the purposes of the permission to appeal jurisdiction, arising as it did following a review of a Housing Act decision by a housing authority for the purposes of section 202 of the Housing Act 1996, see Newham LBC v Azimi [2001] 33HLR51. Nevertheless, I bear in mind for these purposes that the point of law which the applicant seeks to raise on this application is one that has in fact only been considered once, and that is by Judge Cowell in the County Court.
3. The matter arises in the following way: the applicant, Mrs Abla Jubarah, was housed under the homelessness provisions of the 1996 Act by the London Borough of Hammersmith and Fulham, the respondent to this application, and had been so housed since 1996, under the provisions of section 193 of the Act. On 13th August 2001 an offer of a secure tenancy, under part VI of the Act, was made by the Borough to Mrs Jubarah. There was no immediate response to that offer, but on 16th August Mrs Jubarah's son and daughter telephoned separately to the Borough to say that their mother was not happy with the offer. They were told that she must, nevertheless, view the offered accommodation, which each of them said she would do on the next day, or at any rate that she would call on the Borough the next day, being 17th August. In the event, Mrs Jubarah did not attend on that day.
4. The Borough, therefore, wrote a letter on that day, 17th August, to warn Mrs Jubarah that she must attend for the purpose of viewing the offered accommodation by 21st August, or of the consequences if she did not. Although the matter subsequently came to be disputed before the County Court, the position found by the judge was that Mrs Jubarah did not attend on 21st August. Another week went by, and then on 28th August the Borough wrote a letter to Mrs Jubarah, for the purposes of section 193(7) of the Act, to inform her that their duty to house her under section 193 had ceased, subject to her right of review.
5. It was not until 11th September 2001 that Mrs Jubarah wrote to say that she should not be treated as refusing the offer of accommodation, but expressing reasons as to why she considered it to be less than satisfactory for her and her family.
6. The Borough wrote back on 14th September to inform her that they were treating her letter as a request for review. The review then took place and resulted in a decision of no change. It was from that decision on review that Mrs Jubarah took her appeal to Judge Cowell.
7. On this application Mr Gannon, in his helpful submissions, seeks to raise what is in effect a single point of law, a point of construction under section 193(7), to this effect. The subsection reads as follows:

"The local housing authority shall cease to be subject to the duty under this section if-

(a) the applicant, having been informed of the possible consequences of refusal, refuses an offer of accommodation under part V1, and

(b) 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 21 days of the refusal."

8. The only part of the conditions expressed in that subsection which are focused upon by Mr Gannon are the final words "and notify him accordingly within 21 days of the refusal". No other part of the conditions laid down for the authority to cease to be subject to the section 193 duty is now disputed.
9. The submission of Mr Gannon, both on this application and before Judge Cowell, was that the words "within 21 days of the refusal" should be understood as having the effect that the authority is not in a position to notify an applicant of the cessation of its duty to him for a period of 21 days from the applicant's refusal of an offer of accommodation under that subsection.
10. Mr Gannon fairly recognises that this is a difficult construction upon the wording, but nevertheless prays in aid, as he did before the judge, a note in the Housing Encyclopedia under section 193, which he submits supports his construction and which reads as follows:

"It seems likely that the offer must remain open during the 21 day period of notification, for the limitation does not appear to have any other good purpose."

11. The judge rejected the submission before him, both on the basis of the wording of the subsection, but also because he thought that the 21 day limitation was connected with the 21 day limitation under section 202 of the Act for the purposes of claiming a review. Mr Gannon, nevertheless, points out that that limitation period is a period which runs not from a refusal of accommodation, but from notification of the authority's decision.
12. It is also to be noted that Judge Cowell appears to have misunderstood the submission before him: in his judgment he treats it as a submission that the 21 day period for which Mr Gannon is contending that the offer should remain open, ran not from refusal, but from the making of the offer.
13. I see considerable difficulties in the applicant's argument, and in Mr Gannon's submission under his essential ground one. Nevertheless, I am prepared to give permission to appeal for the purpose of arguing this ground for the following reasons: first of all, the correct construction of this subsection does raise an important point of principle or practice. It affects all applicants and housing authorities in the circumstances dealt with in the subsection.
14. Moreover, the view of the judge stands in contrast with the opinion expressed in a leading text book, such as the Housing Encyclopedia, which hitherto had been the only published guidance on the effect of the 21 day period within the subsection. Moreover, the point has only been considered by Judge Cowell, and he did so in the belief that he was facing a submission that the 21 day period ran from the date of offer, rather than the date of refusal.
15. Mr Gannon has also drawn to my attention a passing remark, and it is in effect no more than that, by Tuckey LJ in Alghile v Westminster City Council [2001] 33HLR627, at paragraph 35, where he notes correctly that the conditions laid down in section 193(7) are different and supplement the conditions laid down under section 193(5), for the reason that subsection 5 was dealing with a summary process in connection with temporary accommodation, whereas subsection (7) deals with the question of permanent accommodation under part VI.
16. For all these reasons, seeing that this is a pure point of law on the construction of a statute of importance to housing applicants and to housing authorities alike, despite the difficulties that I visualise in the appellant's way, I think that this point is fit for hearing by the full court.
17. The note of appeal contains a second ground of appeal, about which I must say something. The second ground of appeal appears to raise a point of fact by way of dispute with the findings of Judge Cowell as to whether there had been any refusal to found the giving of a subsection (7) notice at all. During this hearing, however, Mr Gannon has clarified the purpose of ground two. This is, as he explains it, not designed to dispute whether there had been any refusal entitling the Borough to give a notice for the purposes of the condition contained in paragraph (a) of the subsection, "refuses an offer of accommodation under part VI", but is intended to bolster the factual relevance of his point of construction. For he submits that the letter of 11th September 2001 was written just within 21 days of the first possible date of refusal found by the review and Judge Cowell, being 21st August, and made it clear that there was no intention to refuse the offer of accommodation, albeit that was queried as being unsuitable.
18. I am not sure that, if Mr Gannon were right on his ground of construction, he would need to show that, following a premature notification, there had been an acceptance of an offer which, under the terms of that premature notification, no longer existed. If, nevertheless, he does need to support in any factual way his point of construction, then I think that he should have permission to rely upon the letter of 11th September 2001 for the purpose of a submission that there was not at that stage any intention to refuse.
19. In the light of this clarification I do not for myself regard this as a true separate ground for appeal, but merely as reliance upon the letter as factual material possibly relevant to the point of construction which Mr Gannon seeks to make. There will, therefore, be permission to appeal on the notice of appeal, subject to the terms of this judgment, and I will direct that it should be heard by a court of three, of whom two at least should be Lords Justice. So far as the time estimate is concerned, I think an hour and a half, and this appeal should be assigned to the short form list.
20. It is said in the skeleton that the application is 14 days late and that the 14 days were lost while funding was arranged because a change of certificate was needed. If a 14 day extension is needed, I am willing to give one. Thank you very much.
ORDER: Permission to appeal on the notice of appeal granted, subject to the terms stated in this judgment.