England and Wales Court of Appeal (Civil Division) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		3rd March 2008

Lord Justice Waller:

1. This is an appeal from the decision of HHJ Bailey sitting at the Central London County Court, given on 23 August 2007, which in its turn was an appeal under s.204 of the Housing Act 1996.
2. Putting it shortly, Westminster Council had accepted that Mr Hassan Omar and his wife and son were homeless and persons to whom they owed an obligation to provide accommodation. They offered accommodation outside the Westminster area which they had decided was suitable. Mr Omar refused that accommodation on the grounds that it was not suitable, having regard to the medical condition of his baby son, who had been born prematurely.
3. The council treated that refusal as entitling them to say that their obligation to accommodate and to provide housing had been discharged. Mr Omar took both decisions to review and the reviewing officer upheld both decisions -- that is to say that the accommodation was suitable and the decision to treat the council's obligation to provide housing as discharged.
4. The issue on the appeal before the judge and before us related to the material to which the reviewing officer might have regard in making his decisions. Should he be confined to facts as at the date when the original decisions were made or should he be considering the position as at the date of review? If he should have confined himself to facts as at the date of the original decisions, a second question arises as to whether he did so and/or as to whether if he did not do so it is, at the very least, clear that the decision must inevitably be the same.
5. The judge took the view that in relation to the decision on suitability, the reviewing officer was right to take into account facts as at the date of review, but as to the decision that the council had discharged its obligation to house, he took the view that only facts existing when that decision was taken should be taken into account. He held that the reviewing officer only took into account facts existing at the time of that original decision in upholding that decision. He also held that there was no point, in any event, in sending the matter back for further review because a decision was bound to be the same.
6. The facts, in a little more detail: Mr Omar and his wife were living in cramped accommodation from which, on the birth of their son, they were ejected. That son was born prematurely on 7 December 2006 in the Chelsea & Westminster Hospital. For some 20 days the son was an inpatient at the Chelsea & Westminster Hospital. He had two days of high dependency care and then 18 days of special care. He was, however, discharged from the hospital on 28 December 2006. In the meanwhile, on 14 December 2006 Mr and Mrs Omar had made a homelessness application to the City of Westminster. By letter dated 15 January 2007 the council informed Mr Omar of their decision, taken under s.184(3) of the Housing Act, that they accepted that he and his family were homeless; that they were eligible for assistance; had a priority need; and did not become homeless intentionally.
7. Having reached those decisions, as the letter accepted, there was imposed on the council, under s.193 of the Act, a duty to provide accommodation for occupation of the family. That duty would cease by virtue of ss.193(3) and 193(5):

"if the applicant, having been informed by the authority of the possible consequences of refusal and of his right to request a review of the suitability of the accommodation, 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."

8. The authority supplied, initially, temporary hotel accommodation, but said that they would move the family to a more suitable temporary home within six weeks. On 19 February they offered, as temporary accommodation, a two-bedroom property at 70 Brettenham Road, Walthamstow, E17. They gave notice that by providing "a suitable temporary home" they had discharged their duty, and if the offer was refused the family would have to find their own accommodation unless they successfully challenged the council's decision. They informed Mr Omar that he could ask the council to review their decision.
9. It is not absolutely clear what information the decision-makers had at this stage, but it seems reasonably likely that the decision-makers, as at this stage, had what is called the "discharge summary" from the hospital. That discharge summary is at p.115. It starts a little earlier, but the relevant passage is at p.115, summarising the position as at 28 December:

"This baby boy was born prematurely at 34+5. He was admitted to the neonatal unit in view of his IUGR, prematurity and low blood sugars. It was difficult to gain control of his sugars and he required 12.5% dextrose to maintain his sugars. He is currently breast feeding and his blood sugars are stable. He will be followed in our neonatal [outpatient department] in six weeks time."

10. They also probably had at this stage in their possession a letter, which is at page 112 of the bundle. This is a letter from the hospital dated 19 January. It has written on it in manuscript a date 21 February 2007. It at times refers to the year 2006, but it is clearly a letter written in January and it means 2007, and what it records is that the baby had been seen at the neonatal clinic on 17 January to check his phosphate levels and in view of the results the recommendation was that he should stop medication at that time, but it requested the attendance of the baby at a clinic on 31 January 2006.
11. Mr Omar, in fact, refused the offer of accommodation at that time and we were shown this morning some notes which indicate what occurred at that time. It shows that on 20 February Mr Omar came and saw the council and said that he was not going to accept the offer of the property because of the baby having a hospital appointment at the Chelsea Hospital and he informed them indeed there was an appointment on 22 February. The council informed him that he had to bring an up-to-date letter from the hospital and the notes record Mr Omar coming in with a letter on 22 February, the letter stating that he attended the appointment on 21 February but said nothing further about the baby's medical condition, nor that the hospital was concerned about moving the child from the hotel to a self-contained flat. It shows Mr Omar being told that that letter would not be sufficient for the property to be withdrawn and the council offering Mr Omar a second appointment to view the property. The letter referred to in those notes appears to be one of 21 February 2007, which again we were shown this morning, which, as the notes indicate, simply recorded that the baby was seen at the outpatients clinic for a blood test on 21 February and gave a telephone number if any further information was required.
12. In the light of Mr Omar's refusal, the council then wrote to Mr Omar on 23 February and that letter was headed "Notice that our housing duty has come to an end". It recites the reasons why Mr Omar was refusing to accept the property, which included a reference to having a letter from the Chelsea & Westminster Hospital and informed him that they were not intending to offer him another home. It also informed him that if he disagreed with the decision then he had a right to take it to review and it further informed him that if he became homeless in the future then he could make a further application, but if they concluded that he was homeless intentionally they would not have an obligation to house him.
13. On 2 March 2007 Mr Keith Hall, who was the manager of the Bayswater  Family Centre, wrote a letter on behalf of the Omar family requesting a review and setting out in the letter the factors on which Mr Omar relied, which were: the prematurity of the child; the link that the family had with the local GP and health visiting services in Westminster; reliance that was being placed on Mr Omar's sister and the fact that if the Omar family were asked to reside at Brettenham Road E17, they would have to engage with a range of new medical practioners, new health visitors and paediatric services at a hospital and it says:

"It cannot be overestimated the worry and concern our clients have for the plight of their premature baby. They require the support of medical practioners and members of the family to help them through this. Taking away their support will seriously affect them.

We request you withdraw your offer of accommodation at 70 Brettenham Road, London E17 5BA and review your decision to discharge your accommodation duty."

14. So review was sought. In order to conduct that review, Mr Omar was asked to fill in a medical assessment form. He was asked for that on 15 March and that was returned ultimately to the council on 27 March, Mr Omar providing the reasons why he had refused accommodation, and in the body of that report, at page 104 in the bundle, he gave as the medical reasons for refusal/review.

"Premature born child with low blood sugar level & deficiency in other minerals. We have to attend every Wednesday at neonatal for blood tests. The mother is stressed and having back pain."

15. The council correctly summarised what Mr Omar's position was, at page 118 of the bundle:

"Clients feel accommodation is unsuitable due to distance from support networks and medical treatment for prematurely born son."

16. The decision was taken at that stage to send a letter to the hospital in order to obtain a medical update and that letter was sent on 16 April 2007, page 120 in the bundle, and that is headed:

"We are currently assessing the family's future housing needs. As they have informed us that Hamid is in your care we would appreciate any information relating to his health-diagnosis, prognosis, that would assist us in identifying suitable accommodation for the family."

They enclosed a medical assessment questionnaire. It will be noted that that was looking forward and not looking back.

17. There was some delay in getting the answer back and the delay was such that on 2 May the council had to seek from Mr Omar an extension of time for the carrying out of the review and time was extended to 23 May. Ultimately, on 4 May 2007, the hospital responded and one gets that at page 122 of the bundle. That report did not fill in any information as to how long they had been treating the patient or when they had last seen the baby, but it recorded a premature birth and then under "Prognosis" it said:

"Currently under developmental surveillance for early detection of problems. None detected so far."

Then, under a question, "Would your patient's health problems make him/her less able to fend for themselves?", "Currently not any less than any other baby." And so far as daily living is concerned the report said "Routine care for baby". And so it is signed by the doctor at the Chelsea & Westminster Hospital, as I say on 4 May.

18. The council, with that information, then completed their review and they sent that decision by a letter dated 18 May, which is at page 52 of the bundle. That letter indicated first that they were considering the review both of the decision as to suitability of the accommodation and of the council's decision that their duty to accommodate had been discharged. The letter then said:

"In conducting my review, I have considered all the information available to me at the time of review, including, but not limited to:

Your representations in your letter of 2 March;

Your clients' representations in their contact with the Housing Options Service on various dates…

…

[And then, importantly] The medical questionnaire completed by the neonatal department at Chelsea & Westminster Hospital on 4 May 2007

The advice of the Council's medical advisor."

19. It then set out the basis on which the Omar family were saying that the accommodation was unsuitable and that included the fact that the baby continues to attend regular appointments at Chelsea & Westminster Hospital to monitor his progress after having been born premature in December. The letter considered various other matters and then continues, at the bottom of page 53:

"I have considered the claim that your clients have been receiving support from their sister. Though the address of the sister has not been provided, I will presume she lives in Westminster. Westminster is only about 9.5 miles away from the accommodation offered to your clients. Although I do appreciate that it may be convenient and therefore desirable for your clients to live close to family in their current circumstances, there is no evidence to indicate your clients are unable to cope without family support. I have considered that your clients have each other to rely on for support so that they would be in a better position than many single parents. I have also considered that the neonatal clinic has stated that your clients' son requires only the routine care that would be necessary for any baby, and does not require any greater level of care. I am therefore not satisfied that the accommodation is unsuitable because of its location some 9.5 miles away from your clients' sister."

I pause there to emphasise that the second sentence from the end of that quote is clearly referring to the report from the neonatal clinic of 5 May, adopting indeed the very language of it.

20. It is unnecessary to read the next two paragraphs of the review letter, save to say that there is a use of the past tense in those paragraphs which is relied on by the counsel for the council, and in the last paragraph on that page the review letter continues:

"I have also considered your submission that your clients' son is under treatment at the Chelsea & Westminster Hospital. The hospital has verified that your clients' son is having regular check-ups for the detection of any problems following his premature birth over 5 months ago. The clinic does not mention that he is receiving any treatment and indicates that his care requirements are no greater than any other child of his age. They have told us there have been no health problems detected so far with your clients' son. I do appreciate your client's may have built a rapport with the medical professionals they currently see. However, having considered the information above, I do not agree that it would have been unreasonable for your client to transfer their medical care to medical professionals local to the accommodation offered at 70 Brettenham Road.

Having considered all of this information I do not believe that the offer of accommodation at 70 Brettenham Road is unsuitable because it would have caused detriment [to] your clients due to the isolation they would experience at the accommodation… I am therefore satisfied that the offer of accommodation was not unsuitable on the grounds you have submitted.

I have also decided to uphold the decision of 23 February 2007 that the council's duty to your client under s.193 of the Housing Act has ceased. This is because, although the council informed your clients of the possible consequence of refusal and their right to request a review of the suitability of the accommodation, they nevertheless refused an offer of accommodation, which I am satisfied was suitable for them."

21. There is in that review letter a mixture of the use of the present tense and the past tense and this has persuaded the judge that the use of the past tense indicated that the council were looking at the position as at the 23 February, as well as at May.
22. For my part, it seems to me that the mixture of language does not alter what is the true construction of that review letter, which, so far as the medical condition of the prematurely born son is concerned, seems to me to be: (1) we have information from the neo natal clinic which suggests only routine care required, and that was the answer to the questionnaire of 4 May; (2) That that requirement for the son provides no reason for rejecting the property as unsuitable; (3) Therefore the property offer was not of an unsuitable property; and (4) because you were warned as to the consequences of refusal, we uphold the decision that the duty has ceased.
23. The judge has held that the reviewer was entitled to take account of the position as at the review date, so as to the suitability of the property. But in relation to the decision that the council had discharged its duty; his view was it had to limit itself to facts as at the date of that decision. He then found that in relation to the decision that the duty had been discharged the reviewer was only concerned with facts as at the date of the original decision.
24. I find some difficulty in relation to what is in reality one decision, there being this distinction in relation to the dates at which facts should be looked at. Furthermore, I am also anxious about the judge's final conclusion. His final conclusion was that there would be no point in sending the matter back because the same decision would bound to be reached. In reaching that view, it seems to me he may have been of the view that, as regards suitability, the council could continue to test the matter by reference to the condition of the son at the date of review.
25. Before turning to the authorities, I have asked myself what I would think should be the proper approach so that I can then see whether the authorities point in the same or a different direction. It seems to me that the question of what facts may be taken into account on the review will depend on what is being reviewed and must, unless there is some compelling legislative provision which dictates to the contrary, be dictated by what fairness requires. Common sense may often dictate the taking into account of facts as at the date of review. So, for example, if accommodation is still available, because the homeless person has taken up the offer and in that context asked for a review, it makes sense to look at the matter as at the date of review when the accommodation is still available. But if accommodation has been offered and rejected and the council has taken the decision that it has fulfilled its duty and so no longer makes available that property or any property, it does not seem fair on either the homeless person or the council to look at the matter at the date of review. The question in such cases, it seems to me, ought to be whether the council was correct in taking the view that it had offered suitable property; and that can only be fairly tested by reference to the circumstances as they existed as at the date of that decision.
26. It is common ground that, whatever the correct date for testing the position, it is the suitability to the particular homeless person or homeless person's family, which has to be assessed. It is also common ground that suitability is a flexible concept and, though we are not concerned with a perfect home, we are concerned with something with which a reasonable council could find as suitable in the context of the problems of supply and the number of people applying and of the particular attributes of the applicant for a home.
27. In relation to date, and the date on which a reviewer should focus, the starting point for the submissions of both sides has been the House of Lords decision in Mohamed v Hammersmith and Fulham LBC [2002] 1 AC 547. Undoubtedly that was a case in which the House of Lords said that the facts at the time of the review were the facts that should be taken into account, but it is important to see what the case was about. It was concerned with a decision relating to the connection that a person might have with a particular authority and as to whether someone had a normal residence in one district or another. The House of Lords upheld the Court of Appeal's view that all facts up to the date of the review should be taken into account, including a period of residence after the original decision. There is obvious logic in that because, as it seems to me, the decision-making process is there continuing right up to the end of the review.
28. It is then convenient to go to Sahardid v Camden London Borough Council [2005] HLR, page 11. This was a decision which was cited to the judge. This was a case in which at the date of the original decision a child was under 5 years of age, that being an important factor in the decision-making process. By the time that the review took place, it was 3 days after the fifth birthday. The Court of Appeal held that the reviewer had misdirected himself by not applying post 5-year-old criteria. Now, once again, as it would seem to me, the court is taking the view that the decision-making process was continuing right to the end of the review. It was not important to analyse the position as if there was some final decision which the reviewer was then looking at.
29. On the other hand there is Osseily v Westminster City Council [2007] EWCA Civ 1108; this is a decision which was handed down after the judgment in this case and was thus not available to the judge. This case demonstrates that if one took the practice of looking at the facts of the date of review to the extreme, one could reach absurd results. In that case what had happened was that the council had offered accommodation in accordance with its duty. The accommodation had been refused and the council had then, in the same way as in this case, had told the applicant that it had discharged its duty; and as in this case, the council in that case let the property go to some other applicant and thus at the date of the review the property offered was not available. So the applicant in that case ran the argument that since the property is no longer available at the date of review, that shows there is no suitable property available and therefore the council have not discharged their obligations. Laws LJ, giving the judgment, with which Gage LJ and Rimer LJ agreed, rejected the applicant's case. He did so, first of all saying, and recognising at paragraph 8 the cases which established that in most instances one looked at the date of review as the date at which the facts had to be assessed. Though it is interesting that in that paragraph, having cited Mohamed, he cited other cases, saying: "It is no less clear that this approach is to be applied in suitability cases," and referred to Sahardid and another case called Calgin v Enfield LBC [2005] EWHC 1716 (Admin).
30. What he then said at paragraph 9 was that HHJ Collins had in fact not departed from that position, and he quoted a sentence from HHJ Collins's judgment, indicating that HHJ Collins had examined at the date of review facts that did exist at the date of the original decision. What Laws LJ then said at paragraph 11 is this:

"The question on the review in this case was whether on the facts the Respondent's housing duty had indeed come to an end within the meaning of s 193(5), as the Respondent council asserted. Now, s 193(5) plainly contemplates that where an Applicant refuses what the council regards as suitable accommodation, the council's duty ends then and there. There is no conceivable warrant for a construction of the subsection that would effectively postpone that event until the outcome of a statutory s 202 review. But the Appellant's argument implies such a construction. Indeed, it implies a yet more surprising consequence: namely that where an Applicant refuses accommodation offered to him as suitable, the local housing authority are obliged to keep that accommodation available for him pending his s 202 review."

In the final paragraph of the judgment Laws LJ said at paragraph 13:

"In my judgment, the Appellant's references to Mohamed and other learning that followed it are, with respect to Miss Bretherton, in truth, a smokescreen. The contention here is really for a substantive duty on the part of the local authority to keep available accommodation after an Applicant has refused it, at least until the 21 days within which a review must be sought have expired, and where a review is sought until it is determined. If Parliament had intended to impose such a duty it would have done so in the plainest terms. In my judgment the Respondent is right to submit that … where the authority has already decided that the accommodation offered was suitable, and that the duty owed under s 193 has therefore already been discharged, the question the reviewer must address is whether, on the facts as they are known to be at the date of the review, the accommodation previously offered would now be considered suitable. If it would, the decision to discharge the duty would be upheld. If it would not, the decision to discharge cannot stand, and the authority will remain under a continuing obligation to provide the Applicant with suitable accommodation."

Some debate took place before us as to what Laws LJ meant by the phrase: "…on the facts as they are known to be at the date of review". But, having regard to what he said at paragraph 11 and on his upholding of HHJ Collins, the way he approached the decision, and indeed in the light of what he was having to decide in the case itself, it seems to me clear that what he was saying in that sentence is that the reviewer is entitled to have regard to facts discovered since the original decision , but they must have been facts that would have existed and did exist at the time of the original decision. So, once again, it seems to me there is support for there being a different position where what has been reviewed is a decision which has actually been taken, and finally taken, and a decision where there is in effect a continuation of the decision-making process right through the review.

31. Finally, I should refer to a case called Robinson v Hammersmith & Fulham LBC [2006] 1 WLR 3295. That is a case where I happened to give the lead judgment. That was a case where the original decision was an unlawful decision, in that the council postponed the taking of the decision until after the applicant had reached her 18^th birthday; again, in that case, 18 being a highly material date. It only required a postponement of a few days. So that enabled the council in that case to argue that, so far as the review was concerned, since by that stage the girl was well over 18, and since the correct date -- so it was argued -- for assessing the fact was at the date of review, the decision should be upheld. We, in that case, held it could not be right simply to look at the date of review. What the reviewer should have been looking at was the lawfulness or otherwise of the original decision.
32. So in my view the authorities do not preclude this court from holding that where the council has taken the view that it has offered suitable property and where it has completed the decision-making process by deciding, as from a certain day, that its duty had ceased, the correct question for the reviewer is whether the council were right, as at the date of that original decision; and for that purpose what they should be examining is the facts that existed as of that date, albeit they may discover what facts existed as at that date, between the date of that original decision and the date of review.
33. The judge in this case suggested that the decision should be upheld on the basis that the council had in fact asked themselves the right question in their review of the decision. He analysed the language of the review letter and suggested that there were in fact two decisions, one of which related to suitability as at the May date, and the other of which related to the decision that their duty had been discharged, which, he said, had been taken by reference to factors as at that date.
34. I am afraid I cannot agree with that analysis of the review decision. I have already said in an earlier part of this judgment what, in my view, a natural construction of that review letter leads to. The materials taken into account by the reviewer of the decision that the council had discharged their duty included the hospital's answer to the questionnaire at 5 May, and it was really that answer which was one of the main bases on which the reviewer reached the decision that the property was suitable and was thus one of the main bases on which the reviewer reached the decision that the council had discharged their duty. What the reviewer needed to do was to look at the position as at 23 February. Of course, as I have already emphasised, he could seek to discover what facts there were as at 23 February and he is not bound to look simply at what the council knew at that date. But the review letter simply does not do that and thus it seems to me that the review letter is defective in that way.
35. However, Miss Allsop has a further weapon in her armoury, because she submits that even if the reviewer was not looking at the right facts in relation to the discharge of the duty, she submits that the appeal should be dismissed, relying on the decision in Ali v Newham [2002] HLR 413. She refers in fact to one paragraph (paragraph 13) of the judgment in Ali v Newham which refers itself to the principle in Barty-King v Ministry of Defence [1979] 2 All ER 80. It is unnecessary to quote the whole paragraph, it simply demonstrates that if there is a procedural irregularity found, the court may not set aside the decision if the decision would "…inevitably have been the same if the matter had been dealt with properly."
36. What Miss Allsop submits is that the decision in this case would inevitably have been the same. She goes back to the information which was available to the decision-maker in February 2007, that is to say the discharge summary, the letter of 19 January and the letter of 21 February. She says that they simply provide no evidence that the condition of the baby was such as to demonstrate that such treatment as was necessary could not have been obtained locally in Walthamstow, or indeed that the 9.5 miles from Walthamstow to the Chelsea & Westminster Hospital was such a distance as to render the property that was being offered in Walthamstow unsuitable.
37. There is obviously some force in those submissions, but from the papers we have, it does not appear to have been in issue that in February the mother was taking this premature baby to the Chelsea & Westminster Hospital on a weekly basis; and it does not appear to have in issue that the family would be relying on that hospital as one with which they had built up a rapport, and relying on the local support. Thus when one poses the question whether if the reviewer had been concentrating on the position as at 23 February, would he or she inevitably have said in relation to what is described as stage 2 temporary accommodation, have taken the view that this property, 9.5 miles away from the hospital and away from local support, was suitable? I find it impossible to say that that would have been an inevitable conclusion.
38. So I would allow the appeal. I would direct a further review, and I would make cleat that the review should concentrate on the position as at 23 February as it is now known to be, and, or indeed, as such further enquiries of the hospital will show that it was. And for those reasons I would allow the appeal.

Lord Justice Tuckey:

39. I agree.

Lord Justice Sedley:

40. I also agree.

Order: Appeal allowed