England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
HH Judge Mitchell
A02LB522

		Royal Courts of Justice Strand, London, WC2A 2LL
		3 September 2015

Lord Justice Patten :

1. This is an appeal by Mr Javid Firoozmand against the dismissal by HH Judge Mitchell of his appeal under s.204 of the Housing Act 1996 ("HA 1996") from the decision by a reviewing officer of the London Borough of Lambeth ("the Council") that the accommodation provided for him at Studio 52, 40 Kenbury Street, London, SE5 ("Studio 52") is suitable within the meaning of s.210 HA 1996. This is a second appeal for which permission was granted by Ryder LJ.
2. The appellant was born in September 1964. He is Iranian. He arrived in the UK on 26 February 2000 and claimed asylum. The application was refused but eventually on 18 February 2013 he was granted three years' discretionary leave to remain. In March 2012 he had been attacked and suffered serious head injuries. The evidence is that he has various physical and mental health issues including sensitivity to noise, chronic hypersensitivity pneumonitis, anxiety and depression. He has made various suicide attempts.
3. Between 2009 and April 2013 he occupied a flat in London SW2 but was evicted after the landlord had obtained an order for possession in order to refurbish the property. On 5 April 2013 his solicitors made a Part VII application to the Council for homelessness assistance. His solicitors had written to the Council on 25 March saying that Mr Firoozmand had a long history of mental illness which made him less tolerant to noise from neighbours. They said it would be preferable if he had accommodation on the top floor of a building with fewer neighbours. In an interview with the Council's housing department, Mr Firoozmand said that he was reluctant to live in a hostel and would prefer private accommodation on the top floor of a property. In a medical assessment form signed on 16 April 2013, he stated that he was very sensitive to noise and scared when he hears people walking in rooms above him. In the event, he was given temporary accommodation in Studio 48, 40 Kenbury Street which is a hostel containing a number of units of accommodation. The appellant says that the accommodation there was too noisy due to nearby building works and that he had taken to sleeping rough in a neighbouring park because of it. His solicitors continued to press the Council to provide alternative accommodation but on 8 July 2013 the Council made a s.184 decision that the appellant was not in priority need. There was a statutory review of the decision under s.202 and the decision was withdrawn. By letter dated 17 September 2013 the Council informed the appellant that they had concluded that he was homeless, eligible for assistance and in priority need so that they owed to him a full housing duty under s.193(2) HA 1996.
4. They proposed to comply with that duty by continuing to accommodate him in Studio 48.
5. The appellant requested a review of the decision that the accommodation was suitable. In a letter of 26 September, his solicitors wrote:

"We note that despite numerous medical reports, you have still failed to properly assess the seriousness of our client's mental health condition. The medical reports confirm our client has a history of suicide attempts. The stress caused by our client's current unsuitable housing condition is contributing significantly to his stress levels affecting his pain levels and his ability to cope with his pain.

….

We have been instructed by our client the current accommodation is too noisy and affecting his mental health condition. We have been requesting you to transfer our client to a suitable alternative accommodation for several months due to the anti-social behaviour by the other occupants and some of the staff in the hostel providing you with significant medical evidence in support of our client's mental health condition.

….

We therefore request you to take in to account the seriousness of our client's housing condition and mental health condition and provide to him as a matter of urgency a suitable alternative accommodation on a top floor accommodation or in an unshared flat. We have been instructed by our client that he has requested you to provide him with either a top floor accommodation or an unshared flat so that he can live quietly without any disturbance".

6. In the meantime, the appellant agreed to accept private sector housing if the Council could locate some accommodation in that sector which was suitable.
7. On 22 November 2013 the Council's reviewing officer decided that the accommodation at Studio 48 was suitable. The reviewing officer, Ms Samuels, said that she had investigated the appellant's complaints about noise emanating from the closing of a door and that steps had been taken to adjust the closing device. She also said that there had been no recent incidents of anti-social behaviour in the block. The officer also referred to the fact that a second floor was being added to the building and that the Council's intention was to move Mr Firoozmand to what would become the top floor once it was completed. On 2 December 2013 the appellant was moved to Studio 52 on the second floor of the building which, as I have said, is a double room on the top floor.
8. On 9 December 2013 the appellant requested a review of the decision that Studio 52 was suitable accommodation for him. In his letter in support of the application, the appellant said:

"The accommodation at Studio 52 is not suitable for me as it is too noisy. There are other occupants in the adjoining flats who make noise affecting my health. I believe that the accommodation is not suitable for me on medical grounds".

9. The appellant's solicitors confirmed in correspondence that what they wished to challenge was the suitability of the accommodation. The appellant had, they said, an extremely strong reaction to any noise and had been greatly distressed by the noise in his current accommodation. He had attempted suicide a few days before. They asked the reviewing officer to consider the correspondence from the appellant (quoted above) and also two letters of 6 December 2013 from the appellant's GP. In one of those letters, the GP said:

"As has been extensively documented, Mr Firoozmand has an extensive history of problems with his mental health, including serious suicide attempts. He suffers from ongoing depression and is particularly troubled by any noise in his home environment. He is currently housed in a hostel and is frequently disturbed by even the normal activities of other residents. Mr Firoozmand has an extremely strong reaction to any noise, and has been greatly distressed by the noise in his current accommodation, to the extent that he has told me today that he will kill himself before Christmas if he is not moved to somewhere more suitable immediately."

10. In a letter dated 28 February 2014 the Council's reviewing officer (Ms Edwards) said that she had decided that the accommodation at Studio 52 was suitable. It was on the top floor of the building and the only near neighbour was one woman with a 2 year old who was said to be very quiet. It was unrealistic in a built-up area like Lambeth for the appellant to expect to be housed in solitary accommodation away from all other people.
11. The appellant appealed under s.204 HA 1996 to the County Court on the grounds that the Council had not in fact made a prior decision on suitability which Ms Edwards could review and that the process was procedurally unfair because the appellant was not informed of the nature of the Council's case on suitability. On 22 April 2014 the appellant's GP wrote a further letter stressing his mental instability and stating that an ideal situation for him would be a top floor flat in a small building without many other residents. But the letter goes on to say that it was also important that, in order to allow him to maintain his mental stability, Mr Firoozmand should reside in the local area in Streatham where he had a network of friends and health care professionals.
12. On 29 May 2014 HH Judge Wulwik quashed the 28 February review decision because no proper decision about the suitability of the accommodation had been made in the first place. The appellant's solicitors therefore wrote to the Council on 10 June 2014 submitting further reports from the GP and the Maudesley Hospital and explaining why Studio 52 was unsuitable for the appellant. The solicitors said that there had been a fight at the property between the supposedly quiet woman and her boyfriend and that the appellant was unable to continue to live there. The Council was asked to take these matters into account in deciding how to discharge its s.193(2) duty. But by letter on 4 August the Council advised the appellant's solicitors that it still considered that Studio 52 was suitable for his housing needs.
13. In July 2014 the Council was also provided with further information from the appellant's GP confirming an additional diagnosis of chronic hypersensitivity pneumonitis. There was, however, nothing in the doctor's note to indicate what effect this had on the appellant relevant to the type of accommodation that might be suitable for him and it was only in November 2014 after the decision on suitability (including the review decision) had been taken that the Council received a medical report linking the condition to alleged dampness in the accommodation at Studio 52.
14. A s.202 review was requested of the August decision on suitability and the reviewing officer's decision is contained in a letter dated 22 October 2014. Ms Samuels, the reviewing officer, sets out the history of the appellant's complaints about noise and anti-social behaviour; refers to the various reports from the appellant's GP and other health care professionals about his mental health and stress levels; and takes account of the appellant's criticisms of the Council for not recognising the seriousness of his condition. She goes on to say that she had made enquiries of the appellant's GP:

"I notified you that I was inclined to accept the latest medical advice and suitability assessment made by Mr Thomas. I said this in light of my latest enquiries with your GP. Given Mr Thomas response to you on suitability of your accommodation I subsequently advise you that your GP confirmed to me that you are currently prescribed Citalopram 40mg and you see your GP regularly. I understand that you see your GP approximately once a month. However, this depends on what is happening. Your GP confirmed you are not in receipt of counselling. Your GP advised that when you follow treatment you are good but struggle with change and difficult situations you can deteriorate having suicidal thoughts when things go wrong. Your GP further confirmed that when you have threatened suicide while in the surgery you have been advised to follow the plans arranged by your GP in such circumstances. I am advised that this involves meeting with your GP in order to discuss the triggers. Your GP further advised you have not been high risk recently and went on to confirm you had not been high risk for approximately 2 years. You have always followed the plan and visit your GP. You have also been made aware that you should attend Accident & Emergency if required.

I also considered the information you provided to Mr Thomas. You advised Mr Thomas that you have severe depression and mange this yourself. Mr Thomas noted that you do not have a care plan or mental health Nurse. You also advised Mr Thomas that you informed him that you have always had a top floor accommodation to appease your condition. It is confirmed that your current accommodation is top (second floor with lift) and self contained."

15. Ms Samuels says in the decision letter that she has also contacted the managing agent of the hostel at 40 Kenbury Street who confirmed that no further acts of anti-social behaviour requiring a police presence had occurred since the incident involving the woman neighbour and her boyfriend. The boyfriend had subsequently been imprisoned and the woman and child moved to other accommodation. She said:

"I am advised that you maintain the position that Mr Thomas has not properly assessed the seriousness of your mental health condition. You believe he is wrong to disregard the medical report of your GP that you require isolated accommodation away from noise as you are noise sensitive. I reject this submission for reasons referred to above. Further in reply to the latest submissions that Mr Thomas failed to take into account representations relating to anti social behaviour and that the hostel staff have been misleading in their response on anti social behaviours and incidents in the accommodation I am informed by Mr Ogwu, Temporary Accommodation Team Manager that the noise you complain about is ordinary domestic noise.

Having considered your case I am satisfied your accommodation at 40 Kenbury Street, SE5 9DD is suitable. I rely on my initial findings set out in my letter of 11 September 2014. I note the latest letter submitted by your GP dated 16 September and I have relied on this together with my telephone enquiry with your GP which was made with your agreement despite your GP's comments on this point.

I note you request solitary accommodation away from all other people which in my view is unrealistic and or unaffordable in a location like London. I have noted the medical submissions and my more recent enquiries with Dr Vinick. In so doing I am inclined to find that although your current accommodation does not match your expectations it is suitable accommodation.

It is clear to me that your illness makes you sensitive to environmental factors such as noise. However, as I advise this can't be very well controlled in an urban environment and the council has placed you in as quiet a setting as is possible for an Inner London borough to find within the limits of our capabilities."

16. But her letter also made it clear that Studio 52 was not regarded by the Council as permanent accommodation for Mr Firoozmand:

"As advised you are also able to bid for permanent property. You assured me that you continue to bid for properties however, you have placed substantial restrictions on locations you are prepared to move to within Lambeth. Your reasons for staying within specific parameters of Lambeth have been supported by your GP. This ultimately has the affect of narrowing the properties available to you and contributed to the time period you have remained in your current accommodation. I further note that despite having specific areas within Lambeth you are prepared to consider properties outside the borough as confirmed by your actions today when arrangements were made for you to view a private rented property consisting of a 1 bed top floor conversion accommodation at Flat 2, 153 Lavender Hill SW11 5QJ. I now understand you refused the accommodation stating it was not on the top floor."

17. Mr Firoozmand appealed to the County Court on the following grounds:

(1) that in breach of s.210 HA 1996 the review did not take account of Parts 9 and 10 of the Housing Act 1985 ("HA 1985") and Parts 1 to 4 of the Housing Act 2004 ("HA 2004") in assessing the suitability of the appellant's accommodation;

(2) that it did not take into account the location of the accommodation and the other factors referred to in article 2 of the Homelessness (Suitability of Accommodation) (England) Order 2012 (SI No. 2601) ("the 2012 Order") in assessing the issue of suitability;

(3) that the review did not take account of the time that the appellant had lived at Studio 52 and was likely to remain there;

(4) that the review did not take account of the diagnosis of chronic hypersensitivity pneumonitis made in July 2014;

(5) that the reviewing officer should have been senior to the officer who made the original decision on 4 August 2014 (Mr Hastwell); and

(6) that the decision was in fact taken by a Mr Thomas; that there was therefore no proper original decision on suitability and the appellant was not given notice by the decision-maker of his right to seek a review.

18. Judge Mitchell dismissed the s.204 appeal. He rejected grounds 5 and 6 on the facts and those points have not been pursued further. Grounds 1, 2 and 4 were, however, relied on as part of the appellant's application to this Court for permission to appeal but Ryder LJ granted permission only in respect of ground 1.
19. Section 210(1) HA 1996 provides:

"(1) In determining for the purposes of this Part whether accommodation is suitable for a person, the local housing authority shall have regard to Parts 9 and 10 of the Housing Act 1985 (slum clearance [and overcrowding) and Parts 1 to 4 of the Housing Act 2004."

20. In his skeleton argument lodged with the Court in support of the application for permission to appeal Mr Vanhegan relied particularly on Parts 1 to 4 of HA 2004 which concern the assessment of housing conditions and provide for different forms of remedial action. The scope of Parts 1 to 4 is in fact extremely wide. Part 1 introduces a new system for assessing the condition of residential premises and for enforcing housing standards in relation to such premises. The new system replaces the old test of fitness for human habitation contained in s.604 HA 1985 with a system based on what are described as category 1 and category 2 hazards. These are two levels (in terms of their seriousness) of hazards which pose a risk of harm to the health or safety of an actual or potential occupier of a dwelling: see s.2 HA 2004.
21. Section 3 requires local housing authorities to review housing conditions in their districts with a view to identifying any action which may need to be taken under the various powers contained in Parts 1 to 4. These include not only the enforcement procedures where category 1 and 2 hazards are found to exist, all of which are contained in Part 1, but also the licensing powers in relation to houses in multiple occupation (Part 2) and other residential accommodation (Part 3) and the powers to make interim and final management orders in respect of residential property which are contained in Part 4.
22. The Council, as a local housing authority, is under a duty under s.4 HA 2004 to inspect premises for the existence of category 1 and category 2 hazards if they consider (whether as a result of a s.3 review or otherwise) that such an inspection would be appropriate. There is a mandatory duty to inspect if a complaint is made either by a justice of the peace or a parish or community council: s.4(2), (3). Section 4(1) is expressed in these terms:

"(1) If a local housing authority consider—

(a) as a result of any matters of which they have become aware in carrying out their duty under section 3, or

(b) for any other reason,

that it would be appropriate for any residential premises in their district to be inspected with a view to determining whether any category 1 or 2 hazard exists on those premises, the authority must arrange for such an inspection to be carried out."

23. Where the local housing authority considers that a category 1 hazard exists then they must take one of the courses of action specified under s.5(2). These range from an improvement notice to a demolition order depending on the circumstances. It is not necessary for the purposes of this appeal to consider the detailed provisions in Part 1 which govern the service of the various forms of notice and the power of the local housing authority (as opposed to a duty) to serve notices in respect of category 2 hazards. It is enough to say that the service of a notice will have serious consequences for the landlord of the property not least because it is a criminal offence not to comply with an improvement notice (s.30) or prohibition order (s.32). The service of a notice may be challenged by the landlord on an appeal to the FfT and, except in cases where emergency action is needed, the resolution of a contested enforcement may therefore take some considerable time.
24. The prescribed bands for determining whether a hazard falls within category 1 or 2 are set out in the Housing Health and Safety Rating System (England) Regulations 2005 (SI 2005 No. 3208) and in Operating Guidance about the inspection and assessment of hazards published in February 2006 which explains the theory behind the new Housing Health and Safety Rating System ("HHSRS") and the stages involved in the rating procedure. Annex D contains tables to assist in the scoring of various hazards by reference to their seriousness and their potential for causing harm to the occupants of the property. Both damp and noise are included but it is clear from the table at paragraph 14.02 that in most cases noise is unlikely to exceed the limits of a category 2 hazard. Paragraph 14.19 sets out a list of matters relevant to the likelihood of an occurrence and the severity of the outcomes. These include the site of the dwelling; internal insulation; external insulation; disrepair; the siting of plumbing; noisy equipment and overly powerful door closers. Mr Beglan makes the point that only the last of these factors was ever the subject matter of a complaint made to the Council on Mr Firoozmand's behalf and that this particular complaint was dealt with.
25. Mr Vanhegan sought permission to appeal on ground 1 on the basis that the review of the decision on suitability did not take account of Parts 1 to 4 HA 2004. The appellant had complained about noise and his diagnosis of chronic hypersensitivity pneumonitis is said to be the result of dampness in Studio 52. Judge Mitchell said:

"I appreciate that there is a duty to make enquiries and indeed it is perfectly clear from some of the matters to which I am going to refer in the decision letter, that the decision maker did make enquiries but it seems to me that it is, if it is the Appellant's case, that this problem is exacerbated or not assisted by dampness and that was a problem in the accommodation to which he had been allocated, then in the first place it is up to him to raise it, as indeed was done in a subsequent medical letter, and then the local authority can make their enquiries. So it seems to me that the absence is explained by the fact that the Reviewing Officer understandably was not aware precisely of the nature of the complaint whereas the letter makes it clear after the decision had been made."

26. The judge is there referring to the fact that the reviewing officer does not mention that the appellant is suffering from chronic hypersensitivity pneumonitis or the presence of dampness in the accommodation. The reason, as I have mentioned, is that the appellant had never complained to the Council either personally or through his solicitors about a damp problem nor was it mentioned in any medical report sent to the Council before it made its s.202 decision in October 2014. The judge found that it first came to the Council's attention in a medical report sent to them in November 2014. The question of noise was, of course, a persistent complaint by Mr Firoozmand but that was investigated by the Council and treated by them in the way I have described.
27. The Council's response to the appellant's case on ground 1 (as set out in the skeleton argument filed in support of the application for permission) was that, in making its decision on suitability, it did have regard to the complaints which Mr Firoozmand and his solicitors had made about the condition of Studio 52, in particular noise; but that there had never been a complaint about dampness or anything to indicate that this was a problem for the appellant until the medical report was received in November 2014. In particular, it was never suggested to the reviewer that either a category 1 or category 2 hazard existed at the premises in the form of noise or damp which necessitated an inspection and hazard assessment. The noise was ordinary domestic noise such as the shutting of a door and the dampness (if it existed) was never mentioned.
28. Mr Firoozmand was refused permission to appeal on all but ground 1 and does not therefore challenge the reviewing officer's decision on the ground that she failed to take into account his condition of chronic hypersensitivity pneumonitis resulting from alleged dampness in Studio 52. Mr Vanhegan accepts that the existence of dampness was not drawn to the Council's attention until after the s.202 decision had been made. Nor does he argue that the level of noise in the premises was such as to constitute a category 1 or 2 hazard. In the light of the limited permission to appeal, he has now filed a replacement skeleton argument which concentrates not on whether the noise or any damp might constitute a category 1 or category 2 hazard but on a more general and indeed more fundamental point to the effect that the Council comes under a duty to carry out a s.4 HA 2004 inspection whenever a homeless applicant complains about the condition of the accommodation which has been provided. The Council in this case was therefore, he submits, under a statutory duty to inspect Studio 52 and to decide whether a category 1 or 2 hazard existed. The results of the inspection should then have been taken into account in deciding whether the accommodation was suitable. Because no s.4 inspection and assessment did take place, the Council acted in breach of s.210(1) HA 1996 and its decision on suitability must be set aside. As a fallback position, he says that even if s.210 does not have the effect of casting on the Council a positive duty to carry out an inspection and hazard assessment in these circumstances, it was obliged by s.210 at least to consider ("have regard") to whether an inspection and assessment was appropriate and that there is nothing to show that it did this. The reviewing officer's letter makes no reference to hazard assessment or HA 2004 at all.
29. It will be apparent from this summary of his argument that the points now taken by Mr Vanhegan go beyond a challenge to the adequacy of the review procedure. If correct, the point relates to the legality of the Council's original decision on suitability which Mr Vanhegan says remained uncorrected on review. Mr Beglan, on behalf of the Council, has objected to the introduction of what he says is a wholly new point for which permission was not granted. But he has provided the Court with a supplemental skeleton argument to deal with it and we have heard argument on the point.
30. Section 210(1) requires the Council as a local housing authority to "have regard" to Parts 1 to 4 HA 2004 in determining whether accommodation is suitable. That makes it clear in my view that the new code in HA 2004 for the assessment and removal of category 1 and 2 hazards from residential accommodation is not to be regarded by the Council as a separate, self-contained function unrelated to its own provision of accommodation for homeless applicants. But it seems to me to be equally clear that the statutory link which has been made by s.210(1) has not imposed on the Council any wider duties in relation to the removal of hazards than are contained in Part 1 HA 2004 itself. So in a case where, following the making of a complaint, the Council has come to the conclusion that an inspection of the premises under s.4 HA 2004 for hazards would be appropriate or has come under a duty to carry out an inspection following an official complaint then the Council must take these circumstances into account in deciding whether the accommodation would be suitable for the Part VII applicant to occupy. Much is likely to turn on the seriousness of the complaint about the condition of the premises or of the reasons for the inspection. This is a matter of judgment for the local housing authority in each individual case.
31. Some assistance is to be found in the Homelessness Code of Guidance for Local Authorities which is issued by the Secretary of State pursuant to s.182 HA 1996 and which local housing authorities "shall have regard to" in the exercise of their Part VII functions. Paragraphs 17.11-17.14 of the Code contain a summary of how the HHSRS operates. In paragraph 17.15 the Code states:

"The Secretary of State recommends that when determining the suitability of accommodation secured under the homelessness legislation, local authorities should, as a minimum, ensure that all accommodation is free of Category 1 hazards. In the case of an out of district placement it is the responsibility of the placing authority to ensure that accommodation is free of Category 1 hazards."

32. It is not suggested that this recommendation should be read or treated as an attempt by the Secretary of State to re-formulate the scope of the duties set out in s.4 HA 2004 or to place on local housing authorities any wider duty. The Secretary of State is there advising local housing authorities of the need to ensure that the accommodation they provide is free of category 1 hazards which, in a sense, is a statement of the obvious. But the method of achieving that remains the machinery under Part 1 HA 2004.
33. Mr Vanhegan's first argument that the process of determining whether particular accommodation is suitable for a homeless applicant should be suspended whenever a complaint is made about its condition is not based on any of the provisions in Part 1 HA 2004. He identifies s.210(1) HA 1996 as the source of the obligation and relies on the decision of this Court in Temur v Hackney LBC [2014] HLR 39 as confirming that s.210(1) requires a hazard assessment to be carried out under HA 2004 as part of the determination of suitability. The issue in Temur was whether the applicant was homeless within the meaning of s.175 HA 1996 but the appellant argued that the local housing authority ought, as part of that determination, to have carried out a hazard assessment under HA 2004. The Court held that, as part of what Jackson LJ described as the stage 1 exercise under s.175 of considering the adequacy of the applicant's current accommodation, there was no need for a hazard assessment. But when it turned to consider the suitability of the proposed s.193 accommodation then that "may involve" carrying out a hazard assessment under HA 2004: see Jackson LJ at [48].
34. This is hardly authority for the proposition that whenever a Part 7 applicant complains about the condition of the accommodation which he is offered under s.193(2) there must be a hazard inspection and assessment before a decision on suitability can be made. Mr Vanhegan submitted that the Council was unable to decide whether the noise experienced by Mr Firoozmand was a category 1 hazard unless a hazard assessment was carried out. That seems to me to be unduly formalistic. Local authorities, operating within tight budgets and on limited resources, have to exercise a measure of judgment in deciding whether a particular complaint merits a full inspection of the property and hazard assessment. That much is made clear by the provisions of s.4 HA 2004 itself ("consider … that it would be appropriate"). As I said earlier, the provisions of s.210(1) do not enlarge those of Part 1 HA 2004 so that whether a s.4 inspection is appropriate will require the local housing authority to consider the background and nature of the complaint; what it already knows about the property; and whether the problem complained about is capable of amounting to a category 1 or category 2 hazard. In a case like the present, it must make a judgment as to whether the potential scale of the problem makes it inappropriate to offer the accommodation to the applicant before a full hazard assessment is undertaken or whether the objection to the suitability of the accommodation can be considered and, if necessary, reviewed even without such an assessment being carried out. The possible delay involved in undertaking a full assessment will have to be measured against the apparent seriousness of the problem and the general advice to housing authorities contained in the code of guidance that homelessness applications should be processed with a reasonable degree of expedition.
35. I therefore accept Mr Beglan's submission that, as in other cases involving an inquiry by a local housing authority, it is for the authority to decide whether it has sufficient information in order to make a decision subject only to a challenge on grounds of misdirection or irrationality. In this case it is not suggested that the review decision was irrational or perverse. The only complaint which Mr Firoozmand made about a potential hazard was the complaint about noise. The Council investigated the complaint and took steps to remove the causes of the noise and to assure itself that the level of noise experienced by Mr Firoozmand was kept to the minimum and did not exceed ordinary levels of noise experienced by anyone living in a built-up area. In relation to what was intended to be temporary accommodation, the Council was entitled, in my view, to regard the accommodation at Studio 52 as suitable whilst a search for alternative accommodation probably outside the Borough continued. The premises at Studio 52 are on the top floor of the building. There are adjoining occupants but the reviewing officer relied on the information from the manager that the incidents of anti-social behaviour from other residents had ceased. Some noise is inevitable but, on the evidence available to the Council, it was at an ordinary domestic level which, on the medical evidence, Mr Firoozmand could reasonably be expected to tolerate for the duration of his occupation.
36. I therefore reject Mr Vanhegan's first argument that s.210(1) imposed upon the Council a duty to carry out a s.4 inspection and assessment before making its decision on suitability.
37. His second argument is that even if the Council was not under a statutory duty based on s.210(1) to carry out a s.4 inspection and assessment prior to making its s.210 decision on suitability, it did not in fact have regard to the provisions of Parts 1-4 HA 2004 at all so that the suitability decision was flawed for this reason alone.
38. This point was not run in any detail before Judge Mitchell and is not dealt with in his judgment. But it requires us to assume that merely because there is no reference in the reviewing officer's decision letter to HA 2004 or the question of whether noise could be a category 1 hazard in this case, it must follow that neither she nor the officers responsible for the original decision had any regard to that issue. I am not prepared to make that assumption. We are dealing here with experienced housing officers who can be assumed to have relevant background knowledge of what they should consider in relation to the various homelessness applications with which they deal. It seems to me much more likely in the light of the detailed consideration which the Council did give to the noise issue that none of the officers responsible thought that the scale of the problem merited a full hazard assessment. Nor is it clear to me what such an assessment would have achieved.
39. The Council would have been entitled to conclude that an inspection and formal hazard assessment was unlikely to provide it with any more information than it already had and that it could properly make a decision on suitability without the need for such an inspection. The chances of this being a category 1 hazard case are remote to non-existent and there are no grounds, in my view, for saying that the Council acted in breach of s.210 in proceeding to make its decision on suitability without first undertaking a hazard assessment or that it acted irrationally in so doing.
40. For these reasons, I would dismiss the appeal.

Lord Justice Kitchin :

41. I agree.

Lady Justice Gloster :

42. I also agree.