England and Wales Court of Appeal (Civil Division) Decisions

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

		Royal Courts of Justice Strand London, WC2
		17th December 2015

1. LADY JUSTICE GLOSTER: This is an appeal under section 204 of the Housing Act 1996. It concerns the respondent, the London Borough of Lewisham's decision dated 15th July 2014, received on 18th July 2014. This was a review decision, by which the decision maker confirmed its earlier decision dated 16th April 2014, that it was entitled to treat its duty to secure the suitable accommodation was made available for the appellant and his children as being discharged pursuant to section 193(6)(d) of the 1996 Act.
2. The appellant's appeal was heard by His Honour Judge Freeland QC on 19th February 2014. The learned judge reserved his judgment and subsequently delivered it orally on 24th February 2014. The learned judge dismissed the appeal.
3. The appellant seeks permission to appeal against that decision and he submits that in relation to one ground of appeal the second appeal test set out in CPR 52.13(2) is met as it concerns an important point of principle or practice. He also submits that the appeal would have a real prospect of success.
4. The appellant is a single man with two children, a girl aged 15 today and 13 at the date of the decision and a boy aged 12 today and 11 at the date of the decision. The appellant applied as homeless and a duty to house was accepted towards him in October 2013. In temporary discharge of that duty the appellant and his family were accommodated in a room at The Frogmill Hotel, 11 to 13 Lawrie Park in SE26 in one room. The room contained a double bed and a single bed with shared kitchen and bathroom facilities.
5. Mr Burton, who has provided very helpful written submissions an advocate's oral statement and helpful oral argument, submits that without doubt that accommodation was statutorily overcrowded on the basis that two persons aged 10 and over of opposite sexes, who were not living together as husband and wife, had to share and must sleep in the same room. He refers to section 325 of the Housing Act. Mr Burton submits that it follows that the room was statutorily overcrowded.
6. The appellant has sole care and custody of the two children. The facts were that he spent about 6 days away from the property whilst his children had contact with their mother from whom he was divorced. During this period his possessions which he had left in the property were moved out of the room and the locks were changed. He had not handed back the key or anything of that sort. On 16th April 2014 the respondent informed him that its duty to him had been discharged.
7. The appellant sought a review and claimed, amongst other things, that the room was statutorily overcrowded. On 15th July, as I have already said, the reviewing officer made his decision and confirmed the duty had been discharged. He found that the room was not statutorily overcrowded and also concluded that the issue of its overcrowding was ultimately irrelevant under the review.
8. Mr Burton submits, with some force, that the reviewing officer was wrong on both counts. First, as a matter of law the room was clearly statutorily overcrowded and second, the fact that the room was statutorily overcrowded was clearly relevant to the decision that the reviewing officer had to make.
9. Mr Burton submits that, notwithstanding Patten LJ's refusal of leave, an important point of principle arises in this case whether a reviewing officer when discharging the duty to provide accommodation, pursuant to section 193(6)(d) is required to consider whether or not the accommodation made available was suitable or not, notwithstanding that such point had not been raised by the applicant prior to his leaving the property.
10. Patten LJ considered that the question whether it was relevant for the reviewing officer to consider the issue of overcrowding was not relevant because the appellant had never raised the issue of overcrowding, nor relied upon it as the reason for vacating the accommodation. Patten LJ said:

"...the judge was right, I think, to conclude that the legality of the officer's decision cannot be impugned by an expost facto analysis of whether the accommodation failed the statutory test for overcrowding."

11. I am, with respect to the view of Patten LJ, persuaded by Mr Burton's submissions that there is a point of principle here that meets the second appeals test and that the arguments set out both in the appellant's skeleton argument and Mr Burton's advocate statement pursuant to pursuant PD53 - see paragraph 16.1, do indeed raise an important point of principle as articulated above. It seems to me that it is arguable that, if one considers the duty of the respondent to provide suitable accommodation pursuant to section 206, the respondent was required by section 210(1) to consider whether the accommodation was suitable. It seems to me that it is certainly arguable that, for the reasons Mr Burton gives, it was incumbent upon the respondent to consider that issue, whether or not it had been raised by the appellant. It seems to me that particularly in circumstances as here, where when the respondent had notified the appellant that it was satisfied that it was under a duty to secure the suitable accommodation was made available for his occupation, it also notified him that in accordance with the statutory criteria he had been assessed as requiring a property with three bedrooms.
12. In those circumstances I have some sympathy with Mr Burton's argument that it is arguably at least untenable for the housing authority to suggest that it was unaware that the accommodation which consisted of one bedroom was unsuitable. Moreover, the respondent did not at any point inform the appellant that it considered that the accommodation was suitable for his family needs or that the appellant had a right to request a review of that decision that it was suitable pursuant to section 202(1)(f) of the Act. Therefore, it perhaps has not surprising that the appellant did not raise overcrowding prior to the respondent's decision to discharge the duty. It seems to me that it is also arguable that the fact that he did not raise the matter until the point of review did not absolve the respondent of its obligation to consider the issue when it made the decision to discharge the duty on 16th April 2014. The anomaly which has been brought to the court's notice by Mr Burton's submission is that, if the respondent had sought to discharge the duty pursuant to section 193(6)(b (in other words on the grounds that the appellant had become homeless intentionally from the accommodation made available for his occupation, as opposed to under section 193(6)(d), viz. "Otherwise voluntarily ceasing to occupy the accommodation made available for his occupation" it would have been incumbent upon the local authority to decide whether it was indeed reasonable for the appellant to continue to occupy the accommodation. That, Mr Burton submits, would necessarily have involved a consideration of the fact that it was statutorily overcrowded - see Harouki v Royal Borough of Kensington and Chelsea [2007] EWCA Civ 100.
13. In my submission it is arguable that this point of principle arises and that there is a reasonable prospect of success for the appellant in establishing that the decision of 15th July 2014 was unlawful. In particular, it could be said that the circumstances of this case in any event give rise to a compelling reason for giving permission to appeal. There is no dispute that the local authority accepted a duty to house the appellant and his two young children on the grounds that they were homeless; the reality is that he remains homeless and as do the children, and that in itself seems to me to provide a compelling reason for permission to appeal.
14. In all the circumstances I grant permission to appeal.