England and Wales Court of Appeal (Civil Division) Decisions

IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
HHJ LEVY QC (sitting as a Deputy Circuit Judge)
HAA90100

		Royal Courts of Justice Strand, London, WC2A 2LL
		24/11/2010

Lord Justice Mummery :

The issue

1. This second appeal arises from the way in which the respondent Westminster City Council (the Council) allegedly dealt with an application to it by the appellant Mrs Hanton-Rhouila (Mrs Rhouila) under Part 7 of the Housing Act 1996 (the 1996 Act) for accommodation as a homeless person. The appeal, for which the Master of the Rolls granted permission on 18 March 2010, is from the Council's review decision dated 28 August 2009 that Mrs Rhouila was not homeless within the meaning of the 1996 Act. Her first appeal from that decision was dismissed by HHJ Levy QC on 5 November 2009. He agreed that Mrs Rhouila was not homeless and concluded that the dismissal of her request for a review was lawful.

Background facts and proceedings

2. Mrs Rhouila, who is 44, has suffered since 2004 from cancer and kidney failure, accompanied by severe depression. From 2007 she and her husband lived in Notting Hill with her sister-in-law Fatima, who, when there were disagreements between them in 2009, asked them to leave her house by the end of April. On 23 March 2009 Mrs Rhouila applied to the Council for housing assistance under Part 7 of the 1996 Act. The Council referred her to the "Private Sector Housing Initiatives Team" and placed her on the Home Finders Payment Scheme (HFS), a discretionary scheme for helping people to find suitable private accommodation at a reasonable rent level and for a minimum duration of a 12 months tenancy: see Council letter dated 24 April 2009.
3. Mrs Rhouila was interviewed by her caseworker (Mr David Thomas) on 28 April 2009. Pending the Council's inquiries into her application she was promptly placed in temporary accommodation at the Leinster House Hotel at Lancaster Gate, which proved not to be suitable. She continued to view private properties and secured accommodation at 4 Pine House, 9 Droop Street, London W10 (the property). On 6 May she signed an agreement for an assured shorthold tenancy of the property for 12 months. On the same day the Council, without completing its enquiries under s184, rejected her homelessness application on the grounds that she was not homeless under Part 7. It informed her that the Council was therefore under no duty to find her a home and that it could not offer her somewhere to live. She had accommodation available for her occupation, namely the property which she had secured through the private sector scheme. As an incentive to offer a tenancy of the property to Mrs Rhouila the Council had paid the landlord £1,900.
4. Mrs Rhouila's case is that the Council's decision was unlawful and flawed procedurally. Although the Council could assist her outside Part 7 of the 1996 Act, it could not require her to accept an alternative form of assistance and it was obliged to inform her of the consequences of accepting private accommodation and to provide her with proper advice about what she was giving up in consequence. The Council had in effect deprived her of the benefit of the full housing duty under Part 7 and of the priority under the Council's allocation scheme that she would have had and would need to secure any long term accommodation under Part 6. She was not given any proper information on the loss of those rights and could not therefore make an informed decision. The review officer was not entitled to conclude that the Council had discharged its obligations to her and that she was not homeless.
5. Mrs Rhouila still lives in the property. She does not suggest that it is unsuitable. Her complaint is that the Council did not proceed with her Part 7 application. Instead the Council terminated her application in its decision under s184 of the 1996 Act that she was not homeless within s175, as she had accommodation available which it was reasonable for her to occupy.
6. Her solicitor's request on 6 August 2009 for a review of the Council's decision was dismissed on 28 August. The Housing Review Officer (Aisha Ahmed) concluded that Mrs Rhouila was not homeless for the reasons stated in the decision letter sent to her solicitors. The letter dealt with specific complaints made by her solicitors:-

"You have also advised that your client was informed by Mr Thomas that she would not be removed from the homeless persons' waiting list, as the property was temporary accommodation. You have advised that your client was not properly advised of the consequences of accepting accommodation at 4 Pine House. You have also stated that your client felt that she [was] misled, and coerced into accepting the property. This was further reiterated by your client during a telephone interview on 17 August 2009.

I can confirm that I have liaised with Mr Thomas, who has stated that your client was advised that by accepting the accommodation at 4 Pine House she would no longer be entitled to any further assistance. I have also examined the contents of your client's housing file and I can see no evidence to support your client's assertions. I would also like to stress that at the time your client moved into the property we had not accepted a duty towards your client. Therefore at the time she accepted the property she was not removed from the homeless persons' waiting list. Furthermore, there was no guarantee that your client's application would have been accepted and that we would have accepted a housing duty towards her.

As a Housing Options Service we have a duty to assist applicants to explore the options that are available to them. This means that where possible we have a duty to prevent homelessness. Having considered the details of your client's case I am satisfied that we took appropriate action to assist her."

7. The court papers include an email dated 20 August 2009 from Mr Thomas to Ahmed Alsha saying:-

"Clt would have been informed in detail about the stipulations surrounding the private sector schemes. Clt would have categorically been told that they would not be able to secure council accommodation via the scheme."

8. There is also a note on the homelessness record dated 26 August 2009

"Dave Thomas…has advised that he did advise the client that she would not be placed on the homeless person waiting list if she secured accommodation via private sector."

9. In brief Mrs Rhouila challenges the lawfulness of the Council's decision on the principal ground that it acted unfairly in failing to fulfil an obligation to tell her that her acceptance of the offer of "temporary accommodation" in the form of the shorthold tenancy of the property terminated her status as a homeless person and her Part 7 application. She contends that she has remained homeless within the meaning of the 1996 Act, that the Council owed and still owes her a full housing duty under s193, that it has failed to determine her application and that the Council is under a duty to consider it.

The first appeal judgment

10. HHJ Levy QC held that the Council behaved perfectly properly in taking the steps that it did in suggesting that she looked for alternative accommodation. The reviewing officer made findings of fact which, on the basis of the evidence before her, she was entitled to make: see paragraph 21 of the judgment. The Council had not failed to make proper inquiries. It had reached a decision as to whether she was homeless according to the statutory definition see paragraph 24. As she was not homeless, no duty was owed to her under Part 7. It was unnecessary for the Council to consider other matters relevant to what, if any, duty was owed. In deciding that she was not homeless advice as to the consequences of her acceptance of the property was irrelevant: see paragraph 25. It was not inappropriate for the Council to assist her in securing accommodation at the property prior to making the s184 decision. The actions of the Council did not frustrate the policy of Part 7 nor did they amount to an unlawful circumvention of duties owed under that Part or to irrational conduct: see paragraph 30.
11. The judge said:-

"30. … whether or not the respondent acted properly in assisting the Appellant in securing accommodation of the property prior to making a Section 184 decision it is irrelevant to the question which the review officer need decide… as such even if the respondent did not act properly that would not provide any basis for quashing the review decision. Further, quashing the review decision would be futile as it was clear that any fresh review decision could only decide that at the present time the Appellant is not homeless.

…

36. … the facts are that when she ceased to live with her sister (sic), the Appellant completed an application form seeking assistance under Part 7 and the respondent commenced its enquiries into her application.

37. However, before those enquiries were complete, it is apparent that the Appellant was able, admittedly with proper assistance from the Council, to obtain accommodation elsewhere which she decided to accept. It is proper in my judgment to assist the Appellant in obtaining accommodation in the private sector whilst its enquiries into her Part 7 application were ongoing."

12. The judge said that, if her shorthold tenancy was brought to an end and she lost the accommodation through no fault of her own, she would be able to make a fresh application to the Council, so that she was unlikely to have been prejudiced by accepting the offer of the property. He concluded that it would be futile to quash the review decision in which he could not, in any event, find an error.

"40. In the circumstances I consider that the Appellant advances no basis on which ….she might be considered homeless at the present time. Any fresh review decision would not do anything other than decide that applying section 175 the Appellant is not homeless. It would therefore in these circumstances be futile to quash the review decision."

Appellant's submissions

13. The relevant provisions of the 1996 Act were comprehensively laid out for the court by Mr Jonathan Manning appearing for Mrs Rhouila: he referred to ss159 (Allocation of housing accommodation), 167 (Allocation in accordance with housing scheme), 175 (Homelessness and threatened homelessness), 176 (Meaning of accommodation available for occupation), 179 (Duty of local housing authority to provide advisory services), 182 (Guidance by the Secretary of State), 183 (Application for assistance), 184 (Inquiry into cases of homelessness or threatened homelessness) , 188 (Interim duty to accommodate in case of apparent priority need), 189 (Priority need for accommodation), 190 (Duties to persons becoming homeless intentionally), 192 (Duty to persons not in priority need who are not homeless intentionally), 193 ( Duty to persons with priority need who are not homeless intentionally), 202 (Right to request review of decision), 204 (Right of appeal to county court on point of law), 206 (Discharge of functions: introductory) and 210 (Suitability of accommodation).
14. Mr Manning reiterated submissions made in the court below on the issues whether Mrs Rhouila was homeless, whether the Council had followed a fair procedure and whether it advised her of the consequences of taking the property. He did not dispute the proposition that there is nothing intrinsically unlawful or objectionable in the Council assisting a Part 7 applicant to find accommodation by another route prior to the conclusion of the Council's enquiries on a Part 7 application.
15. Mr Manning focused on the alleged failure of the Council to inform Mrs Rhouila of the effect on her rights in respect of both short and long term housing under Parts 6 and 7 of the 1996 Act if she accepted accommodation made available for her outside Part 7 i.e. that the Council would conclude that she was not homeless, that it would terminate consideration of her application and that she would lose her statutory reasonable preference in the allocation of long term accommodation under Part 6. It was incumbent on the Council, Mr Manning submitted, to provide her with clear information as to such possible consequences so that she could make a properly informed decision.
16. Mr Manning read passages to the court from Homelessness Prevention, a guide to good practice (June 2006) issued by the Department for Communities and Local Government and the Homelessness Code of Guidance for Local Authorities issued by the Department For Communities and Local Government and dated July 2006, in particular the following paragraphs:_

"2.3 …Housing authorities are reminded that they must not avoid their obligations under Part 7 of the 1996 Act (including the duty to make inquiries under s184, if they have reason to believe that an applicant may be homeless or threatened with homelessness), but it is open to them to suggest alternative solutions in cases of potential homelessness where these would be appropriate and acceptable to the applicant.

2.11 Many people who face the potential loss of their current home will be seeking practical advice and assistance to help them remain in their accommodation or secure alternative accommodation. Some may be seeking to apply for assistance under the homelessness legislation without being aware of other options that could help them to secure accommodation. Advice services should provide information on the range of housing options that are available in the district. This might include options to enable people to stay in their existing accommodation, delay homelessness for long enough to allow a planned move, or access alternative accommodation in the private or social sectors. This 'housing options' approach is central to addressing housing need as a means of preventing homelessness.

2.13. Housing authorities will need to ensure that the implications and likely outcomes of the available housing options are made clear to all applicants, including the distinction between having priority need for accommodation under Part 7 and having priority for an allocation of social housing under Part 6.

6.4. Housing authorities should ensure that the implications and likely outcomes of the available housing options are made clear to all applicants, including the distinction between having a priority need for accommodation under Part 7 and being in a "reasonable preference" category for an allocation of housing under Part 6. Authorities must not avoid their obligations under Part 7 (especially the duty to make inquiries under s184), but it is open to them to suggest alternative solutions in cases of potential homelessness where these would be appropriate and acceptable to the applicant.

6.23 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".

17. Reference was also made to paragraph 14.22 of the Guidance in relation to offers of accommodation under Part 6 that will bring the homelessness duty to an end whether accepted or refused. The Guidance alerts local authorities to the importance of giving time to applicants to take advice in making their decision.
18. The Council accepted that it was, at least, good practice to take steps to ensure that Mrs Rhouila was advised of the consequences for her Part 7 application if she accepted the property and on the possibility of her obtaining reasonable preference for Part 6 accommodation. It did not accept Mr Manning's contention that, as a matter of fairness, its advice should have been in writing. As pointed out by Mr Peacock for the Council, neither the relevant provisions of the 1996 Act nor the Code of Guidance require advice to be in writing or to satisfy other formal requirements. Mr Peacock said that, in practice, the Council will generally give relevant advice in writing. That would be a good practice, as it would reduce the risks of misunderstanding and of disputes about what was said.
19. The critical point was whether, in view of the specific allegations made by Mrs Rhouila's solicitors in their request for a review, the review officer properly considered what advice had been given to her by the Council about the consequences of accepting of the property. It was submitted by the Council that the review officer was entitled to conclude that Mrs Rhouila was advised about the consequences of accepting the property.
20. Mr Manning did not agree. He insisted on the importance of explaining the applicant's rights and the consequences of the Council's decision. He said that the Council's approach was unlawful, unfair and flawed procedurally and that Mrs Rhouila was deprived of any real opportunity to make an informed decision whether or not to accept the offer of the property. She had no proper information about the adverse consequences and the disadvantages of accepting the offer of the assured shorthold tenancy. Had she realised that the consequence of accepting the property was that she would no longer be entitled to assistance under Part 7, she would not have pursued that option. She was provided with unsuitable interim accommodation at the Leinster Hotel. She requested alternative suitable interim accommodation. The Council was aware that what was identified and was to be offered to her by the landlord was on a different non-Part 7 basis. It was also aware, though she was not, that the effect of her accepting the offer was that she would lose the right to pursue the Part 7 application, her prospect of obtaining the benefit of a Part 7 full housing duty and her statutory priority in respect of the allocation of long term accommodation to her as amongst the most vulnerable and least well resourced members of society.
21. Mr Manning contended that, although the review officer stated, and the judge accepted, that Mrs Rhouila had been informed of the consequences of accepting the tenancy offer, the review officer's conclusion was contrary to the available evidence. He referred to the decision letter, to the note on the homelessness record and to the email from Mr Thomas, which he submitted made different points from those made by the review officer and the judge: it did not say that he told her of the adverse consequences of accepting the offer and the reference to council accommodation not being available via the scheme addressed a different point which is not relevant to this case. Further, the reviewing officer had not given Mrs Rhouila an opportunity to challenge the conclusion adverse to her that she was minded to draw from her enquiries.

Conclusions

22. In my judgment, Mr Manning has not established that there was any legal error or procedural unfairness in the Council review decision. Despite all the references to the statutory provisions, the Code of Practice and to some authorities, this appeal does not raise any point of law: it simply comes down to whether the review officer was entitled in law to reach conclusions of two short matters of fact.
23. First, the review officer was plainly entitled to conclude that Mrs Rhouilia was not homeless once she had taken the tenancy of the property: it was accommodation which it was reasonable for her to occupy and she accepts that it is suitable.
24. Secondly, the review officer was entitled to reject the various factual assertions made in the letter from her solicitors requesting a review about the handling of her Part 7 application.
25. I am unable to accept the submission that the review officer's conclusions on those matters were perverse. On the face of it the assertion that Mr Thomas told Mrs Rhouila that "the property was temporary accommodation", so that she would not be removed from the homeless persons' waiting list, is very difficult to accept. The accommodation at Leinster House was temporary interim accommodation. The 12 month tenancy of the property found for her was plainly not "temporary accommodation" as was asserted by her in her letter to Mr Thomas dated 18 May 2009, in her solicitor's letter and in a telephone call on 17 August 2009. She may have believed that it was replacement temporary accommodation pending a final decision on her Part 7 application, but that does not mean that it was in fact temporary, or that Mr Thomas told her that it was temporary.
26. As for the complaint of lack of advice by the Council concerning the consequences for Mrs Rhouila if she accepted the property and the complaints of being misled and coerced, they were investigated by the review officer. The housing file was inspected. Contact was made with Mr Thomas, who said that he would have advised Mrs Rhouila in accordance with the practice that would have been followed for property in the private sector. On consideration of the complaints in the light of his investigations the review officer was entitled to conclude that there was no evidence to support them and to reject them accordingly.

Result

27. I would dismiss the appeal. HHJ Levy QC rightly held that there was no error of law in the review decision or in the way in which it was reached.

Lord Justice Sullivan:

28. I agree.

Lord Justice Etherton:

29. I also agree.