England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CROYDON COUNTY COURT
Mr Recorder Gore QC
Claim No: 7UB02224

		Royal Courts of Justice Strand, London, WC2A 2LL
		29/10/2008

Lord Justice Rimer :

Introduction

1. This appeal, by Mrs Basra Boreh, is against a decision dated 31 October 2007 of Mr Recorder Gore QC in Croydon County Court. The respondent is the London Borough of Ealing ("Ealing"). The appeal raises an issue arising under Part VII of the Housing Act 1996. All section references are to that Act.
2. Mrs Boreh became "homeless" for the purposes of section 175 following her landlord's repossession of premises she occupied. There was no question of her having become homeless intentionally. She was eligible for housing assistance from Ealing under Part VII, she had a priority need for accommodation within the meaning of section 189 and Ealing accepted that it was under the section 193(2) duty to "secure that accommodation is available for occupation by" her. Such accommodation had to be accommodation that it was satisfied was "suitable" for her.
3. In purported discharge of that duty, Ealing offered Mrs Boreh a house at 9 Tensing Road, Southall, Middlesex ("the house"). Mrs Boreh suffers from various disabilities and declined the offer on the ground that the house was unsuitable. Ealing disagreed and made a decision on 12 March 2007 that it had no continuing duty to re-house her as she had refused to accept the offer. Mrs Boreh requested a review of that decision but on 13 July 2007 the reviewing officer upheld it. Mrs Boreh appealed against the review decision to the county court, which dismissed her appeal. She now appeals to this court, with a limited permission given by Lloyd LJ.

The facts

4. Mrs Boreh is 66. She suffers from miliary tuberculosis, arthritis, gastritis, diabetes, osteoporosis and perhaps heart disease. She cannot stand unaided for more than two minutes. She is a wheelchair user. She cannot use stairs and requires physical assistance from her family in bathing and all domestic tasks. Her main carer is her daughter, Ms Ahmed, who is about 30. Her household includes her daughter and four others aged between about 15 and 20.
5. Ealing offered Mrs Boreh the house by a letter of 9 March 2007. The house has three bedrooms upstairs. On the ground floor it has a kitchen, living room, bathroom (also described as a "wet room with a w/c") and a small rear utility room which can be used as a bedroom. That room has access to the garden at the rear via double glazed doors. By its letter Ealing acknowledged its section 193 duty to secure accommodation for Mrs Boreh and invited her to arrange a viewing of it. The letter asserted that Ealing was satisfied that the property was suitable and that it would be reasonable for her to accept it. It advised her that if she refused the offer, Ealing might consider that it had discharged its duty under section 193, with the result that she would not receive any further offer of housing. That was a reference to section 193(5):

"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, 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."

6. Mrs Boreh did not inspect the house herself. Her daughter, Ms Ahmed, inspected it on 12 March 2007. She was shown round by a member of Ealing's private sector leasing team: the house was not owned by Ealing, it was owned privately. When she arrived at the house, there was no ramp leading to the front door, in front of which there is a large step. Her assessment was that the house had not been adapted for a disabled person. Following the inspection, Ms Ahmed and Mrs Boreh both signed a short statement on an Ealing form dated 14 March 2007 of Mrs Boreh's reasons for refusing the offer. It read:

"Not suitable for my mum's needs. No adaptation, no room in ground floor. Moreover for health and safety reasons it's not suitable. The choice of this house will make our situation worse not better.

7. The reasons were in fact a little more specific and were summarised by Ealing on a page of notes it compiled on 14 March 2007. Their essence was that the rear ground floor room that would have to be used as a bedroom by Mrs Boreh was not really a bedroom, but was a laundry room, to which there was inadequate wheelchair access via the kitchen and toilet; that the house had not been adapted for use by a disabled person; and that there was no ramp for wheelchair access to the front door. Ealing's own notes of the reasons read:

"3 bedrooms upstairs. 4^th room (laundry room) is through kitchen and toilet.

[Ground floor] Room has access either through kitchen & toilet. Room is used for laundry room. It doesn't have disabled access. Mother is in a wheelchair & need space to go to this room if it is called a bedroom.

There is no ramp for her wheelchair access."

8. On the next page, Ealing identified the reasons as four in number and recorded its decision against each:

"Reason 1: Property is 3 bed. The property is 4 bed.

Reason 2: The [ground floor] room is [a] laundry room. This room is 10' x 8' which would take a bed & wheelchair.

Reason 3: Access to [this] room is through kitchen & bathroom. The access to bedroom is via bathroom, kitchen access has been blocked off.

Reason 4: The property is wheelchair friendly. Bathroom doors are wider than normal & are accessible by wheelchair."

9. The reasons as listed did not include a reference to the point that "there is no ramp for wheelchair access", that is to the absence of a ramp for access via the front door. Nor did Ealing provide an answer to that point. The context of its comment that "the property is wheelchair friendly" (followed, in particular, by the reference to the width of the bathroom doors) suggests to me that the comment is to be read as confined to the wheelchair friendliness of the interior of the house: it is answering the "wheelchair unfriendly" points referred to in the comments about the ground floor quoted in paragraph [7] above.

The decision letter

10. Ealing's decision letter to Mrs Boreh is dated 12 March 2007. It is accepted, as is obvious, that that letter was written after the creation of the documents just described, which are dated 14 March 2007. There is, therefore, a mystery as to the dating of the documents: one or more or all of them is or are misdated. But nothing turns on that and I will refer to the documents by the dates they bear.
11. The decision letter opened by Ealing's acknowledgment of its duty under 193(2) to secure accommodation for Mrs Boreh. It referred to her refusal of it "for the reasons you have given to the Council in your statement dated 12/3/07" (a reference to the statement dated 14 March 2007). It said that:

"The Council has carefully considered your reasons but concludes that the accommodation offered to you is suitable for you and that it is reasonable for you to accept it".

It is to be noted that that amounted to a decision that the house was suitable accommodation for Mrs Boreh. There was no suggestion that anything needed to be done to it to make it suitable – for example, the installation of a ramp for front door access. The letter continued by saying that, in coming to this decision, Ealing had taken the following into account:

"You told us that the house has only 3 bedrooms. You said that there is a room on the ground floor which is more like a laundry room and the access to this room is through the kitchen and bathroom. You told us that your mother is wheelchair bound even when she is indoors.

We have spoken to [an] Officer from Private Sector Leased Section, who has viewed the property and he confirms that the access to the ground floor bedroom is through the bathroom and the access from the kitchen has been blocked off. He told us that the bathroom has wider door openings than the normal doors and is therefore wheelchair accessible. He told us that the room size of the ground floor room is 10' x 8' and would have space for a bed and a wheelchair. We have considered this and are satisfied that this 4 bed flat is suitable for your family's housing needs and is wheelchair accessible. Therefore the property is not unsuitable on the grounds of its bedroom sizes.

If you accept the accommodation, the Council will consider that it continues to owe you a duty under [the Housing Act 1996, as amended]. You will also remain on the Housing Register in a band to reflect the fact that you will have reasonable preference, under the LOCATA Scheme [a scheme operated in conjunction with other London Boroughs and Housing Associations to promote new ways of finding accommodation].

The Council therefore urges you to reconsider your proposed refusal and to arrange to attend a Housing Officer at [place and time given, the latter being no later than 3.00 pm on 18 March 2007] in order to accept the property which has been offered to you. If you fail to accept this property by this date, the property will be withdrawn and you will not be made another offer.

In view of our decision that the property offered to you is suitable for you, the Council considers that there is no further legal obligation to provide rehousing for you."

12. That was, therefore, a decision that Ealing had assessed the house as suitable and that, if Mrs Boreh declined to accept it by 18 March 2007, Ealing would have discharged its section 193(2) duty to her and would, by section 193(5), cease to be under any further duty towards her under section 193. The decision letter did not deal with the lack of ramp access to the front door any more than had Ealing's earlier internal comments on Mrs Boreh's reasons why the house was unsuitable. Whilst the second quoted paragraph of the letter twice referred to wheelchair accessibility, the context of the references is accessibility within the interior of the house. The assertion that Ealing had considered Mrs Boreh's reasons "carefully" rings a little hollow. If it had considered her ramp point, its letter did not show that it had.

The request for a review of that decision

13. The decision letter advised Mrs Boreh of her right, if she disagreed with the decision, to request a review of it within 21 days. She was warned that, if she refused the house and the decision on any review upheld the original decision, she would not receive a further offer. On 22 March 2007 White Ryland, her solicitors, asked Ealing for a review of its decision as to the suitability of the house and as to the discharge, following the refusal of the offer, of its section 193 duty. Section 202(1) entitles an applicant to request a review of:

"(a) …

(b) any decision of a local housing authority as to what duty (if any) is owed to him under sections 190 to 193 … (duties to persons found to be homeless or threatened with homelessness), …

(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) …."

14. The review officer was Ms Janice Roach, who wrote to White Ryland on 29 March 2007 explaining that she proposed to carry out the review on 17 May 2007 and inviting written representations by 10 May 2007. She summarised the possible outcomes of the review.
15. On 29 March 2007 Ms Edwards reported on an inspection of the house she had carried out for Ealing. The essence of her report was that access was "fine" throughout the ground floor and that it was only in the kitchen where access might be restricted because of the position of the fridge. She referred to a side alleyway that "has been concreted and is therefore accessible" but also said that there was a "1-foot gap between the cement, which is being rectified." This was a reference to a side alleyway leading to patio doors at the rear of the house through which wheelchair access to the rear room was available and at which no ramp was required. Access to the alleyway was through a doorway in a fence, which Ms Edwards said "may need widening, but as it is a wooden fence it will not be a problem." As for front door access, she said that "For the property to be accessed through the front door a ramp will need to be installed, which owner is quite willing to supply." That is the first reference by Ealing or its agents to the need for such a ramp. The only other aspect of Ms Edwards's report I should mention is what she said about the bathroom, namely that it "has been fully adapted for disabled use. The entire room is a wet room and has been fitted with disabled friendly appliances throughout."
16. Following an agreed extension, by a letter of 14 May 2007 White Ryland (now describing their client as Ms Ahmed) made representations to Ms Roach in support of the review request. They made these points: (i) the property had three bedrooms on the first floor, with the ground floor comprising a toilet, kitchen and separate box/store room to the rear; (ii) the household comprised Mrs Boreh, her daughter and four children. Mrs Boreh was registered disabled; (iii) Mrs Boreh was wheelchair dependent and the house had not been adapted for a disabled person. The front entrance was too narrow and had no ramp. The hallway was too narrow for wheelchair use. The rear ground floor room, intended for Mrs Boreh, measured no more than 10' x 8', with the only access being via the kitchen. This room was a simple storage/utility room; (iv) the ground floor toilet had not been adapted for disabled use; (v) the house was too far from Ealing Hospital, which Mrs Boreh had to attend at least three times a week. They wrote:

"Therefore we submit the Council have failed to offer our client accommodation which takes into consideration the needs, requirements and circumstances of our client's household. The Council have failed to have regard to health and safety considerations and have failed to have proper or adequate consideration to the location and space arrangements for the family in question.

Section 206 … provides that where a housing authority discharges its functions to secure that accommodation is available for an applicant the accommodation must be suitable. We submit the accommodation is not suitable in relation to all the members of our client's household in particular for our client's mother who is disabled.

The factors which have particularly been disregarded in the offer made is [sic] in relation to the physical access to and around the home, space, bathroom and kitchen facilities, access to a garden and modifications to assist sensory loss as well as mobility needs for our client's mother."

The review decision

17. The review decision was given by Ms Roach's six-page letter of 13 July 2007. Her conclusion was that she was satisfied that the house "was and continues to be a suitable offer of accommodation" and she upheld Ealing's decision of 12 March 2007. She referred to the latest occupational therapy assessment of Mrs Boreh carried out on 21 January 2005. The first, second and sixth bullet point recommendations of that assessment that she listed were:

"Level external access

Level access shower with adequate room for use of mobile shower chair (further assessment required) …

Adequate circulation space within property in order to enable wheelchair access."

18. Ms Roach dealt in turn with the points raised by White Ryland. In relation to their points as to the inadequacy of the access to the house for a wheelchair user, the lack of adaptation of the house for a disabled person and the failure to have regard to heath and safety considerations, she said:

"… There is [sic] two ways of accessing [the house]. The front door being the usual option. At the time that the household viewed [the house], Mrs Boreh could not gain access via the front door because there was no ramp in situ. It was confirmed with the owner of the property that a ramp would be fitted. The width of the front door allows adequate access for a wheelchair user. The other entrance to [the house] is via an alley that is situated to the side of the property. The alley is completed concreted and smooth and access is facilitated firstly through the gate in a wooden fence that could be widened if necessary. Then there is a set of double glazed double doors that open to approximately two metres, so there are no difficulties for a wheelchair entering the property this way. On accessing these doors Mrs Boreh would have been in the bedroom adapted for a wheelchair user, the room that had been designated for her use. The access via the route that I have detailed is completely level. Mrs Boreh would also have unhampered access to the garden from her room. …

The previous occupant of this property was a wheelchair user. The ground floor bedroom leads onto what is described by the officer that visited the accommodation as a 'wet' room. It contained a level access shower, with rails in situ and the toilet also had grab rails in situ. There was adequate space for the use of a wheelchair in this area or a mobile shower chair as per the recommendations of the Occupational Therapist.

Mrs Boreh, in order to access the living room would have to go through her bathroom and then into the living room. The only area that Mrs Boreh would not have been able to access with relative ease on the ground floor is the kitchen. The kitchen is the 'galley' type and therefore long and narrow, however, the occupational therapist's assessment in January 2005 confirmed that her daughter and her niece prepared all of Mrs Boreh's meals and Mrs Boreh does not use the kitchen. …

During the visit to [the house], the only issues that were identified that might be deemed health and safety considerations were the absence of the ramp to the front door, which the owner confirmed that he was prepared to have installed. A crack in the cement in the alley that facilitated access to the side entrance that the owner was in the process of rectifying and lastly the fact that Mrs Boreh was unable to access the kitchen with ease due to its 'galley' construction. However, it has been confirmed that Mrs Boreh does not use the kitchen for meal preparation. All of the issues that might possibly have been deemed health and safety considerations have or could have been resolved."

The appeal to the county court

19. Mrs Boreh was dissatisfied with the review decision and exercised her right of appeal to the county court under section 204. Such an appeal lies only on a point of law. It is well settled that the county court's jurisdiction is limited to reviewing the decision on grounds that would justify a judicial review of it.
20. Ms Boreh made a witness statement on 13 September 2007 in support of her appeal. She described the ground floor toilet as "a wet room with w/c". She described access to the ground floor rear room as "solely via the kitchen and/or bathroom". She said she could not access the kitchen because there was insufficient space for a wheelchair to pass through with "relative ease". She explained that her meals were not always prepared for her and she still needed to access the kitchen. She said it was unreasonable for her to have to go through the bathroom each time to access the living room and the ground floor room, the latter of which was meant to be for her sole use. Although alternative access to the living room from the rear room was via the kitchen, she could not pass through the kitchen in a wheelchair.
21. Mrs Boreh also raised the access problem to the house because of the lack of a ramp to the front door. She was therefore unable to access the front door. She was not advised at the time that alternative access was via a side alleyway to a rear access. Her evidence was that the side alleyway was anyway not usable by her because of a crack in the cement in it. In addition, the gate to the entrance to the alleyway would require widening. She also said that there was no ramp adjoining the set of double glazed doors to the rear room, which would have prevented her from accessing the garden from that room. That was a bad point since there was no need for a ramp so to access the garden.
22. Ms Ahmed made a statement as well. She said that when she inspected the house there was no ramp leading to the front door. The ground floor bathroom and w/c had not been adapted for a disabled person. She made the same point about the absence of a ramp to the glazed doors at the rear, adding that "this would have prevented my mother from accessing the garden." Whilst the point about the absence of a ramp was equally bad, the significance of the quoted words is that one inference is that Ms Ahmed thought that the doors gave access merely to the garden – that is, that she was unaware at the time of her inspection of the availability of access to those doors via the side alleyway; and the sense of Mrs Boreh's evidence – her knowledge of the house being derived from Ms Ahmed – was that she had not learnt from her that there was a side alleyway providing alternative access.
23. Ms Roach answered that evidence by a statement dated 25 September 2007. In response to the point about the lack of a front door ramp at the time of Ms Ahmed's visit to the house, she said that "the landlord had agreed to install a ramp." She said Mrs Boreh's prospective bedroom could be accessed through the patio door where there was no need for a ramp. She said the inspection report of 29 March 2007 referred to the alleyway as being concreted and so accessible. She did not answer Mrs Boreh's point that the gate to the alleyway would require widening. Nor did she answer her point that, at the time of the inspection, she was unaware of the alternative access via the alleyway.
24. The witnesses did not give oral evidence before the Recorder and so there was no cross-examination on their statements. It is of some relevance (i) that that meant that Mrs Boreh's assertion that the gate to the alleyway would require widening if she was to use it was unanswered and unchallenged; and (ii) that there is no evidence that, at the time of the inspection on 12 March 2007, the alternative access via the alleyway was drawn to Ms Ahmed's attention.

The Recorder's judgment

25. The issue before the Recorder was the lawfulness of Ms Roach's review decision dated 13 July 2007 to uphold Ealing's earlier decision of 12 March 2007 that its offer of the house to Mrs Boreh was an offer of suitable accommodation. The Recorder said, in paragraph [41], that an interesting question raised was as to the point of time at which the suitability of the offered accommodation was to be addressed. "Does it", he asked, "only apply at the moment in time of the assessment or is it permissible to judge suitability in the light, not only of the current condition of the subject premises, but also proposed alterations, adaptations or additions to it?" His answer was as follows:

"42. No authority has been cited to me on this point. In my judgment, while acknowledging that ultimately this may be a question of fact and degree so that the answer could be different in different circumstances, as in this case, the adaptations or alterations or additions are minor and relatively simple, it is nonsense to suggest that they should be ignored in assessing suitability.

43. The language of Section 206 permits of this view because, in my judgment, a housing authority 'secures' suitable accommodation availability, not just by or at the time or in the terms of the offer, but also in the light of any simple adaptations, alterations or additions that are being proposed. Thus, in my judgment, it was reasonable for the housing authority to consider that this accommodation might have been unsuitable without a ramp at the front door, but would become suitable with one, which had been offered by the landlord. Therefore, suitability is to be judged by reference not just to the state of the property at the time of the offer, but to include the proposals.

44. The proposals in this case broadly were these:

(1) There was to be a ramp at the front door.

(2) The side gate was to be widened if necessary.

(3) There was to be repair of the concrete surface of the side path.

(4) There was to be provision of more bathroom equipment, in particular a mobile shower seat in accordance with the occupational therapist's recommendation.

(5) There was to be removal of the wall cabinets from the proposed bedroom.

(6) If necessary there was to be removal of the fridge from the kitchen to address such concerns that there were about restricted access within the kitchen, there being an alternative position in the downstairs accommodation where it could have been left.

45. All this in the light of the clear and continuing impression that the appellant spent most of her day in bed and was completely dependent on others for all of her needs and was never left alone, and had all of her meals prepared for her. I ask myself whether the review decision was wrong in law."

26. The Recorder answered that last question in the negative. His conclusion, in paragraph [54], was that it "was clearly contemplated by all that there were to be adaptations, alterations and additions" and that the review officer was entitled to conclude that they made the house suitable. The result was that the decision of the review officer was not vitiated by any error of law and so the appeal must be dismissed.

The appeal

27. Whilst I record that we had no argument from either side to the contrary effect, I would respectfully agree with the Recorder that the suitability of offered accommodation is not to be judged exclusively by reference to the condition of the accommodation at the time of the offer, but that the assessment of its suitability can and should also take into account any adaptations or alterations that are, at that time, proposed to be made. I would, however, qualify that by saying that I consider that any such proposals would have to be the subject of assurances that the applicant could fairly regard as certain, binding and enforceable. I also agree with the Recorder that, if the accommodation as it currently stands is unsuitable, it will be a matter of fact and degree as to whether any such proposed adaptations and alterations will be such as to make it suitable. At one extreme, the proposed adaptations may be simple, and easily and quickly effected: for example, the installation of a ramp for access purposes. At the other extreme they may involve the carrying out of such major works as to make the accommodation uninhabitable in the meantime: in such a case the property might well be regarded as unsuitable despite the proposal to carry out the works.
28. Beyond that I consider, with respect, that the Recorder fell into an error of principle. First, a minor point, I do not consider that section 206 has anything to do with the issues before him. So far as presently material, all that section 206 provides is that a local housing authority may discharge its functions under Part VII either "by securing that suitable accommodation provided by them is available" or "by securing that he obtains suitable accommodation from some other person, …." In this case, as the house was privately owned, Ealing was proposing to discharge its housing obligation by the latter alternative. But section 206 says nothing about suitability or its ascertainment and in that context there is nothing magic in the word "securing". It is section 210 that deals with questions of suitability.
29. Second, a major point, the Recorder appears to have proceeded on the basis that in considering the suitability of the house, it was legitimate to take into account proposals as to adaptations that were made right up to the date of the review decision. Thus he said this:

"19. There clearly were discussions and decisions about changes or adaptations to the property between the date of the original offer and the date of the review, although no detailed or precise chronology emerges from the evidence before me. Therefore, these are matters of inference or concession rather than direct evidence. I offer two examples that, in my judgment, are material. For example, it was conceded that the ramp was considered to be reasonably necessary to the front door because arrangements had been made with the landlord to provide it, as was noted in the review decision itself and in Miss Edwards' assessment to which I have just drawn attention. [Emphasis supplied]

20. Another example is that Mrs Boreh, the appellant, herself concedes in paragraph 11 of her witness statement … that: 'The respondent did say to my daughter that they would remove these units.' These units were four kitchen units that were on the wall in the rear room that I have just described as the proposed ground floor bedroom that it was intended that the appellant should occupy. …

54. I have posed the question whether there was a procedural error or a cut corner in this case in not setting out in a document the whole list of adaptations, alterations or additions that were being proposed [a reference to the list in paragraph 44]. I have been persuaded that this provision was not offended. It was clearly contemplated by all that there were to be adaptations, alterations and additions. In my judgment, they would have made the property suitable. To put it more correctly, as a matter of fact, the housing authority as the final arbiter of those issues of fact, was entitled to come to the conclusion on the review that they would have made the property suitable. It is that conclusion that means that the review decision of the housing authority was not perverse."

30. The difficulty I have with those observations is that it cannot have been legitimate for the review officer to take into account any proposed adaptations that were offered only after Ealing's decision letter of 12 March 2007. That letter referred to Mrs Boreh's refusal of the house and re-affirmed Ealing's own assessment that it was suitable for her; it gave Mrs Boreh a last chance to accept the house and warned her that if she refused it, Ealing would regard itself as discharged from any further duty to provide housing for her (section 193(5)). Ealing also pointed out that if she sought a review, and the review officer upheld Ealing's assessment, no further offer would be made. After 18 March 2007, the last date for accepting the offer renewed by the decision letter, it would no doubt have been open to Ealing to withdraw that offer and make a revised one, making clear to Mrs Boreh what adaptations it was proposing; and, had it done so, that would no doubt have triggered a fresh right on the part of Mrs Boreh to consider the suitability of what was being offered. But Ealing did not do that. It stood by the offer it had made.
31. In the circumstances it is obvious that the function of the review officer was confined to a review of the question of whether house as offered to Mrs Boreh on 12 March 2007 – taking into account any proposals to adapt it which Ealing had made by then – was suitable. If and to the extent that Ealing may subsequently have proposed any adaptations or alterations to the house with a view to making it suitable, they were irrelevant to what the review officer had to consider and had to be ignored. If, as at 12 March 2007, the house as offered, including any then proposed adaptations, was unsuitable, it could not become retrospectively suitable by subsequent adaptation proposals.
32. It is not apparent to me that the Recorder – or, more relevantly, the review officer -- drew this distinction. The Recorder appears to have approached the case on the basis that there was some continuing dialogue down to the date of the review decision between Ealing and Mrs Boreh as to required adaptations (his paragraphs [19] and [54]). I do not understand to what he was there referring since there was no evidence of any such dialogue in the documents or in the witness statements and he heard no oral evidence. Even if there had been any such continuing dialogue, it was, for reasons given, irrelevant to the task before the review officer: the cut-off date was 12 March 2007. urehe was there referring, since there was no evidence of any such dihe was referring in paragraphs logue betweeen
33. The only question before the review officer was whether, as at 12 March 2007, Ealing had been properly entitled to regard itself as having made an offer to Mrs Boreh of accommodation that it was "satisfied [was] suitable for [her]" (see again section 193(5)). It was rightly not suggested to us that that formula meant that Ealing's subjective opinion on the suitability of the house was conclusive on that question. In answering it, the review officer was entitled to take into account any proposals which had by then been made to adapt the house so as to make it suitable. Of the six matters listed in paragraph [44] of the Recorder's judgment, the critical one is item (1), which occupied centre stage in the argument and to which I shall return. Item (2) was a point upon which Mr Jacobs focused no separate argument, although it assumed some importance in relation to Ms Zeitler's defence of Ealing's position and I will return to it in that context. All I need to say about it at this stage is that there was no evidence that Ealing had given any thought to the point by 12 March, let alone offered to engage in any widening exercise should such be necessary. As for item (3), whilst Ms Edwards' report said this work was being carried out by 29 March, and whilst Ms Roach may perhaps have found that it was in hand at the time of the visit (her decision letter is ambiguous as to this), there is no evidence that this work was the subject of discussion or of an Ealing offer by 12 March. Again, however, Mr Jacobs focused no separate argument on this point. As for item (4), Mr Jacobs regarded this as a material point because he said it showed that Ealing recognised that the bathroom had been inadequately adapted and needed the provision of more equipment whereas none had been offered by 12 March. But the difficulty I have with item (4), and therefore with Mr Jacobs' submission, is that I do not understand the basis for the Recorder's finding that Ealing was proposing to provide more bathroom equipment. Ms Edwards' report of 29 March was that "the bathroom … has been fully adapted for disabled use … and has been fitted with disabled friendly appliances throughout." That does not suggest that Ealing had offered, was offering or ought to offer anything more. Nor does anything that Ms Roach said in her decision letter. Mr Jacobs submitted otherwise, relying on her statement that "there was adequate space for the use of a wheelchair in this area or a mobile shower chair as per the recommendations of the Occupation Therapist." But that does not reflect an offer by Ealing to provide more bathroom equipment. In my judgment, the Recorder's item (4) reflected a finding of an adaptation that Ealing never offered. I also take the view that there was no evidence before him entitling him to conclude that the review officer had erred in (as I read it) being satisfied that there was no shortcoming in the adaptation of the bathroom. As for item (5), the Recorder's finding was that this minor adaptation was offered to Mrs Boreh at the time of the original inspection of the house by Ms Ahmed (see paragraph [20] of his judgment), and no point in relation to this arises on the appeal. As for item (6), another point upon which Mr Jacob also focused no separate argument, there is no evidence that this had been proposed by Ealing to Mrs Boreh by 12 March 2007.
34. As it seems to me, therefore, the Recorder misdirected himself insofar as he regarded the review officer as entitled to take account of adaptations proposed after 12 March 2007; and he also misdirected himself on the facts in relation to item (4). This conclusion might be regarded as providing a promising starting point for Mrs Boreh's appeal. But Mr Jacobs focused his argument in support of the appeal more narrowly, concentrating on just two points. One was based on the item (4) bathroom adaptation; but since, for reasons given, I consider that his submission has no factual foundation, I will say no more about it. His other point, upon which virtually all the argument turned, was item (1), the proposed adaptation by installing a front door ramp. I turn to that.
35. Mr Jacobs' submission was that the absence of a ramp enabling access via the front door made the house unsuitable for occupation by a wheelchair user such as Mrs Boreh. The provision of such a ramp was therefore essential to its suitability. Yet none was offered by Ealing by 12 March 2007. The absence of such a ramp was expressly referred to in Mrs Boreh's original reasons why the house was unsuitable, Ealing noted it but made no internal response to it in its documents of 14 March. Its decision letter of 12 March 2007, asserting the current suitability of the house, was also silent about the absence of a ramp.
36. Such silence is a mystery. One explanation is that Ealing was taking the view that the alternative access via the side alleyway was all that was reasonably required and access via that route did not need a ramp. That theory finds support in paragraph 34.5 of Ms Zeitler's skeleton argument for the appeal to the county court, in which she asserted that the availability of access via the alleyway meant that the house was suitable even if the absence of a ramp mean that it was not accessible by the front door. Ms Zeitler repeated that argument to us in defence of the Recorder's decision. I do not, however, find that theory convincing. If that had been the outcome of Ealing's claimed careful consideration of Mrs Boreh's reasons why the house was unsuitable, it is inconceivable that it would not have said so in the letter of 12 March 2007. It would have said something like "We note your point about the ramp, but you don't need one, because you can access the house via the side alleyway and through the rear patio doors. The fact that you cannot easily access the front door does not mean the house is not suitable. You do not need to use the front door". I think it probable that if anyone in Ealing had actually found himself articulating such an absurd response to the ramp point, he would quickly have had second thoughts about its wisdom, and would have promptly deleted it and offered to provide a ramp. The inference I prefer to draw is that the more probable explanation is that Ealing simply overlooked Mrs Boreh's ramp point and so failed to deal with it. Although Ms Zeitler urged upon us at some length that it was implicit in the letter of 12 March 2007 that Ealing was telling Mrs Boreh that the alternative access via the alleyway was all she needed and that access to the house was wheelchair friendly, I remain unconvinced by that argument. A reading of the relevant paragraph as a whole, which is what Ms Zeitler rightly urged us to do, not only does not support it, it goes a good way to destroying it.
37. In any event, it would seem to me that the course of events rendered Ealing's stance as at 12 March 2007 as one of essentially historical interest. By that I mean that by the time the question found its way on to Ms Roach's desk, she appeared implicitly to regard ramp access via the front door as a feature that was essential to the suitability of the house for occupation by a disabled person such as Mrs Boreh; and in paragraph [19] of his judgment, the Recorder said that it was "conceded that the ramp was considered to be reasonably necessary to the front door," which I regard as a fair inference as to Ealing's position by the time of the review. It is not in my view possible to read Ealing's stance by that stage as being that ramp access via the front door was unnecessary. I have no doubt that its concession in that respect was right. In my judgment the absence of a front door ramp was a deficiency that obviously made the house unsuitable as it stood. Nowadays it is, or should be, elementary and obvious that such ramp access should be provided. It would have been quick, cheap and easy to do so and it would have made all the difference to the user-friendliness of the access to the house. It was and is no answer that wheelchair access to the house could instead be obtained via the side alleyway and rear patio doors. Mr Jacobs made the point that to limit Mrs Boreh to access via that route could represent a serious risk in the event of fire in the rear of the house: Mrs Boreh could not then easily exit via the front door. I agree, but I anyway consider that a proper regard for Mrs Boreh's comings and goings in the ordinary course of her occupation of the house required that she should be able to access it via the front door.
38. It is, however, I consider of importance to consider when and how it was first proposed to install a front door ramp. Apart from recording Ms Ahmed's own reference to the ramp point in the document of 14 March 2007, the first reference in the documents to the matter is in Ms Edwards' assessment of the house of 29 March 2007, where she reported that "For the property to be accessed through the front door a ramp will need to be installed, which owner is quite willing to supply." She does not, however, say when the owner gave this indication. The next reference to the matter is in Ms Roach's review letter, where she refers to it twice, as follows:

"At the time that this household viewed [the house], Mrs Boreh could not gain access via the front door because there was no ramp in situ. It was confirmed with the owner of the property that a ramp would be fitted. …

During the visit to [the house], the only issues that were identified that might be deemed health and safety considerations were the absence of the ramp to the front door, which the owner confirmed that he was prepared to have installed."

39. Those two passages are a little unsatisfactory. Ms Roach's choice of the passive voice in the second sentence of the first is unfortunate. Who so confirmed it and, more important, when? The use of the passive is a familiar choice for an evasive pleader who does not know his case. The second passage is a little more positive, but still leaves unexplained when and to whom the owner gave the confirmation. Ms Roach's preference for the imprecise is also to be found in paragraph 4 of her witness statement of 25 September 2007:

"Ms Ahmed stated in her witness statement dated 13 September 2007 that, when she visited the property, there was no ramp leading to the front door. However, the landlord had agreed to install a ramp."

That last sentence invites the questions: (i) when and with whom did the landlord make this agreement; (ii) did this pre-date, happen at or post-date the inspection visit; (iii) was the agreement conveyed to Mrs Boreh; (iv) if yes, when, how and by whom; and (v) in particular, was it part of Ealing's case that an offer to install a ramp was (at least implicitly) part of the offer of 12 March 2007?

40. None of those questions is answered by the evidence before the judge. Nor is it apparent that the material before the review officer provided the answers to them. But some answer is provided by paragraph 9 of Mr Jacobs' skeleton argument. After referring to the fact that Ms Ahmed's original inspection of the house revealed the lack of ramp access to the front door, it continued: "The owner of the freehold of the property had informally told [Ms Ahmed] that he would install a ramp in the event of [Mrs Boreh] moving in to the property." Mr Jacobs, in the course of his oral address, somewhat diluted the positive nature of that statement, the dilution being to the effect that his instructions at the hearing in the county court were that the owner may have made such a statement. We were given no clear indication of whether the judge was told of this or, if so, in what terms. The candid admission in the skeleton argument may, however, be regarded as posing a difficulty for Mrs Boreh. If Ms Ahmed (her agent) was told that, were she to move in to the house, the owner would install a ramp, does that not meet her complaint that the lack of a ramp made the house was unsuitable?
41. Mr Jacobs' riposte to that was that any such statement of intention from the owner was not enough. It was not the owner who was offering Mrs Boreh the house and he said it is anyway unclear to what extent, if at all, any such promise (if that is what it was) could have been enforced by Mrs Boreh. The owner was, in the present context, a third party. It was Ealing that was offering Mrs Boreh the accommodation and so it was for Ealing to offer to make good any shortcomings affecting its suitability for a disabled person such as Mrs Boreh. Ealing's original letter of offer dated 9 March 2007 made no offer to install a ramp. Even accepting that the owner did then tell Ms Ahmed that he would install one, Mrs Boreh had not regarded that as satisfying Ealing's obligations because following the house visit she had still objected that the house had no ramp. That was the opportunity for Ealing to respond by saying "We agree that is a defect and we will see that a ramp is installed". But it did not. It ignored the point. It did not even say (if in fact it knew – the evidence does not prove it either way) that the owner had offered to install a ramp and that it regarded this as meeting the objection. The essence of Mr Jacobs' submission was, however, that the owner's statement on the subject was immaterial. The relevant transaction was one between Ealing and Mrs Boreh; and it was for Ealing to meet the point that the house had no ramp. It declined to do so. It was only after 12 March 2007 – by which time it was too late – that it recognised the need for a ramp.
42. Ms Zeitler opened her submissions in defence of the Recorder's decision by reminding us that the only issue before him was the relatively narrow legal question of whether the review officer had erred in law in upholding the decision of 12 March. She complained that Mr Jacobs had trespassed improperly into matters of fact with which we should in no way be concerned. She also said that Mr Jacobs' submissions strayed beyond the narrow ground on which Lloyd LJ had given permission to appeal.
43. As regards the former point, the legal issue before the Recorder, and now before us, cannot be assessed in the abstract. It is only possible to assess the correctness or otherwise of the Recorder's decision by looking at the factual background against which it arose and it is impossible to do that without at least a modest examination of the relevant facts of the nature that Mr Jacobs engaged in. As for the latter point, I do not propose to take space explaining Lloyd LJ's formulation of the point he identified as justifying permission. Suffice it to say that he regarded that point as raised by ground 1 of the grounds of appeal and he gave permission to appeal on ground 1. The case made by Mr Jacobs was squarely raised by that ground.
44. Ms Zeitler then submitted that even though neither of Ealing's letters of 9 and 12 March 2007 offered to install a ramp, that did not mean that the house was not suitable accommodation. That was because the occupational therapist's recommendations in 2005 included that Mrs Boreh should have "level external access" to her accommodation, and such access to the house was provided via the alleyway to the rear.
45. In my view there are two difficulties with that submission. The first is that, by the time the matter was before the review officer, she appears to have accepted that a front door ramp did need to be provided. She was satisfied that such need was met by the owner's offer to supply one, and the Recorder regarded the need for a ramp as a matter that Ealing had by then conceded. In particular, the review officer does not appear to have made a finding that the house was suitable even without a front door ramp access. I do not, therefore, consider that it is open to this court now to entertain a submission that it was.
46. Secondly, Ms Zeitler's submission runs into the buffers on the evidence. Mrs Boreh's unanswered and unchallenged evidence was that the side alleyway provided inadequate access because (inter alia) the gate to it needed widening. Without, therefore, a proposal to widen the gateway, that access was no good. But Ealing made no such proposal, at any rate by 12 March 2007. The proposal that the Recorder found was made (item (2) – referring to a proposal to widen the gate "if necessary": and the unchallenged evidence is that it would be necessary) can only have been made after 12 March 2007. The review officer's thought in this respect was fathered by Ms Edwards' report of 29 March 2007, a report which does not appear to have been based on any hands-on examination of whether the gateway was in fact already wide enough. I do not, therefore, accept Ms Zeitler's submission that the house was suitable when offered even without the inclusion of a proposal to install a ramp. The evidence did not prove that the alternative access was usable by Mrs Boreh in her wheelchair. The review officer could not properly have found that Ealing was entitled to be satisfied, as at 12 March 2007, that the house, in its then condition, was suitable for Mrs Boreh's needs.
47. Ms Zeitler addressed us at some length and, whilst not all her submissions were reduced to identifiably concrete propositions, I understood her at times at least to come close to advancing the argument that even if the house was not in fact suitable as at 12 March 2007, the language of section 206 was sufficiently generous to enable Ealing to rely on subsequent proposed adaptations to it which, if made, would make it suitable. That was undoubtedly the main thrust of her written argument. I have already given reasons why, with respect, I regard it as wrong, as well as explaining why I regard section 206 as irrelevant to the questions raised by the case. One submission that I did not, however, understand Ms Zeitler to make – even though the court gave her at least one express opportunity to do so – was that, given paragraph 9 of Mr Jacobs' skeleton argument, the short answer to this appeal was (i) that the owner's offer at the inspection meeting to install a ramp provided an answer to the complaint that the house was unsuitable for access reasons, (ii) there was (for reasons given) nothing in Mr Jacobs' bathroom point, and (iii) Mr Jacobs had also focused no attention on the other matters listed in paragraph [44] of the Recorder's judgment so that they could be ignored. On that basis it might then have been argued that the review officer's decision to uphold the earlier decision of 12 March 2007 could not fairly be criticised as irrational. I did not, however, understand any such submission to be advanced, even as an alternative to the primary submission that the house, as it stood – and without any proposal to install a ramp – was suitable for Mrs Boreh's needs as at 12 March 2007.

Conclusion

48. Whilst I was for some time concerned about the effect of the admission in paragraph 9 of Mr Jacobs' skeleton argument on Mrs Boreh's case, I make it clear that I intend no criticism at all of Ms Zeitler for not adopting the argument that I have just outlined. Quite apart from the fact that we do not know what her instructions on the point were, it seems to me that we cannot and should not take account of that admission at this stage in this litigation. The appeal before us is an appeal against the Recorder's decision and the appeal before him was one that went to the lawfulness of the review officer's decision to uphold Ealing's earlier decision of 12 March 2007. The appeal is therefore a second appeal in which our function is limited to re-considering the lawfulness of the review officer's decision. As to that, there is no evidence of any such admission having been made before the review officer; and her decision was not one that took account of such an admission. Her decision certainly did take account of a statement by the owner of the house that he would install a ramp, but I have indicated the imprecision as to the evidence about when he did so; and it by no means follows that the review officer had in mind anything said by him at the original inspection. She may have been referring to some subsequent statement.
49. The question before the review officer resulted in a six-page decision letter. That was largely the result of the fact that she had to deal with a number of points raised by Mrs Boreh as to the justification for the decision letter of 12 March, most of which were of no substance. Judging the matter by reference to the arguments we have heard, the central question with which she had to deal was whether, given the absence of front door ramp access, the house as offered to Mrs Boreh on 12 March 2007 was or was not suitable. By the time the matter was before the review officer it was, as the Recorder found, conceded that ramp access had to be provided, and the review officer said that the owner had agreed to provide it. It is, however, unclear when he so agreed. As it seems to me, the critical question the review officer had to ask herself was whether, when the letter of 12 March 2007 was written, an assurance upon which Mrs Boreh could be expected to rely had already been given to her that, if she accepted the offer, a ramp would be installed.
50. It is plain that no such assurance had been given by Ealing. And if Ms Zeitler's submissions are a fair reflection of Ealing's thought processes at the time, Ealing's attitude was that Mrs Boreh did not need any such ramp because she did not need to use the front door. The admission in paragraph 9 of Mr Jacobs' skeleton argument – diluted by his oral submission – provides a basis for a conclusion that the owner either did give or may have given some such assurance. But there is no evidence as to this, nor is there any basis for a conclusion that Ealing or the review officer was aware of any such assurance having been given at that time. If the owner had then given such an assurance, I am not convinced by Mr Jacobs' submission that it would have been a thing writ in water, on the basis that any assurance had to come from Ealing.
51. I do not, however, propose to express a final view on that. I prefer to rest my own decision on the basis that (i) without front door ramp access the house was unsuitable; (ii) although the absence of such a ramp was expressly pointed out to Ealing, it refused to acknowledge or deal with the point in its letter of 12 March but instead adopted the stance that the house was wheelchair friendly as it stood and (by inference) that no adaptations needed to be made to it; (iii) Ealing subsequently conceded the need for a front door ramp, and the review officer regarded the need for its provision to be met by the owner's agreement to provide one; but (iv) there was no finding by the review officer that any such agreement pre-dated the letter of 12 March 2007 and so served to make the offered house suitable despite Ealing's own omission to answer to Mrs Boreh's ramp point. In my judgment these considerations lead to the conclusion that the review officer's decision to uphold the decision of 12 March 2007 was flawed in law. It was flawed because she did not identify any evidential foundation sufficient to justify the upholding of that decision.
52. I would therefore allow Mrs Boreh's appeal, set aside paragraphs 1 and 2 of the Recorder's order of 2 November 2007 and vary Ealing's decision of 13 July 2007 by substituting for it a declaration that Ealing's offer of the house to Mrs Boreh was not an offer of suitable accommodation and that Ealing has not been discharged from its duty towards Mrs Boreh under section 193. If my Lords agree with this conclusion, I would invite the parties to endeavour to agree an appropriate form of order.

Lord Justice Toulson :

53. I agree.

Lord Justice Wall :

54. I also agree that this appeal should be allowed for the reasons given by Rimer LJ, whose judgment I have had the advantage of reading in draft.
55. I have to confess to some impatience that this case should not only have required an appeal to the Recorder but also a full hearing as a second appeal in this court. In my judgment, perhaps the most important issue in the case (the need for a ramp to enable the appellant to gain access to the property through the front door) could and should have been capable of resolution on the ground. That viewpoint is reinforced by paragraph 41 of the skeleton argument for the appellant in this court which states in terms that the appellant would most probably have accepted the accommodation had the offer contained any condition or undertaking to render it suitable.
56. As it is, however, I respectfully agree with Rimer LJ that it is the decision letter of 12 March 2007 which is the critical document, and as he has demonstrated, that letter makes no reference to the property being unsuitable because there is no ramp allowing the appellant to gain access to the property by the front door.
57. In my judgment, this matter could have been corrected by Ealing in a number of ways. For example Ealing could have acknowledged on the review that the property was indeed unsuitable without a ramp to the front door, and made a fresh offer, this time giving an undertaking or some other enforceable assurance (I respectfully endorse Rimer LJ's phrase "certain, binding and enforceable") that a ramp would be provided. By contrast, however, Ealing's review letter of 13 July 2007 repeats in terms its view that the property "was and continues to be a suitable offer of accommodation", and only addresses the question of the ramp with the assertion: "It was confirmed with the owner that a ramp would be fitted". For the reasons Rimer LJ has given this is simply not enough.
58. In my judgment, therefore, the message of this case is that however pressed local authority housing officers may be, they must address their minds to the real issues in any given case, and where simple alterations are required to render a property suitable, those issues must be addressed with clarity and certainty in the decision letters they write.