ON APPEAL FROM CENTRAL LONDON CIVIL JUSTICE CENTRE
HIS HONOUR JUDGE BAUCHER
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LLOYD
LORD JUSTICE KITCHIN
| Zahra Abed
|- and -
City of Westminster
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Mr G Pryce (instructed by City of Westminster Legal Services) appeared on behalf of the Respondent.
Crown Copyright ©
Lord Justice Lloyd:
"(3) The authority is subject to the duty under this section until it ceases by virtue of any of the following provisions of this section."
"(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 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."
"(1) A local housing authority may discharge their housing functions under this Part only in the following ways -
(a) by securing that suitable accommodation provided by them is available
(b) by securing that he obtains suitable accommodation from some other person, or (c) [which is not relevant to the particular case]"
"The local housing authority shall not -
a) make a final offer of accommodation under Part 6 for the purposes of subsection (7) ... unless they are satisfied that the accommodation is suitable for the applicant and that it is reasonable and to accept the offer."
"If an applicant who has requested a review under section 202 -
(a) is dissatisfied with the decision on the review, or
(b) is not notified of the decision on the review within the time described under section 203,
he may appeal to the County Court on any point of law arising from the decision or, as the case may be, the original decision."
"So far as reasonably practicable a local housing authority shall in discharging their housing functions under this Part secure that accommodation is available for the occupation of the applicant in their district."
"There is a severe shortage of accommodation in Westminster and it is not reasonably practicable for us to offer a Westminster home to everyone who applies for one. That is why we have had to offer you accommodation in Newham. Although it is outside Westminster, having considered your circumstances, we believe this accommodation is suitable for you."
"We have decided this property is suitable for you and it is reasonable for you to accept it. If you disagree, you can ask us to review our decision. Section 202 of the Housing Act 1996 gives you this right. You may tell us why you think the property is unsuitable and give us new information to support your case. If you wish you can get someone to put your case forward on your behalf."
"It seems to me that the important aspect is the approach that must be adopted. Newham must have regard to the individual circumstances of the applicant and his family. It has to apply its mind to what is suitable for that family. What happened here was that they were offered what was available and what was available happened to be, when the application was made, merely this bed and breakfast. It seems to me implicit in the approach that has been adopted by the local authority, in as much that it indicates the applicant and his family were lucky to get this rather good bed and breakfast accommodation, that they might well have found themselves much further away and in much worse bed and breakfast accommodation.
What did not happen was the assessment that, in my judgment, is required by the Act. Full and proper details should have been taken and full consideration should have been given to all the relevant factors which went to suitability. It may be that if they had been the same result would have been reached because of the unavailability of any more suitable accommodation. What is said here, however, is that there was somewhere else available, namely 49 Alexandra Road. Mr Ojuri and his family had just been evicted from it. No one else had come into it. It would have been the easiest thing in the world for the council to have got in touch with the housing association and said, "Wait, we have a fresh application."
At page 463 the judge said:
"I have already indicated that I accept that the evidence is such that it is clear that the local authority, and I can understand why, did not consider specifically, as it should have done, the needs of this particular family and try to marry those needs to whatever might have been available. It may be that it would have been necessary to defer a decision for a day or two and put them up for a day or two somewhere."
Passing over a few sentences he then said:
"That being so the applicant has lost the chance of obtaining accommodation which might have been much more suitable for his needs and it seems to me that, in those circumstances, he is entitled to have his application considered on a proper basis."
Therefore he quashed the council's decision.
"25. It is to be remembered that the process [he was speaking of the review process] is an administrative one at this stage and there can be no justification for the final administrative decision of the reviewing officer to be limited to the circumstances existing at the date of the initial decision.
26. The decision of the reviewing officer is at large both as to the facts (ie as to whether the three conditions in section 198(2) of the Act are satisfied) and as to the exercise of the discretion to refer. He is not simply considering whether the initial decision was right on the material before it at the date it was made. He may have regard to information relevant to the period before the first decision but only obtained thereafter and to matters occurring after the initial decision."
I should say that that case was about the local connection or otherwise of the applicant with the particular local authority.
"For my part, I have come to the conclusion that the judge came to the right conclusion on this issue for the right reasons. His conclusion is, I believe, both consistent with logic and with the views expressed in this court and the House of Lords in Mohamed. The suggestion that the reviewer should not take into account the facts as at the date of the review would lead to difficulties if, as is sometimes the case, there is a delay between the offer and the final review. In this case there was some delay as there had been a review and then a re-review. In some cases the final review only takes place after an appeal to the court. To confine consideration to the facts that existed months or perhaps a year before could lead to injustice and in my view is contrary to logic."
"That statement of Lord Slynn is a clear indication, consistent with logic, that the administrative decision taken by the reviewer needs to be taken upon the facts that exist at that time. To do otherwise would be shutting one's eyes to the actual facts, which could cause an injustice."
"I can consider the procedural aspect briefly. In my judgment there is nothing in this challenge. It seems to me, looking at the application form and the notes in the file relating in particular to the period August and September last year, that all the relevant information was considered. In addition, the notes suggest that the claimant did make some points about his being involved in a training course and being in debt. In any event, whether there were procedural defects then or not, there was the statutory review on December 22. It is plain that any defect in the procedure which might have occurred at the first stage was put right by the opportunity given to the claimant, through his solicitor, to put any points in he wished about the suitability of the property, including why he was unwilling to live outside Enfield."
That judgment was approved in terms by the Court of Appeal in Osseily to which I have referred.
Lord Justice Kitchin:
Lord Justice Ward:
Order: Appeal dismissed.