England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BIRMINGHAM COUNTY COURT
(MR RECORDER TIDBURY)

		Royal Courts of Justice Strand, London, WC2A 2LL
		14th October 2009

Sir Anthony May:

1. Part 7 of the Housing Act 1996 concerns homelessness. As is very well known, Section 193 imposes a duty on a local housing authority to secure that accommodation is available for an applicant for assistance in obtaining accommodation where the local housing authority is satisfied that the applicant is homeless, eligible for assistance and has a priority need and that they are not satisfied that he became homeless intentionally.
2. The appellant before this court, Mr Abdulahi Mohammed Ali, was accepted by Birmingham City Council to be such a person in the early spring of 2008. Being under that duty, the Birmingham housing authority were under the statute subject to that duty until it ceased by virtue of any of the following provisions of Section 193. The two such provisions which are relevant to this appeal are, first, Section 193(5), which provides:

"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 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."

That is a more general subsection than subsection (7) which provides:

"The local housing authority shall also cease to be subject to the duty under this section if the applicant, having been informed of the possible consequence of refusal and of his right to request a review of the suitability of the accommodation, refuses a final offer of accommodation under Part 6."

It will be seen that the statutory operation of each of these subsections depends on the housing authority informing the applicant of the possible consequences of a refusal and of his right to request a review of the suitability of the accommodation.

3. Section 202 of the 1996 Act entitles an applicant to request a review of, among other things, any decision of the local housing authority as to what duty is owed to him under Section 193, which I apprehend would include a decision under that section that they had discharged their duty and any decision of the local housing authority as to the suitability of offered accommodation.
4. Section 202(1A) provides by amendment that:

"An applicant who is offered accommodation as mentioned in section 193(5) or (7) may under subsection (1)(f) request a review of the suitability of the accommodation offered to him whether or not he has accepted the offer."

5. In the present case the local housing authority made Mr Ali an offer of accommodation by letter dated 28 April 2008 which contained in clear English all the information which the statute or authority required it to contain. He had previously been informed in writing more than once that a homeless applicant would be entitled to one offer only of suitable accommodation and that this would be Mr Ali's one and final offer -- see the letter of 25 February 2008. The offer letter itself stated this again in emphasised terms under the heading:

"What happens if you turn the offer down?"

The letter stated that the council would not offer him any more accommodation and would have discharged its duty. It stated clearly that Mr Ali could ask for a review if he did not agree that the accommodation was suitable. It further stated that he had the right to request a review whether he decided to accept or refuse the offer of accommodation.

6. The letter said that an appointment had been arranged to view the property offered on 30 April 2008. That was two days after the date of the letter and on Mr Ali's evidence probably one day after it arrived. Mr Ali attended the appointment, viewed the property and is said to have turned it down orally as being in his view unsuitable. It is accepted, correctly in my view by Mr Nabi who appears in this court on his behalf, that a refusal in this context must be unequivocal. Whether whatever he said amounted to a refusal of the offer within the meaning of the Act would depend on exactly what he said, as to which the evidence was insecure, but it has been pointed out to us that in paragraph 16 of his witness statement in the proceedings that are now before the court he stated that he expressed as best he could "my dissatisfaction with the offer".
7. On 30 April 2008 later that same day Mr Ali submitted a request for review on a standard form which expressly refused the offer. The request for review was limited to asking for review of the decision as to the suitability of the accommodation, although the form provided a tick box opportunity for him to say that he had accepted the offer of accommodation but did not consider the offer to be suitable. He had obviously been helped in formulating this request for a review and in completing the form, and we are told that there was a Somali welfare organisation to whom he obviously went.
8. On 1 May 2008 the local housing local authority wrote to the effect that they regarded themselves as having discharged their duty to him and that accordingly, for the purpose of Section 193(5) at least, their duty ceased then. That of course depended subject to the review on the local authority's view that the offered property was suitable. The local housing authority proceeded to conduct the requested review of suitability of the accommodation offered. In a long seven page letter dated 30 May 2008 a homeless review officer gave extended reasons for determining that the accommodation was indeed suitable. That decision is not challenged in these proceedings.
9. Section 204 of the 1996 Act enables an applicant dissatisfied with the review decision to appeal to the County Court on any point of law arising from the decision. Since in the present case the decision itself is not challenged, and since it determined the only point upon which Mr Ali requested a review, it is a little difficult at first blush to see what point of law arises from the review decision or indeed from the original decision.
10. The single point of the appeal in this case to the County Court was decided in the Birmingham County Court by Mr Recorder Tidbury on 19 December 2008 against Mr Ali and from which decision he appeals to this court by permission of Jacob LJ. It is whether in the circumstances of the case Mr Ali had been informed within the terms of Section 193(5) when his understanding of English was very limited and the letter informing him was written in English without a translation into his language, Somali.
11. Certain additional facts should also be summarised. They are as follows. The appellant, Mr Ali, is a Somali speaking former asylum seeker who arrived in the United Kingdom from Ethiopia in January 2003 and was subsequently granted leave to remain. He had accordingly been in the United Kingdom for upwards of five years in 2008 and it would be slightly surprising if he then understood no English. The respondent's review document, however, accepted that he did not. In February 2008 his family arrived from Ethiopia to be reunited with him. By this time he was living in a one-bedroomed, privately rented flat. He approached the local authority on 12 February 2008 and was accommodated together with his family, as was the local authority's duty under the statute, in temporary accommodation pending a decision on his homelessness application.
12. His homeless application form dated 21 February 2008 is a 13-page tick box type document with numerous questions asked in English and answered in English above Mr Ali's signature. He obviously had help with this. It was recorded that the question asking whether he required a translator was answered no. The form stated that a homeless leaflet had been provided to him. This appears to have been either a leaflet headed Homeless Service Standards in which the council stated that they would provide advice and information in the language that the person required and would make written documents easy to read and translate them into other languages where appropriate; or, as the Recorder thought in paragraph 15 of his judgment, a booklet entitled Homelessness and Home Options, on the last page of which, in English and translated into ten languages including Somali, was an explicit invitation if the recipient did not understand it to ask for the help of an interpreter to be provided by the council. The homelessness application form also recorded a statement that the form had been read back to the appellant, that he agreed with it and that he understood it and that he spoke English. The application form was another document which stated immediately above the appellant's signature that the council would make one suitable offer of accommodation and that the applicant had a right to request a review of the homeless decision.
13. On 10 April 2008 the local housing authority conducted a conversation with Mr Ali via their language line translation service. A record of the conversation notes that Mr Ali was advised of the one offer only policy. The record notes that Mr Ali had responded "that's okay", but had asked for Somali translators to be used for any further telephone calls. Mr Nabi points out that the problem which has arisen in this case, namely that it is said that the appellant did not understand that it was open to him to accept the offer of accommodation and at the same time ask for a review of its suitability, was something which could have been, but was not, told him on that occasion on 10 April 2008.
14. It is also to be observed that the appellant at least sufficiently understood the offer letter to know when the view of the property was to take place and where to go.
15. The amended Section 1(1A) of the Race Relations Act 1976 provides that when a practice which on the face of it has nothing to do with race or ethnic relations and is applied equally to everyone nevertheless puts people of a certain race or ethnic or national origin at a particular disadvantage when compared with others and cannot be shown to be a proportionate means of achieving a legitimate aim, that may constitute discrimination. Section 71 of that Act obliges the local authority among others to have due regard to the need to promote equality of opportunity and good relations between persons of different groups.
16. Discrimination on grounds of race or ethnic or national origin was raised, if I may say so, without much forensic enthusiasm for the first time on appeal to the County Court. The Recorder did not uphold this contention, and Jacob LJ in giving permission to appeal to this court on the main issue wrote that it seemed that arguments based on alleged discrimination added nothing to those under the 1996 Act.
17. The statutory Code of Practice on Racial Equality in Housing has passages, in particular at paragraph 3.92, to the effect that information about an organisation's homelessness service should be easily accessible to ethnic minority applicants with translation available on request in languages other than English. A December 2007 Guidance for Local Authorities on Translation of Publications issued by the Department of Communities and Local Government points the questions whether it is essential that material is translated and whether there is a need to translate a document in full. The Guidance contains in paragraph 18(a) the emphatic statement that there is no legal reason for all materials to be translated. In Wales a Code of Guidance for Housing Authorities provides that they should ensure that there is free access to interpreters for people for whom English is not their first language, and in the context obviously mainly refers to those whose first language is Welsh.
18. A statutory Homelessness Code of Guidance for Local Authorities has numerous passages to which we have been referred about the need to ensure that procedures and decisions are understood, and it is perhaps sufficient to refer in that document to paragraph 6.23 where it is stated:

"It will be important to ensure that the applicant fully understands the decision and the nature of any housing duty that is owed. In cases where the applicant may have difficulty understanding the implications of the decision, it is recommended that housing authorities consider arranging for a member of staff to provide and explain the notification in person."

What in my view these and other references amount to is that the local housing authority should provide reasonable help and guidance to homeless applicants (see also in this context Sections 179, 190 and 192 of the 1996 Act) and should sufficiently offer translation services or other help in understanding to those who need and request them. This does not, in my view, so far as the codes and guidance are concerned, extend to a disproportionate and wasteful requirement to provide translations which have not been requested in every case where understanding or language might conceivably be a problem.

19. Mr Ali exercised his right to appeal the statutory review to the County Court by an application dated 20 June 2008. In summary, the grounds of his appeal were as follows: first, that the local authority erred in law in that it failed to explain to Mr Ali that he could both accept the offer and request a review as to its suitability; second, that the authority knew that Mr Ali possessed almost no English but failed to provide any translation of the procedure following the making of the offer; thirdly, that the failure to ensure or take reasonable steps to ensure that he was aware of and understood the procedure caused material unfairness and breached Mr Ali's rights under Article 6 of the European Convention on Human Rights. The reference to Article 6 of the European Convention was misconceived since Article 6.3, the only part of the Article which concerns language, is confined to a person charged with a criminal offence, which Mr Ali was not.
20. Objection is taken by Mr Manning, on behalf of the local housing authority in this court, to the appellant advancing before the County Court and in appeal to this court facts and matters which were not raised in the review, and in certain instances to facts asserted by counsel which it is said the evidence did not substantiate. It is said, for instance, that an allegation raised for the first time on appeal of racial discrimination raises wide issues which the council had been unable properly to address because the review decision did not address those questions and because no proper facts were laid for consideration of them on the appeal.
21. Reference is made in this context to the judgment of Brooke LJ in Cramp v Hastings Borough Council [2005] EWCA Civ 1005, where Brooke LJ said that given the full scale nature of the review under Section 202 of the 1996 Act, a court whose powers are limited to considering points of law should now be even more hesitant that the High Court formally was if the appellant's grounds of appeal relate to matters which the reviewing officer was never asked to consider and which was not an obvious matter which he should have considered. That would apply to the factual parts at least of the contention, never raised on the review, that the appellant did not understand that he could accept the offer of accommodation and at the same time seek a suitability review, and to particular factual questions relating to his understanding generally and the need for the local housing authority to provide translations.
22. On the other hand Section 204 enables an applicant dissatisfied with the decision on review to appeal on a point of law which might appear to give some latitude to advance points of law not raised on the review, and it is now common place that on an appeal the main question is not whether the review decision was right but whether the original decision was right or at least one which the decider was entitled to reach; see Neuberger LJ in Danesh v Kensington and Chelsea RLBC [2006] EWCA Civ 1404 at paragraph 30. In the present case the Recorder on the appeal to the County Court was persuaded to address the grounds of appeal raised even though they arose entirely from matters not raised on the review.
23. The more important point, perhaps, is that appeals to the County Court and to this court are limited to points of law and although there are authorities, for example Runa Begum v Tower Hamlets LBC [2003] UKHL 5 [2003] 2 AC 430 which provide fairly expansively what is a point of law, as for instance if a finding of fact is perverse, the court cannot substitute its own findings of fact for those of the decision-making authority if there was proper evidence to support them. The same applies in this court to decisions of fact which the judge in the County Court may have been persuaded to make. I have some sympathy in this respect with Mr Manning's submission to the effect that the Recorder had no evidential basis for a finding derived to a large extent from the fact that the appeal depended entirely on matters which were never raised on the review.
24. What this amounts to in my judgment is that the appellant has to show that the local housing authority were obliged as a matter of law, knowing that the appellant's English was poor, to provide him with a translation into Somali of the offer letter and presumably other important documents as well when he had not asked for such a translation or interpretation services which were available and which he knew about.
25. The Recorder's judgment in summary was as follows. He found that Mr Ali had rejected the offer of accommodation by the submission of his review form and not by what he had said orally in the course of his visit to the property earlier on 30 April 2008. The Recorder found that there was a duty to inform Mr Ali of the possible consequences of refusal and of his right to request a review of the suitability of the accommodation. He held that 'inform' carries its usual meaning and is used interchangeably in the Act with the word 'notify'. If 'inform' did require more than 'notify', then the letter of offer in English would sufficiently 'inform' someone capable of reading and understanding English. He found that Mr Ali most likely received the offer letter the day before the viewing, notwithstanding submissions to the effect that he had received the letter on the morning of the proposed appointment, and would therefore have had time to arrange for assistance with his understanding of the letter and that he did in fact do so, at least by the time he had completed with assistance the review form. He found that the duty to inform Mr Ali of his rights was satisfied by the local housing authority setting out in English what they were required by the statute to set out. The housing authority must and did offer translation if it was required and requested. He held correctly that Mr Ali's rights under the European Convention were not breached and he held that the conduct of the local authority did not amount to discrimination under the Race Relations Act.
26. The grounds of appeal to this court, to be found in the appellant's notice, are in summary as follows. It is said that in holding Mr Ali had not refused the offer of accommodation at the time of viewing the property, despite his express oral statement to that effect to the housing officer, the judge was wrong, there being no admissible material before the judge to support such a finding. The second ground is that in finding that the local authority had offered translation of the letter of offer, the judge was wrong, there being no material before the court upon which such conclusion could be founded. The third ground of appeal is that the judge was wrong in his conclusion that Mr Ali had been informed of his right to accept the offer of accommodation and at the same time request a review of its suitability. The fourth ground is that he was wrong in concluding that Mr Ali had been afforded sufficient opportunity to obtain a translation of the letter of offer. And the fifth ground in this summary is that the judge was wrong in finding that Mr Ali was not discriminated against by reason of his inability to understand his statutory rights as set out in the offer letter.
27. The first, second and fourth of these grounds as I have expressed them are in the nature of points of fact. The third is a point of law as to the construction of the statute. As to the fifth, as will appear, I agree with Jacob LJ that the discrimination point is not persuasive and adds little or nothing to the main point under the 1996 Act.
28. The submissions of Mr Nabi are as follows. Firstly, as to the meaning and import of the word 'inform' in Section 193 of the 1996 Act, with reference also to use of the word 'notify', it is submitted that 'inform' carries a greater or wider meaning than 'notify'. 'Inform', it is said, means letting a person know of the position so that he can make a decision in the full knowledge of the relevant facts including the implications and future consequences of an action, for example, to give informed consent; whereas the requirement to 'notify' is merely satisfied by giving notice. This is the main and, I think, only clear point of law and I will return to it in a moment.
29. It is submitted that the judge further held that even if the duty to inform required more of the authority than the duty to notify, then that duty was satisfied by the respondent setting out what they are required by statute to set out in English. They must and did offer translation if that is required and requested, and they cannot be expected to translate in every case. It is submitted that those findings were wrong.
30. As to the question of when and by what means the offer of accommodation was refused, it is submitted that the judge, in finding that the actual refusal of the offer took place when the appellant submitted his request for review, was wrong. This is an important point, it is submitted, because at that time the appellant had had the opportunity to obtain a translation or explanation of the offer letter and had certainly by that stage obtained some help from others in completing the request for the review.
31. It is submitted that the judge was wrong to conclude that the offer of accommodation was refused by the submission of the request for review. There was, it is said, no admissible material before the judge to support that finding. The appellant plainly refused the offer of accommodation at the viewing in ignorance of his right to accept the offer and request for review as to suitability. It is submitted that there was no material to suggest that either the appellant or the welfare organisation were acting under the assumption that the offer of accommodation could still be accepted after having been refused or that the welfare organisation was acting in an advisory capacity as opposed to helping the appellant fill in the form or that they informed him of his statutory rights by offering to translate the offer letter. Moreover, it is said that there was no material adduced by the authority to argue that in this case the offer of accommodation was still open at the time of the review request and that the appellant or the welfare organisation was aware of that fact.
32. In my view this is a somewhat formalistic point based in part on a misunderstanding of the full import of Section 193 of the 1996 Act. It cannot in my view be right, and the local housing authority do not contend in these proceedings, that an initial on the spot oral refusal, in whatever precise terms it may have been expressed, to accept offered accommodation as suitable irrevocably brings the shutters down forever on that offer. It is plainly open to an applicant who has second thoughts and who wishes to accept an offer which he at first turned down to go back to the local housing authority saying that he accepts the offer. The offer in practice remains open for a short time and a local housing authority which took an equally formalistic stance to the contrary would, depending of course on all the circumstances, probably be acting unreasonably. This is constant with the fact that under Section 193(5) the local housing authority's duty does not cease upon the applicant's refusal of suitable accommodation but on the necessarily subsequent notification by the authority that they regard themselves as having discharged their duty under the section. This in the present case occurred with the local authority's later letter of 1 May 2008.
33. As to the ground of appeal that the judge was wrong in holding that the authority offered translation of the offer letter, it is pointed out that during the hearing the judge was handed examples of housing documents which, although written in English, had attached to them a sheet of paper translated into ten languages including Somali and containing the words:

"This letter is important. If you do not understand it then please ask an English speaking friend or relative to contact your local neighbourhood office or housing team on your behalf. We will then arrange to meet with you and provide an interpreter."

The offer letter, it is said, contains no such offer to translate or any warning that it contained important information about the appellant's statutory rights.

34. As to this the Recorder found at paragraph 15 of his judgment that the applicant had been handed a booklet or leaflet which contained an offer to provide an interpreter translated into ten languages including Somali. On any view the appellant in this case signed an application form which stated that a homeless leaflet had been provided to him which, again, on any view, referred to the availability of translation or interpretation services. This finding was in my view open to the Recorder on the material before him, and I find no error of law in making such a finding of fact.
35. As a matter of general fairness, the appellant acknowledged in his application form that he did not then need an interpreter and had conducted at least one telephone call through the local authority's language line. He was able, no doubt with help but quite quickly, to complete in English an entirely intelligible review form containing in English extended reasons why he then said the offer of accommodation was unsuitable.
36. The main point of law on the construction of the statute is a short one and I shall address it reasonably briefly.
37. The terms of Section 193(5) of the 1996 Act are it will be recalled as follows:

"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 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."

This subsection contains, but not in conjunction, both the words 'inform' and 'notify'. A similar requirement to 'inform' appears in Section 193(7) which does not, so far as it goes, also contain the word 'notify'.

38. The submission on this appeal points to a contrast between the use in the statute of the verb 'inform' and the use of the verb 'notify': for example (but there are others) in Section 184(3)-(6) of the 1996 Act, where the authority, once it has completed its statutory enquiries, has to notify the applicant of their homeless decision and, so far as any issue is decided against his interest, inform him of the reasons for their decision; that is Section 184(3). There are equivalent references later in Section 184 and two references to a notice which plainly refers back to the requirement to notify. The submission is that informing someone in this statutory context requires more than notifying him and must be taken to extend to providing a translation of the contents of the notice if to do so is or may be necessary to bring home to his understanding the importance and meaning of the content of the notice.
39. The Recorder held that 'inform' and 'notify' were interchangeable and meant the same thing, so that 'inform' imports no greater intensity of information providing. I agree, with one qualification immaterial to this appeal. The qualification is that it is clear in my view that 'notify' requires the giving of a notice which imports a degree of formality sufficient to constitute the document, as it will usually be, a notice. 'Inform', in Section 184 at least, applies to the content of the notice. 'Inform' is an ordinary word which does not require paraphrase into different words, and certain it is that, subject to points about translation, the letter of 28 April 2008 properly informed the appellant of all that statute or fairness required. 'Inform' in this statute is in my judgment to be construed as requiring information to be conveyed in understandable English, and the question whether the statutory obligation to inform has been performed is not to be judged by the varying extent to which the recipient of the document may have understood the information conveyed. This conclusion is fortified by the frequent juxtaposition in this statute of the words 'notify' and 'inform'. 'Notify', as I have indicated, imports the requirement for a notice and the is question whether the notice contains the required information.
40. This does not mean that the appellant cannot advance general arguments as to why the document should have been translated or why he should have been assisted in understanding it, but he gets no support from the use of the word 'inform' in the statute for such arguments.
41. It accordingly remains to be considered whether the Recorder is to be regarded as having been in error in reaching the conclusion that the appellant was given sufficient help or should have been given more help than he was in understanding the document that was put to him. Important in this decision is the fact, first, that at no stage did he ask for assistance in understanding the notice that had been given to him, the notice containing the offer, and, second, the fact that on a number of previous occasions he had both used and been told of the possibility of his use of translation services. In my judgment in those circumstances there was nothing which required the Recorder to reach the conclusion that the local housing authority had acted unfairly in this case.
42. As to discrimination, it is submitted that the Recorder was wrong in finding that the appellant was not discriminated against by reason of his inability to understand his statutory right to accept the offer of accommodation and request a review as to suitability as set out in the offer letter. It is submitted that the authority's practice of sending an offer letter in English, without even a warning in any other language that the offer letter contains important information about statutory rights, led to the appellant failing to understand and to be informed of the fact that he could accept the offer and request a review as to suitability. The authority engaged in this practice even though their review decision acknowledged that the appellant was unable to speak English. It is submitted that in the circumstances, if the judge had directed himself correctly in law, he would have been bound to find that the practice of the authority put the appellant by virtue of being a Somali and Somali speaker at a disadvantage when compared with others who were English or English speakers. The practice of not warning an applicant that the offer letter contained important information about statutory rights which would be fully understood but merely provided it in English could not amount, it is submitted, to a proportionate means of achieving a legitimate aim.,
43. The Recorder in his judgment dealt with this point shortly as follows. He said in paragraph 45 of his judgment:

"I have likewise considered the question of the Race Relations Act. That point was not fully argued but I prefer the submissions of Ms Rowlands to those of Mr Nabi on that point. The conduct of the local authority was not in my judgment discriminatory simply because it did not offer translation immediately of all letters sent out. Facilities were available to assist if requested. I have to look at the cost of translating every letter of offer into a foreign language when often that will not have been necessary. It is not a necessary or proper use of scarce resources. It must be better to focus resources on cases where assistance is requested. It is not racial discrimination to focus resources in that way."

44. Mr Manning submits in writing that the appellant's submission is brief and ill-formulated. I have already indicated that he objects to the matter being raised at all on appeal when it did not feature in the review. He says that the ground of appeal is based on pure assertion without any evidence to support it. On the face of it the local housing authority treats all homeless applicants equally whatever their race, ethnic or national origin, and there is no proper basis for saying that applicants of Somali origin are at a particular disadvantage when compared with others.
45. Given that translations or interpretation are offered and available to those who ask, there is no reason why a person whose English is poor is at a disadvantage in comparison with, say, a person of whatever race, ethnic or national origin whose first language is English but his capacity to read and understand documents written in English is less than perfect.
46. I find these submissions persuasive and I am not persuaded that the Recorder made an error of law in his decision on the discrimination point.
47. For these reasons, in my judgment this appeal fails and I would dismiss it.

Lord Justice Wall:

48. I agree

Lord Justice Moore-Bick:

49. I also agree

Order: Appeal dismissed