England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BIRMINGHAM CIVIL JUSTICE CENTRE
(RECORDER McNEILL QC)

		Royal Courts of Justice Strand, London, WC2A 2LL
		14th June 2007

Lord Justice Ward:

1. For 27 years Karen Williams ("the appellant") lived in Acocks Green, Birmingham, the home of her late parents. They were joint tenants of the property let to them on a secure tenancy by the Birmingham City Council ("the respondent"). Her mother died in 1989 and by operation of law her father, although a joint tenant, had to be treated as the successor to the tenancy. He died in May 2005. The appellant was thus not herself entitled to a second succession to that tenancy on his death. Eventually the Council were obliged to serve notice to quit, which would leave her and her two children, a boy who was seven years old last month, and a girl who will be three next week, homeless. She duly applied to the Council for assistance in obtaining accommodation under part VII of the Housing Act 1996 ("the Act") dealing with homelessness, and so began her travails which lead her to this Court.
2. On her application form she did not exclude any area of Birmingham as being unsuitable for her and the children, although at some later stage she appears to have expressed preference to live in certain areas including Kings Heath. She did however in that application form emphasise that she had these two young children, that, having no transport of her own, she was reliant on public transport and in need of the support of her family in the Acocks Green area. On 27 July 2005 the homelessness officer informed her that the Council were satisfied that she was eligible for assistance, that she was threatened with homelessness and had a priority need as defined in the Act. She was, however, warned that the Council housing policy was that applicants would receive only one offer of suitable accommodation.
3. On 11 April 2006 the Council did offer her accommodation at an address expressed in a letter to be in Kings Norton, but we are told, although there is some confusion about it, that it is actually in Kings Heath; but that, in any event, is a minor point. She was again warned that if she decided to refuse that offer without good reason, the Council would consider that it had discharged its duty under the Act and that accordingly no further offers of accommodation would be made. The accommodation offered was a three-bedroomed maisonette on the third floor with some shared garden at the back. She rejected the offer and a computer generated record suggests that the reason she gave at the time was that it was "too far from school", although other comments were noted such as "also no garden" and "too many steps up to the front door". Nonetheless she exercised her right to request a review of that decision pursuant to section 202(1)(f) of the Act.
4. In that application for review she gave the following reasons for rejecting the offer:

"1. You go through a dark entrance, before you go up two flights of stairs and with my daughter in her pram, [I interpolate to observe that at this time the little girl was 22 months old] it would be difficult going up and down stairs all day, and the stairway smelt like someone was using it as a toilet. My daughter already suffers with her health, she keeps having chest infections, her doctor has made an appointment at the hospital for her, because he is worried she has chest infections too often, and to know that that property would not help her health at all having to go up and down a stairway that somebody uses as a toilet.

"2. My son does not want to leave his school. He has lost enough in this past year, losing his granddad, his home, and with me being very ill and being in hospital for two weeks. It would break his heart to lose all his friends. I would be getting 8 buses there and back every day.

"3. There was no garden, it might sound petty, but it means a lot to children, where they are supposed to play, when I went to see the property, I saw some children, they were just walking up and down the balcony, that was their play time, they looked like caged animals, that is no life for young children. I have lived at 62 Fox Hollies for 27 years, and have never done anything wrong, I feel we are being punished because my father had passed away."

She supplemented those reasons in a letter received by the Council on 24 May 2006, the material parts of which made these points:

"It was a maisonette, I have never seen anything so horrible in all my life, you have to walk through a dark entrance, and then up two flights of stairs, before you get to the front door, it would be impossible and very difficult to go up and down two flights of stairs all day with my daughter in her pram, and it had no garden, and it was too far away from my son's school, I would be getting at least eight buses every day, backwards and forwards all day, that wouldn't be a life for my children, I know their lives would suffer, and I would fear for their safety living there. I feel they deserve something better than that, hopefully a house and hopefully not too far away from my son's school. My son does not want to leave his school and his friends, he has lost enough this past year, with losing his granddad and now his home, and my health has suffered too, with all the worry and stress, and my son would be heart broken if he lost all his friends and family...

"I hope you will come to the same conclusion, when you review my case, and hopefully offer me a suitable house, as near as you can to my son's school and our family.

"I have lived here for 27 years, and we have never done anything wrong, and now I have lost my father (which has really hit us all really badly, and we have not even had time to grieve for him properly, because of all the stress and worry of where my children are going to live.

"I feel like we are being moved away from my only remaining family.

"I feel it would be unkind to move my children away from their school, friends and family.

"Please find it in your hearts to find us a house, within a short distance from my son's school and our family...

"P.S. I have recently been in hospital for two weeks, I had an operation to remove my gall bladder, I was very poorly, I got out of hospital on Tuesday 16 May 2006, so please could you take this into consideration when you make your decision."

It was a heart rending letter.

5. The reviewing officer duly considered it. On 30 September he responded, analysing the reasons advanced by the appellant for the property being unsatisfactory in this way:

"The property did not have a garden; it was on the second floor so you would have difficulty in accessing it with a child in a pushchair; it was too far away from your son's school; you want to live in a house; you had an operation in May; you and your family would not feel safe living at the property."

He dealt with the objection in the following way:

"There is a garden at the property shared with other residents.

"The accommodation offered is family accommodation. There are many households in a similar makeup who have to negotiate flights of stairs on a daily basis. I do not consider that you are any more disadvantaged than them. I am not aware that anyone in the household has any medical condition that would prevent them from negotiating the stairs. Accessing the accommodation via stairs may not be ideal, however I do not consider that this makes the property unsuitable. I do not see any reason why on entering the block your pushchair cannot be left on the ground floor for a few minutes while you make your youngest child safe and secure in the property before retrieving the pushchair."

I interrupt to observe that the next paragraph which follows has been the focus of the attention in this appeal. That reads:

"It is an unfortunate circumstance of homelessness that children have to change schools when suitable accommodation is offered. In your five-year-old son's case I do not consider that this move would be too detrimental to his educational development in the long term. I disagree with your view that Acocks Green is a long way from Kings Heath, it is a journey of 5.5 miles. Also, although not ideal, the property is within two bus journeys (numbers 50 and 11) to Acocks Green."

Then the letter continued:

"When you made your homelessness application you signed to acknowledge, "where the City Council has a duty to secure accommodation it will make one suitable offer of suitable accommodation of any type of property. However if no accommodation is available in your preferred areas another offer will be made anywhere in the city." You did not make a request for any area in the city not to be considered for.

"The property offered to you was consistent with the City Council's current allocation property. A family of your size is considered for the following types of property: … three bedroom high and low rise flats and maisonettes …

"I have considered your recent health and operation, however I do not feel this shows any need or requirement for any specific type of housing.

"There is no evidence to suggest your family would be unsafe at this property …"

So he concluded that:

"… the Council's homeless policy is to make applicants who are accepted as being in priority need one suitable offer of accommodation. The property on offer must be fit to live in, not cause overcrowding and be affordable to the applicant. I am satisfied we met her obligations by offering you this property.

"Taking into account all the above reasons, the offered property was of a suitable size to meet your and your family's housing needs. The full weekly rent was eligible for housing benefit … We are not aware of any harassment/violence … Therefore I consider it was reasonable for you to accept.

"Accordingly, I must inform you I have decided to confirm the decision of discharge of duty."

6. She was properly informed of her right under section 204 of the Act to appeal to the county court against that decision on a point of law. She did so. Her appeal was dismissed on 21 December 2006 by Miss Recorder McNeill QC sitting in the Birmingham County Court. She appeals with permission granted to her by Chadwick LJ.
7. The issues which arise on this appeal have been much refined during the course of the argument. There is no longer a challenge to the rationality of the decision. Instead the complaint is directed only to the failure of the reviewing officer to make further enquiries of the appellant in order to clarify areas of uncertainty, namely first, how much time is actually taken in the eight journeys to and from school; secondly, what arrangements could be made, for example by her partner who lived with them, for the younger child to avoid her having to undertake this travel; thirdly, if the little girl had to accompany mother, how onerous is that? Finally, what alternative schooling was available near this maisonette?
8. So it seems to me that we can limit that appeal accordingly and ask as the first question: what is the nature and scope of this duty to enquire? Mr Steven Cottle for the appellant has ranged widely in his submissions oral and in writing. He draws our attention forcefully to the Code of Guidance. In fact there are two relevant codes because the 2002 guidance was replaced in July 2006 by the department's new code. I take it from the new code, there being no substantial difference between them. The first passage upon Mr Cottle relies is paragraph 6.15, providing:

"The obligation to make enquiries, and to satisfy itself whether a duty is owed, rests with the housing authority, and it is not for applicants to 'prove their case'. Applicants should always be given the opportunity to explain their circumstances fully, particularly on matters that could lead to a decision against that interest, for example, a decision an applicant is intentionally homeless."

Now the difficulty about this is that this particular paragraph is in that part of the chapter which is dealing with the enquiries which a local authority is obliged under section 184 to make in order to satisfy itself whether the applicant is eligible for assistance. It does not bear directly upon enquiries, if any, that have to be undertaken by a local authority in considering a request for a review.

9. Then Mr Cottle relies, understandably, on the guidance that is given as to the suitability of the accommodation and he draws our attention to passages, among others, like 17.2:

"… the accommodation must be suitable in relation to the applicant and to all members of his or her household who normally reside with him or her,"

and paragraph 17.4, which provides that:

"… consideration of whether the accommodation is suitable will require an assessment of all aspects of the accommodation in the light of the relevant needs, and requirements and circumstances of the homeless person and his or her family. The location of the accommodation will always be a relevant factor".

That leads on to paragraph 17.41, emphasising that:

"The location of the accommodation will be relevant to suitability and the suitability of the location for all members of the household will have to be considered … The Secretary of State recommends that local authorities take into account the need to minimise the disruption to the education of young people, particularly at critical points in time such as close to taking GCSE examinations. Housing authority should avoid placing applicants in isolated accommodation away from public transport, shops and other facilities, and, wherever possible, secure accommodation that is as close as possible to where they were previously living, so that they can retain established links with schools, doctors, social workers and other key services and support essential to the well-being of the household."

10. All of this is pertinent to the question of the suitability. It does not bear exactly on the issue before us, nor does paragraph 19.12, to which our attention is drawn. That reads:

"Regulation 8 provides that in cases where a review has been requested, if [and I emphasise "if"] the housing authority, authorities or person carrying out the review consider that there is a deficiency or irregularity in the original decision, or in the manner in which it was made, but they are minded nonetheless to make a decision that is against the applicant's interest on one or more issues, they should notify the applicant:

"(a) that they are so minded and the reasons why; and,

"b) that the applicant, or someone acting on his or her behalf, may within a reasonable period, make oral representations, or further written representations, or both oral and written representations."

Now this is closer to home, but again it is not strictly applicable, because echoing as it does the actual provisions of regulation 8 of the Allocation of Housing and Homelessness Review Procedures Regulations 1999, it is conditional upon the housing authority considering that there was a deficiency or irregularity in the original decision, and that is not the case here.

11. Our attention was also drawn to regulation 6 of those regulations, where when a request for review has been made the authority must notify the applicant that they may make representations in writing, but that has been done in this case, so we gain no help from regulation 6.
12. In the end Mr Cottle was driven to concede that one must look at general principles of administrative law to discover the nature of the duty for which he contends.
13. Both sides have relied on and are content still to rely on the decision in the R v Islington Borough Council ex parte Thomas [1990] Vol 30 HLR (page 111 tab 5 in our bundle). There Mr Roger Henderson QC, sitting as a deputy judge at the Queen's Bench Division, was dealing with the submission that in the same way as the Council was under a duty to enquire under what was then section 62 of the 1985 Act, now section 184 of the 1996 Act, so too there is a duty to enquire into the suitability of the premises under offer. He said at the beginning of page 119 over to page 120:

"Having regard to the primary principle at common law enunciated by Lord Green MR in Associated Provincial Picture Houses and Wednesbury Corporation [1948] 1 KB 223, 229, in the form that "a person entrusted with a discretion must call his own attention to the matters which he was bound to consider" when exercising that function, I do not consider that there is a great difference of substance in the duty of inquiry between that obtaining under section 62 and that necessary to the performance of a section 69 function once the duty of enquiry has arisen. I do not propose here to set out the case law which establishes the general duty. Although it is phrased differently in different cases, in the end it may come to the same thing, namely that having due regard to the statutory context and the function to be performed and the object to be achieved, a person charged with a statutory function must make or cause to be made such enquiries as will allow him to be satisfied that he can properly discharge his role. He must therefore make or cause to be made the necessary enquiries to that end; not all inquiries that could be made, but sufficient inquiries to achieve the required degree of satisfaction.

"Lord Diplock in Secretary of State for Education and Science with Thameside Borough Council [1997] App Cases 1014, at page 1065, put the matter in these words:

"Did the Secretary of State ask himself the right question and take reasonable steps to acquaint himself with the relevant information to have enabled him to answer it correctly?'"

14. The Recorder accepted Mr Henderson's formulation of the proper approach and she set it out in paragraph 17 of her judgment. Both Mr Cottle and Miss Rowlands, who appear as they did below, are content with the test there expressed, and I proceed accordingly. Like Mr Roger Henderson, I see no point in the circumstances in further examining the case law. I need only add what Brooke LJ said in Cramp v Hastings Borough Council [2005] 48 Housing Law Reports 786 at paragraph 58:

"In each case it was for the Council to judge what enquiries were necessary, and it was susceptible to a successful challenge on a point of law if and only if a judge in the county court considered that no reasonable Council could have failed to regard as necessary the further enquiries suggested by the appellants' advisers."

15. I daresay much the same thing has been said by others in other cases. Miss Recorder MacNeill addressed that very question and came to her conclusion in paragraphs 36 to 38 of her judgment. She said:

"36. Undoubtedly in this case the Council could have made further inquiries, but the test which I had to apply is whether it failed to make inquiries which no reasonable Council could have failed to regard as necessary. The respondents gave the appellant full opportunity to set out her grounds for review and she availed herself of that opportunity. Her grounds included the distance from her son's school and she spelt out the undesirability of a change of school for her son for a number of reasons, including the eight bus journeys per day which, as she put it, would not be any life for her children, her children including her two year old child.

"37. It is plain that Mr Dewell [the reviewing officer] took those journeys into account and accepted their necessity, also that he took into account the age of the appellant's son and the distance of the school, which was five and a half miles. Mr Dewell knew the ages of the appellant's children and the fact (because it was set out in the letter and indeed in the homelessness decision review form) that the younger child was still of an age when he or she required a pram or pushchair. Although the appellant and her family had had a difficult and distressing year, particularly with illness and bereavement, as well as potential eviction from her home, there was no evidence that the appellant's son had need of any particular type of school since he was in mainstream education with no apparent special needs.

"38. Bearing in mind the broad band of reasonableness which I must apply, I cannot say in this case that any reasonable Council would have made further inquiries, either in relation to travelling times to and from the existing school nor as to the other available options for schools in the area."

16. So the next and final question in the appeal is whether the judge was justified in coming to that conclusion. Mr Cottle's submission is that no reasonable reviewing officer could have concluded that he had enough material before him in the appellant's request for a review and/or in her accompanying letter, and in his own minimal researches to the actual distance between the home and the school, and the mere fact that two bus journeys were involved four times a day.
17. Given the critical importance of his decision, which would, subject to appeal to the county court, remove this family from the range of assistance available to the homeless, it behoved him, submits Mr Cottle, to enquire further into the four matters I mentioned earlier, namely:

i. the time involved;

ii. the care arrangements or the alternative care arrangements;

iii. the onerousness of the journey if the toddler had to accompany her mother;

iv. the availability of alternative schooling.

18. Speaking for myself, I would not have felt comfortable about coming to a fair decision without knowing a bit more about the first three matters, but that is not the test. The question is whether no reasonable reviewing officer could have failed to regard it as necessary to make further enquiries. He knew how far apart the home and the school were. He knew that two bus journeys were necessary. Having local knowledge, he could well have estimated the time those journeys would take. If help was indeed available, perhaps from the appellant's partner, so that the little girl was spared the bus journeys, then the burden on the mother was accordingly reduced. On the other hand, even if the toddler were in her pram, with the facts which he readily knew, it would not have needed much experience of life or much imagination to conclude as he did that the circumstances were not ideal.
19. But the crunch point here, it seems to me, is that there was an alternative choice which would alleviate and perhaps even eliminate this burdensome travel: namely, the finding of a school closer to home. It is apparent from the structure of the reviewing officer's reasons that this was the fact which weighed heavily with him. That is why he mentioned it in the first sentence of the relevant paragraph. That was always going to be the case because it is a statement of the obvious that:

"It is an unfortunate circumstance of homelessness that children have to change schools when suitable accommodation is offered."

20. He took the permissible view that the change in schooling would have no long term detrimental effect on the little boy, who was not at that stage at any crucial period of his schooling, and since those conclusions are not challenged as irrational it does not seem to me that it was perverse of the reviewing officer not to inquire further into the difficulties of travel to and from the old school. I emphasise that I am acutely conscious that this was, as I think Miss Rowlands for the local authority readily acknowledges, to be a harsh decision, made at a time in the appellant's life when it was beset with dreadful problems, as she set out in her letter. They were still grieving and had not had a decent opportunity to grieve the loss of the father and grandfather. They faced eviction. The mother herself had been in hospital. There was disruption everywhere, and I have no doubt that when she made her application for a review weeks after her coming out of hospital she was in the most fragile condition. So she has my overwhelming sympathy, and I would, if I could, ride to her assistance. But conscientiously I cannot say that the Recorder was wrong in law to conclude as she did that this was not a case where it was incumbent upon the local authority to enquire further.
21. Consequently I have no option but to dismiss this appeal.

Lord Justice Buxton:

22. Mr Cottle's emphasis in criticising this decision was on the difficulty of the journey that would be presented between the present school attended by the young boy and the intended future place of residence. As to that issue, which was originally only one amongst many issues, all the reviewing officer had before him from the applicant was part of one paragraph of her statement of reasons for review and part of one sentence in her covering letter. My Lord has set these out but I will repeat them. In the request for review the applicant said:

"My son does not want to leave his school ... He has lost enough in this past year, losing his granddad his home and with me being very ill and being in hospital for two weeks. It would break his heart to lose all his friends. I would be getting eight buses there and back every day."

In the letter, having set out the complaints about the nature of the accommodation, it being a maisonette and so on, the applicant said this:

"I would be getting at least eight buses every day backwards and forwards all day, that would not be a life for my children."

23. The reviewing officer rejected that as a valid objection to the new property. As we have seen in the crucial paragraph from his determination that my Lord has set out and emphasised, the reviewing officer set out his own view as to the length of the journeys. The complaint is that he should have gone back to Mrs Williams and asked her for more about her reasons for objecting to the bus journeys, presumably even accepting that the view that the reviewing officer took of those journeys was correct. Now in the case as presented to the reviewing officer, any argument that he should have made further enquiries about the bus journey question had to be based on her stated objection as to the number and length of her journeys. Any further "evidence" about that would simply address a question of objective fact which the reviewing officer had already answered from his own enquiries; and in this jurisdiction he was entitled to make his own enquiries and to rely upon his local knowledge.
24. It however became clear in the submissions to us that the main reason for saying that further enquiries were required as a matter of law (and that is how the case has to be put) was not that there might be a valid dispute about the number of journeys and the time for them; but rather that on such further enquiries being made of her, Mrs Williams would then have explained that she had difficulty in general about bus journeys because of the difficulty of dealing in such journeys with her younger child.
25. Now although she had referred to the problem of the younger child in a different context in her application, that is to say in the context of accessibility to the maisonette, I cannot accept that, on those facts or claims as they were before him, it was incumbent on the reviewing officer to consider whether there might be, unstated as they so far were, difficulties about the journey in relation to the younger child, and to give Mrs Williams an opportunity to expand on them. The local authority is entitled at least to start from the way in which the objections are put to it. The reviewing officer could have sought to improve the applicant's case in that respect, but he did not err in law in not giving her an opportunity so to do.
26. However, as my Lord has pointed out, the issue as to journey times does not in fact arise in this case. It does not arise because these journeys are only needed if the child does not change to a school properly convenient to the new accommodation. In the first two sentences of his important paragraph the reviewing officer said, first pointing out that children have to change schools when new accommodation is offered:

"In your five-year-old son's case I do not consider that this move will be too detrimental to his educational development in the long term."

Mr Cottle declined to say that the reviewing officer should have made further enquiries about the availability of alternative schooling. He was, with respect, right not to make that submission. As the learned Recorder pointed out in paragraph 37 of her judgment, there was no evidence in this case that the child had any special needs that had to be accommodated, nor that any particular type of school was necessary for him. Of course, he and his parents would much prefer him to stay where he was, but preference of that sort cannot be determinative. Nor indeed was there any suggestion that the reviewing officer was assuming wrongly that there would be appropriate schooling available for him. No doubt the reviewing officer assumed, and was entitled to assume, that the educational resources of the Birmingham City Council would be available near to the new council accommodation, as they had been near to the old. Nor, as my Lord has pointed out, was it suggested that the conclusion that the reviewing officer reached as to the reasonableness of a move from one school to another was in any way irrational. Granted those conclusions, which either are not challenged or cannot be challenged, the question of investigating the bus journeys became, or should have become, academic, because the problem that presented could, in the view of the local authority, and reasonably so, be cured by a change of school.

27. That therefore made this application, and this appeal, really in my view impossible to sustain. I would agree that the appeal must be dismissed.
28. I would add one further thing. It has been suggested that the decision was a harsh one and indeed Miss Rowlands on behalf of Birmingham in her very fair submissions may have accepted that that was so. I quite accept everything that has been said about the difficulties of this decision for Mrs Williams in the circumstances in which she currently finds herself. However, we do have to remember that the local authority's responsibility for managing its public housing stock is a long term responsibility, which has to look to the long term proper use of that stock. The fact that, in what is hopefully a short-term situation, particularly in view of the recent bereavement, a decision bears hardly upon a particular person, is not in my view a ground for criticism of the local authority. That it is conscientiously exercising its obligations in the longer term is no consolation to Mrs Williams; but I do think it is a reminder of the very great difficulties that local authorities have in managing a rapidly diminishing public housing stock.
29. However, as I say, as far as this appeal is concerned I would dismiss it.

Lord Justice Lawrence Collins:

30. I have considerable sympathy for Mrs Williams but I agree that the appeal should be dismissed.


Order: Appeal dismissed.