This judgment was handed down remotely at 10.30am on 18 March 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
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Lord Justice Stuart-Smith:
Introduction
- This appeal raises questions about the scope of sections 202 and 204 of the Housing Act 1996 ["the Act"]. It takes the form of an appeal against the order of HHJ Saggerson dated 10 October 2023, which dismissed the appellant's appeal arising out of a review decision letter dated 7 June 2023.
- In briefest outline, the respondent made the appellant a final accommodation offer within the meaning of the Act. The appellant refused the offer on the grounds of the suitability of the proposed property and requested a review of the respondent's decision under section 202(1)(h) of the Act, which (as I shall set out below) is specific to the issue of suitability. The appellant made extensive submissions, which were exclusively about why the property was not suitable. The review decision found that the accommodation offered to the appellant by the respondent was suitable. On that basis it asserted that the respondent's relief duty under section 189B(2) of the Act came to an end and the section 193 main duty no longer applied.
- The appellant brought a statutory appeal to the County Court pursuant to section 204(1)(a) of the Act. As summarised in the appellant's skeleton argument before the County Court, the fundamental complaint being made by the appellant was against the conclusion that, as a result of her refusal of the respondent's offer of the property, not only did their relief duty come to an end but no duty was owed under section 193 of the Act. The challenge was advanced on three bases:
i) Ground 1 was that it was wrong and Wednesbury unreasonable for the respondent to have found that the property was suitable;
ii) Ground 2 was that the respondent erred in concluding that the end of the relief duty meant that no further duty was owed under the Act; and
iii) Ground 3 was that the respondent erred in considering that the property was suitable in failing to adopt the requisite structured approach to disability and relative to the physical and medical needs of the appellant's two disabled children and/or it was perverse to find the property suitable in the circumstances of this case.
- HHJ Saggerson dismissed the appeal. The appellant now appeals to this Court with leave after an oral permission hearing before Nugee LJ. There are two grounds of appeal:
i) Ground 1 is that the respondent "erred in concluding that as a result of section 193A(2) and (3) of the Act, no further duty was owed to the appellant under Part 7 following the respondent's ending of the relief duty";
ii) Ground 2 is that the Judge erred "in rejecting the argument that the local authority must take into account events surrounding the decision and subsequent to the decision, in considering what other duties may be owed under Part 7".
- Although this is directly a second appeal from the decision of the County Court, it is common ground that there should be an intense focus on the reasoning of the respondent in reaching its review decision and whether or not that reasoning and its decision can be justified.
The factual and procedural background in more detail
- It is not necessary to rehearse the entire history of the appellant's engagement with the respondent. Some further detail is sufficient, concentrating primarily on the nature and outcome of the review decision that is now under challenge.
- The appellant is a single mother who has two disabled sons. In May 2019 the respondent's Children and Young Persons Services found that, by reason of the children's disabilities and housing needs, the family needed a three-bedroom house. In July 2021 the respondent accepted that it owed a relief duty to the appellant and, separately, that the appellant was entitled to a three-bedroom house.
- On 26 July 2021 the respondent made an offer pursuant to section 188(1) of the Act of interim accommodation in two rooms at Broadwater Lodge, London N17, which the appellant accepted. The offer was made after the respondent had assessed the appellant as being homeless, eligible for assistance and having a priority need.
- The respondent followed up with a final accommodation offer pursuant to section 193A(4) of the Act which it sent by letter dated 13 September 2021. The offer letter stated that the respondent had approved the offer with a view to bringing to an end its relief duty towards her. The letter offered an Assured Shorthold Tenancy at 17 Gretton Road, London N17, a three-bedroom house, with the fixed term of the tenancy to be 24 months. The letter specified the consequences of refusing or accepting the offer, as follows:
"Consequences of Refusing/Accepting the Offer
It is essential that you accept this offer by the 17/09/2021. If you do not do so I will treat this as a formal refusal of the offer.
It is very important that you present well at the viewing and sign up. Failure to do so, which then leads to the landlord not wishing to offer you the property, will also be treated as formal refusal of the offer.
In either case we will proceed to end the Council's Relief duty towards you. The S193 main duty will also not apply. This means that you will not receive any other offer of accommodation and you will be evicted from any temporary accommodation that you may currently be occupying.
If you accept this offer then our homelessness duty will come to an end and you will not receive any other offers and you will be expected to give up any temporary accommodation you may currently be occupying."
- The offer letter of 13 September 2021 went on with a section headed and dealing with "Suitability". In the course of that section the letter addressed matters such as the suitability of the property in terms of space, arrangement and condition, the distance of the property from where the appellant had been living, the significance of any disruption to the appellant's employment, caring responsibilities or education, the proximity of medical facilities and so on. It then re-stated that the offer was a final accommodation offer made under section 193A(4) of the Act and explained the availability of requests for a review:
"Request for a Review
You have a right to request a review of the decision that the property is suitable for you, that you are not under contractual or other obligations relating to your existing accommodation which you are not able to bring to an end before taking up this offer and that the Council's housing duty has come to an end.
You can request a review of the Council's decisions under Section 202 of the Housing Act 1996 as amended within 21 days of being notified of the authority's decision. Please note that review requests made outside of the time limited may not be considered.
You may exercise this right whether or not you accept the offer. I, therefore, strongly advise you to accept the offer and then request a review. This will prevent you from becoming homeless in the event that the review goes against you."
- By a letter dated 22 September 2021, solicitors acting on behalf of the appellant rejected the respondent's final accommodation offer. The letter was headed "Final Accommodation Offer under section 193A(4) …/ Request for review under s202(1)(h) Housing Act 1996". The body of the letter identified the appellant's concerns about the suitability of the Gretton Road property and requested a review of the respondent's decision "under s202(1)(h) of the Housing Act 1996." The only mention of the scope of the respondent's duty came at the very end of the letter where it said:
"In respect of the above, we do however wish to highlight, pursuant to s188(2)(a) Housing Act 1996 that, where the review concerns suitability of a final accommodation offer made under the relief duty, as is the case here, interim duty will continue until the review is concluded and our client has been notified of the outcome."
- There followed a sequence of events which led ultimately to the review decision of 7 June 2023 and the appeal to the County Court with which we are concerned.
- On 23 September 2021 the respondent acknowledged the request for "a review of the Council's decision that the final accommodation offer at 17 Gretton Road … is suitable for you"; and it stated that "[w]e will be reviewing the suitability of the accommodation." The letter gave the appellant an opportunity to submit further representations regarding the appellant's review.
- By an undated letter, which was been sent on or about 24 September 2021, the respondent wrote to the appellant giving notice that the respondent was satisfied that its relief duty had come to an end because of the appellant's rejection of the final accommodation order, relying on section 189B(9a) of the Act. The letter included the following:
"Indeed, we considered your reasons for wanting to refuse the offer in a letter dated 21st September and gave you a further opportunity to accept the property. Despite this you refused to accept the offer.
I am therefore satisfied that the duty to help/provide you with accommodation has come to an end. This is because not only has the Relief duty come to an end but also the S193 main duty does not apply. This means that you will not receive any other offers and the Council will now take steps to evict you from any temporary accommodation you may be occupying."
- The letter went on to say that if the appellant disagreed with this decision (i.e. that the relief duty had come to an end and the section 193 main duty did not apply) she could request a review of the decision. We have not seen any letter requesting a review of this decision, which related exclusively to the scope of the duty owed by the respondent to the appellant; nor has it been suggested or shown that the applicant requested a review of the scope of the duty owed to her by the respondent at any stage.
- On 7 October 2021 the appellant's solicitors replied to the respondent's letter of 23 September with six pages of detailed submissions, all of which went to the question of suitability, and in the light of which the solicitors contended that the Gretton Road property was not suitable for the appellant's needs for either a short- or a long-term period. The letter was headed "Section 202 Suitability Review of s193(4) accommodation". This was followed up by another letter from the solicitors dated 8 December 2021 which was "to make further representations in respect of the suitability of [the appellant's] housing." This was evidently and expressly in furtherance of the review of suitability requested in the appellant's solicitors' letter of 22 September 2021, to which the respondent had referred in its letter of 23 September.
- On 7 January 2022 the respondent sent a letter stating that it was minded to uphold the respondent's original decision that it did not owe a duty to rehouse the appellant because of the provisions of section 198B(9a) of the Act. It set out a detailed response directed to the suitability of the Gretton Road property and, having concluded that it was suitable on all grounds, dealt with the ending of the respondent's duty, including:
"26. I am therefore satisfied that the duty to help/provide you with accommodation has come to an end. This is because not only has the S189B(2) relief duty come to an end but also the S193 main duty does not apply. This means that you will not receive any other offers and that the Council will take steps to evict you from any interim accommodation you may be currently occupying."
The letter then invited the appellant or her representative to make further representations. It was Ms Murray's submission that this letter said nothing substantive about the scope of the respondent's duty (or duties) to the appellant. Specifically, she submitted that the terms of this letter (albeit a "minded to accept" letter) was not a decision that no duty was owed to the appellant as a (prospectively) homeless person. The issue that had been raised by the appellant and her representatives was whether 17 Gretton Road was suitable: hence the request for a review under section 202(1)(h) of the Act. It was not being contended by the appellant or her representatives that if 17 Gretton Road was suitable then the respondent's Relief duty did not come to an end or that the S193 main duty (or any other duty) continued to apply despite her rejection of the offer.
- The appellant's solicitors took up the invitation to make further representations by a six-page letter dated 17 January 2022, which went exclusively to the issue of suitability, ending "[i]n consideration of the points raised above, we ask that you reconsider your position as to the suitability of the property offered at 17 Gretton Road".
- The respondent's review decision was given by a letter dated 20 January 2022. It largely followed the form and reasoning of the "minded to" letter. As before, the letter explained the consequences of refusing a final accommodation offer; and after a detailed 5-page review of the appellant's submissions on suitability it concluded that the accommodation was suitable for the appellant on all grounds. It then set out the consequences of the appellant's refusal of the final accommodation offer including a paragraph in the same terms as paragraph 26 of the "minded to" letter of 7 January 2022. Ms Murray's submission (summarised at [17] above) that the "minded to" letter was not a decision that no duty was owed to the appellant as a (prospectively) homeless person logically applies equally to the letter of 20 January 2022.
- Having received the decision letter of 20 January 2022, the appellant's solicitors wrote on the same day requesting accommodation pending an appeal under section 204 of the Act. This was a new issue that was being raised for the first time by the appellant's solicitors. The respondent refused the request by a letter dated 21 January 2022, which provided detailed reasons. In the course of doing so, it referred to its review decision of 20 January (which it called its section 203 decision) as having the effect that "once I concluded that the offer was suitable this meant that the local authority owed no further duty to your client"; on that basis it had found that the appellant was intentionally homeless. It referred back to its letter of 21 September 2021 encouraging the appellant to accept the Final Accommodation Offer even if she wanted to review it, in order to prevent her homelessness. The letter drew the appellant's attention to her right to seek judicial review of its decision not to accommodate her pending an appeal pursuant to section 204.
- Ms Murray submits that the reasoning set out in the letter of 21 January 2022 gave rise to an obligation to consider whether it owed the appellant a duty as an intentionally homeless person and that there is no sign of such consideration being given either in the letter of 20 January 2022 or the letter of 21 January 2022. I agree that the letters do not consider whether the respondent owed (or would prospectively owe) the appellant a duty as an intentionally homeless person. That was evidently not the purpose of either letter. The purpose of the letter of 20 January 2022 was to provide the respondent's decision on the suitability review, which was the only issue that had been raised up to that date; and the purpose of the letter of 21 January 2022 was to address the appellant's request for interim accommodation pending a proposed appeal under section 204 of the Act.
- The appellant did not seek to bring judicial review proceedings. She was evicted on 17 February 2022, having been housed until then pursuant to the respondent's relief duty.
- Up to this point, the appellant had not sought to challenge the proposition that if the property was suitable, the effect of her refusal to accept it was that the relief duty came to an end and the section 193 duty no longer applied. However, the appellant mounted a statutory appeal in the County Court against the respondent's decision of 20 January 2022. It appears from the appellant's skeleton for the county court hearing of that appeal (prepared by Ms Murray's predecessor and dated 15 September 2022) that the lawfulness of the Council's decision was challenged on three grounds, as follows:
"(a) they erred in concluding that the property was a "final accommodation offer" for the purposes of s. 193A(4) of the Act (ground 2);
(b) they erred in concluding that by operation of s. 193A(2) and (3), no further duty arose following discharge of the relief duty (ground 3); and
(c) they erred in their consideration of whether with [sic] property was suitable by failing to consider whether the property was statutorily overcrowded for the purposes of s. 324 of the Housing Act 1985."
- The appeal was listed to be heard on 22 February 2023. On that day, upon an application by the respondent to adduce further evidence being dismissed, the respondent withdrew its challenged review decision and agreed to take a fresh review decision within 56 days. On that basis, the appellant's appeal was dismissed.
- On 26 May 2023 the respondent sent to the applicant and her new solicitors a letter by which it stated that it was minded to uphold the decision made on 24 September 2021 that the relief duty had come to an end on the basis that she had refused a final accommodation offer. The extensive list of documents which had been taken into account included the appellant's grounds of appeal for the earlier challenge and her counsel's skeleton argument for that hearing, to which I have referred above.
- The appellant's solicitor responded to the "minded to" letter providing further submissions in relation to suitability by email on 31 May 2023 and 2 June 2023. The respondent then made its review decision of 7 June 2023 which is the subject of the present appeal.
- The decision largely followed the format of the earlier review decision of 20 January 2022, including the following:
"You applied to this Authority on 23rd April 2019. Homes for Haringey accepted that they had a S189B(2) duty to relieve your homelessness on 22nd July 2021.
The S189B(2) relief duty can be brought to an end if any of the following occurs:
S189B(9)(a)
Section 193A (consequences of refusal of final accommodation offer or final Part 6 offer at the initial relief stage)
I am satisfied that the duty to help you to secure that suitable accommodation becomes available for your occupation under S189B(2) has come to an end as Section 189B(9)(a) applies to you as you have refused a final accommodation offer at 17 Gretton Road, London N17 8BZ. You were offered this accommodation on the 13th September 2021 and you confirmed that you will not be accepting it.
I must, therefore, uphold the Council's decision given in the decision letter of 24th September 2021 that the Council does not have any further duty toward you."
- After setting out the information that had been taken into account (which again included the appellant's grounds of appeal for the earlier challenge and her counsel's skeleton argument for that hearing), the respondent dealt with Article 3 of the Homelessness (Suitability of Accommodation) Order 2012, concluding that the accommodation had been Article 3 compliant. Under the heading "Reason for considering the offer unsuitable" it then identified the reasons that had been advanced by the appellant and dealt with each one in detail covering six closely reasoned pages, concluding that the accommodation had been suitable for her. The letter then continued under the heading "Ending of relief duty":
"45. In order for the Council to be able to end its duty towards you they must have informed you of the consequence of refusal or acceptance of the accommodation which they are satisfied is suitable and notified you of the right to request a review of the suitability of the accommodation.
46. It is evident that they complied with the above requirement in their letter dated 13th September 2021. Despite this you failed to accept the offer. It, therefore, it is unreasonable for you to suggest that you were not aware of the consequences of refusing or accepting the offer. For avoidance of any doubt the letter dated 13th September 2021 which was actually the offer letter advised you:
"If you do not take up this offer, the Council's duty to provide you with accommodation under S189B(2) will come to an end. It also means that the S193 main duty will not apply to you."
47. This shows that you were made aware of the consequences of refusing the offer from the outset.
48. We must also have been satisfied that you did not have any contractual liabilities that you could not bring to an end. At the time of the offer you were in interim accommodation at [Broadwater] Lodge and you would not have had any significant issues bringing your occupation to an end.
49. I am therefore satisfied that the duty to help/provide you with accommodation has come to an end. This is because not only has the S189B(2) relief duty come to an end but also the S193 main duty does not apply as per S193(A)(3). This means that you will not receive any other offers."
The decision concluded by advising the appellant that, if she believed their decision to be wrong in law, she had the right of appeal to the County Court.
- The appellant duly issued these proceedings pursuant to section 204 of the Act. By her appellant's notice she asked the court:
i) To quash the review decision dated 7 June 2023; alternatively
ii) To vary the review decision dated 7 June 2023 to a decision that the s198B(2) relief duty has not come to an end and that the Appellant did not refuse an offer of suitable accommodation.
- The appellant pursued her statutory appeal to the County Court relying on three grounds. As formulated in her appellant's notice they are not easy to follow. The Judge adopted a degree of reformulation which helpfully identified the real issues that were being pursued before him. Because of the narrow basis for the appeal to this court, I can summarise the original grounds shortly for present purposes, drawing on the Judge's paraphrase:
i) Ground 1 was a challenge to the review decision's finding that the property was suitable. It was asserted that the review had failed to consider Article 3 of the Homelessness (Suitability of Accommodation) (England) Order 2012 and, separately, that the conclusion that the property was suitable was Wednesbury unreasonable or had been reached having taken into account irrelevant matters. The Judge rejected Ground 1 and there is no challenge to that rejection;
ii) Ground 2 was rightly described by Ms Murray as technical (which is not to cast any aspersion on it for that reason). It was submitted that the review decision was deficient in failing to go on to consider what duty, if any, the respondent owed to the appellant as a person with priority needs notwithstanding the finding of suitability. The Judge rejected Ground 2; but it forms the basis for the appeal to this Court and so I will address it in more detail later;
iii) Ground 3 was that the review decision was vitiated by a failure to adopt a structured approach to the question whether the property was suitable which was said to have led to a failure to give proper consideration to the disabilities suffered by the appellant's children. The Judge rejected Ground 3 and there is no challenge to that rejection.
The legal framework
Duties under Part VII of the Act
- Various duties may arise under Part VII of the Act when a person applies to a local authority for accommodation or for assistance in obtaining accommodation and the local authority has reason to believe that they are or may be homeless or threatened with homelessness. For present purposes there are four duties that may be relevant, which I summarise below. It is common ground that the appellant has always been a person having a priority need for accommodation as defined in section 189 of the Act.
- The most convenient starting point is section 184(1) of the Act, which requires a local authority that have reason to believe that an applicant may be homeless or threatened with homelessness to make such inquiries as are necessary to satisfy themselves (a) whether he is eligible for assistance and (b) if so whether any duty, and if so what duty, is owed to him under the following provisions of Part VII of the Act. On completing their inquiries the authority are required to notify the applicant of their decision and, so far as any issue is decided against his interests, inform him of the reasons for their decision: section 184(3). The "decision" in section 184(3) must mean the decision they have reached on (a) eligibility and/or (b) the scope of the duty (if any) that they owe to the applicant.
- Section 189B of the Act establishes an initial duty (also known and frequently referred to as the relief duty) where an applicant is homeless and eligible for assistance: section 189B(1). Where the initial duty applies, the authority must take reasonable steps to help the applicant to secure that suitable accommodation becomes available for the applicant's occupation for at least 6 months or such longer period not exceeding 12 months as may be prescribed: section 189B(2). The initial duty applies whether or not the applicant has a priority need. That said, where the applicant has a priority need and did not become homeless intentionally, the initial duty under section 189B(2) comes to an end at the end of the period of 56 days beginning with the day the authority are first satisfied that the applicant has a priority need: section 189B(4). Subsections 189B(5)-(7) establish other circumstances in which the authority may give notice to the applicant bringing the initial duty under subsection (2) to an end. Those circumstances include: (at subsection (7)(c)) where the applicant has refused an offer of suitable accommodation and on the date of refusal there was a reasonable prospect that suitable accommodation would be available for occupation by the applicant for at least 6 months; and (at subsection (7)(d)) where the applicant has become homeless intentionally from any accommodation that has been made available to them as a result of the authority's exercise of their functions pursuant to the initial duty under subsection (2). In addition, the duty under subsection (2) can be brought to an end under section 193A, which I set out below.
- Section 188(1) of the Act establishes an interim duty upon the local authority to secure that accommodation is available for the applicant's occupation in a case where the authority has reason to believe that the applicant may be homeless, eligible for assistance and may have a priority need. The duty comes to an end upon later of (a) the authority's initial/relief duty under s. 189B(2) coming to an end or the authority notifying the applicant that they have decided that they do not owe the applicant a duty under that section and (b) notification of the authority's decision as to what other duty they owe to the applicant under Part 7 of the act upon the duty under 189B(2) coming to an end: section 188(1ZB).
- The main housing duty is a duty pursuant to section 193(2) of the Act to secure that accommodation is available for occupation by the applicant. By section 193(1) it arises where the local authority: (a) is satisfied that the applicant is homeless and eligible for assistance and is not satisfied that the applicant became homeless intentionally; (b) is also satisfied that the applicant has a priority need; and (c) the authority's initial duty to the applicant pursuant to section 198B has come to an end.
- Lastly, for present purposes, is the duty to persons becoming homeless intentionally, which arises pursuant to section 190 where an applicant is homeless and eligible for assistance, but became homeless intentionally, (b) the applicant has a priority need, and (c) the authority's duty to the applicant under the relief duty (section 189B(2)) has come to an end: section 190(1). Where the duty exists, the authority must (a) secure that accommodation is available for the applicant's occupation for such period as they consider will give him a reasonable opportunity of securing accommodation for his occupation, and (b) provide him with (or secure that he is provided with) advice and assistance in any attempts he may make to secure that accommodation becomes available for his occupation: section 190(2).
- Section 193A deals with the consequences of refusal of a final accommodation offer and is central to the present appeal. It provides:
"(1) Subsections (2) and (3) apply where—
(a) a local housing authority owe a duty to an applicant under section 190B(2), and
(b) the applicant, having been informed of the consequences of refusal and of the applicant's right to request a review of the suitability of the accommodation, refuses—
(i) a final accommodation offer, or
…
(2) The authority's duty to the applicant under section 189B(2) comes to an end.
(3) Section 193 (the main housing duty) does not apply.
… ."
- In the present case, the applicant refused the respondent's final accommodation offer after she had been informed of the consequences of refusal and of her right to request a review of the suitability of the property, which she had duly exercised. Accordingly it is clear beyond argument (and accepted by the applicant) that the respondent's duty to the applicant under section 189B(2) came to an end on conclusion of the respondents review and the main housing duty no longer applied.
Reviews
- Section 202 gives an applicant the right to request a review of certain specified decisions of a local housing authority. The format and wording of section 202 are significant:
"(1) An applicant has the right to request a review of—
(a) any decision of a local housing authority as to his eligibility for assistance,
(b) any decision of a local housing authority as to what duty (if any) is owed to him under sections 189B to 193C and 195 (duties to persons found to be homeless or threatened with homelessness),
(ba) any decision of a local housing authority—
(i) as to the steps they are to take under subsection (2) of section 189B, or
(ii) to give notice under subsection (5) of that section bringing to an end their duty to the applicant under subsection (2) of that section,
…
(c) any decision of a local housing authority to notify another authority under section 198(1) (referral of cases),
(d) …
(e) …
(f) any decision of a local housing authority as to the suitability of accommodation offered to him in discharge of their duty under any of the provisions mentioned in paragraph (b) or (e) or as to the suitability of accommodation offered to him as mentioned in section 193(7),
(g) any decision of a local housing authority as to the suitability of accommodation offered to him by way of a private rented sector offer (within the meaning of section 193), or
(h) any decision of a local housing authority as to the suitability of accommodation offered to the applicant by way of a final accommodation offer or a final Part 6 offer …
(1A) …
(1B) An applicant may, under subsection (1)(h), request a review of the suitability of the accommodation offered whether or not the applicant has accepted the offer.
(2) …
(3) A request for review must be made before the end of the period of 21 days beginning with the day on which he is notified of the authority's decision or such longer period as the authority may in writing allow.
(4) On a request being duly made to them, the authority or authorities concerned shall review their decision.
- In Ravichandran v Lewisham LBC [2010] EWCA Civ 755, [2011] PTSR 117 at [35] the Court of Appeal recognised that a request for a review of a decision pursuant to section 202(1)(b) and a request for a review of a decision pursuant to section 202(1)(f) of the Act could arise in the same case. "It is both possible and desirable for both requirements to be reviewed at the same time. The right to a review of both requirements, and the intention to review both at the same time, should be made clear to the applicant."
- This distinction between the different decisions that are subject to a right of review under section 202(1) is not merely a matter of form. Section 188(2A) provides that, for the purposes of the section, where the applicant requests a review under section 202(1)(h) of the authority's decision as to the suitability of accommodation offered to the applicant by way of a final accommodation offer (within the meaning of section 193A) the authority's duty to the applicant under section 189B(2) is not to be taken to have come to an end under section 193A(2) until the decision on the review has been notified to the applicant. There is no equivalent provision relating to reviews requested under other sub-subsections of section 202(1). Thus there is a material distinction between the consequences of a request for a review of a decision about suitability under section 202(1)(h) and a request under any of the other provisions of section 202(1). This is, in my judgment, sufficient to demonstrate that the identification of different decisions under different provisions of section 202(1) is a matter not merely of form but also of substance. On any view, the identification of different decisions as subject to review under different provisions of section 202(1) is plainly deliberate and not to be brushed on one side as irrelevant or insubstantial.
- The following points emerge. First, rather than giving a blanket right to request a general review where an applicant is dissatisfied with the approach or outcome being adopted or proposed by the local authority, the section gives a right to request a review of certain decisions as identified in section 202(1)(a)-(h). It follows, as a matter of normal English usage, that a request for a review should not and cannot be made on a blanket basis but should be made by reference to one or more of those specific and identified "decisions". An applicant is not limited as to the number of "decisions" he can request to be reviewed but, where he wishes to ask for more than one decision to be reviewed, they should where possible be reviewed at the same time. Second, it is also plain that, as a matter of normal English usage, a request for a review under section 202(1)(b) of a decision as to what duty (if any) is owed to the applicant under sections 198B to 193C and 195 is materially different from a request for a review under section 202(1)(f), (g) or (h) of a decision about suitability as there specified. This seems to me to be obvious and, subject to one point raised by Ms Murray, I do not understand this to be controversial. It is obvious because a decision as to suitability of a specific property does not necessarily or even probably require consideration of the scope of the duty that caused the local authority to offer the property to the applicant. Conversely, a decision about what duty (if any) is owed to the applicant does not necessarily or probably require consideration of the suitability of a particular property. As I have identified in summarising the factual and procedural background, the appellant specified from the outset that the review she was requesting was a review of the suitability of 17 Grettons Lane pursuant to section 202(1)(h) of the Act.
- It also follows inexorably that the reference in section 202(4) to the authority reviewing their decision is a reference to the decision in respect of which the applicant has duly made their request for a review. Hence the importance of the authority identifying clearly to the applicant what decisions it is reviewing: see Ravichandran supra. Thus, as a matter of normal English language, a request for a review of the decision of the local authority as to the suitability of accommodation offered to the applicant does not require the local authority to conduct a review of any decision they may have made about what duty (if any) is owed to the applicant. If the local authority makes a decision about the scope of the duty (if any) owed to an applicant and the applicant is dissatisfied with that decision, then the applicant should duly make a request for a review of that decision under section 202(1)(b).
- Ms Murray sought to avoid this conclusion by reference to the judgment of Lewison LJ in Temur v Hackney LBC [2014] EWCA Civ 877, [2015] PTSR 1. In Temur the applicant applied for a review of the local housing authority's decision that, although she was homeless and eligible for assistance, she was not in priority need and so was not owed the full housing duty. The request for a review was therefore made pursuant to section 202(1)(b): see [78]. The reviewing officer's decision was that the applicant was not homeless. The main issue in the appeal was whether the reviewing officer's decision, which was plainly less favourable to the applicant than the original decision, was open to him. The Court of Appeal held that it was and that on a review under section 202(1) of the Act the reviewer could and would either confirm the decision or make a different one, which might be more or less favourable to the applicant than the original decision.
- Ms Murray relies on two passages from Temur. First, at [33], Jackson LJ said:
"If an applicant requests a review under section 202 of the 1996 Act, he or she is requesting a review of the whole "decision". The reviewer will either confirm the decision or make a different decision."
- Second, at [78]-[81] Lewison LJ (with whom Jackson LJ and Christopher Clarke LJ agreed) said:
"78 Once the applicant has received notification of the authority's decision he has the right under section 202 of the 1996 Act to request a review. In the case of a decision such as the one in the present case that right is described by section 202(1)(b) as a right to request a review of "any decision of a local housing authority as to what duty (if any) is owed to him under sections 190 to 193 and 195 to 196 (duties to persons found to be homeless or threatened with homelessness) . . ."
79 I take the word "review" as being, in this context, equivalent to "reconsider". Thus on a straightforward reading of section 202(1) of the 1996 Act what the authority is being asked to do is to reconsider the question what duty (if any) is owed to him under those sections. I do not see this as in any way incompatible with section 202(4) of the 1996 Act which requires the authority, on a request being made, to "review their decision". The authority will review their decision by reconsidering what duty (if any) is owed to the applicant.
80 Section 203 of the 1996 Act deals with some procedural aspects of the review. It includes the following:
"(3) The authority . . . concerned shall notify the applicant of the decision on the review.
(4) If the decision is - (a) to confirm the original decision on any issue against the interests of the applicant . . . they shall also notify him of the reasons for the decision.
(5) In any case they shall inform the applicant of his right to appeal to the county court on a point of law . . . ."
81 The following points arise from these provisions. First, the outcome of the review is itself a decision. That ties in with the notion that what the authority is asked to do is to reconsider the question whether any duty, and if so what duty, is owed to the applicant. Having reconsidered, the authority must then make a decision. Second, reasons must be given only if the authority decides to confirm the original decision on any issue against the interests of the applicant."
- Ms Murray lights on Jackson LJ's dictum and Lewison LJ's statements that the authority will reconsider their decision as meaning that, where an application is made for a review of the scope of the duty owed to the applicant pursuant to section 202(1)(b), the local authority must reconsider all aspects of their decision letter and their past and prospective dealings with the applicant, whether requested to do so or not. I am unable to accept that submission. When Lewison LJ's passage is read in full, it is plain that the decision being reconsidered to which he is referring is the decision as to the scope of the duty that was the specified subject of the request for a review. That is made clear by Lewison LJ's observation at [79] that "[t]he authority will review their decision by reconsidering what duty (if any) is owed to the applicant"; and at [81] that "[t]hat ties in with the notion that what the authority is asked to do is to reconsider the question whether any duty, and if so what duty, is owed to the applicant."
- Jackson LJ's observation that an applicant requesting a review under section 202 is "requesting a review of the whole "decision"" is (just) consistent with Lewison LJ's explanation, since it leaves undefined what he means by the whole decision and he says he agrees entirely with Lewison LJ's judgment. If I am wrong about that and Jackson LJ meant that an applicant requesting a review under a specific provision of section 202(1) is to be treated as requesting a review of all aspects of the local authority's reasoning and conclusions, whether specified in the request for a review or not, I would respectfully disagree, for the reasons I have given above. I would regard such an expansive statement as obiter and would follow what I understand to be Lewison LJ's approach, which I respectfully consider to be in accordance with the terms of the statute and correct.
- It follows that I do not regard Temur as providing support for a submission that, when a review is requested under section 202(1)(h) the local authority is required to conduct a wholesale review of their relationship with and potential duties to the applicant where those duties have not been the subject of a decision by the local authority and/or a request for a review under section 202(1)(a) or (b).
Appeals to the County Court
- The right of appeal to the County Court is provided and circumscribed by section 204 of the Act. Section 204(1)(a) provides that if an applicant who has requested a review under section 202 is dissatisfied with the decision on the review, they may appeal to the county court "on any point of law arising from the decision or, as the case may be, the original decision." On appeal "the court may make such order confirming, quashing of varying the decision as it thinks fit": section 204(3). In accordance with the structure of sections 202 and 204, I would hold that the "decision" referred to in section 204(3) is the "decision on the review" with which the applicant is dissatisfied (i.e. the decision on the issue raised by the applicant's request for a review). To my mind any other interpretation would be contrary to the structure that has been put in place by Parliament, the purpose of which is to enable grounds of appeal to be clearly defined and closely circumscribed.
The judgment below
- The Judge summarised the appellant's case as being that the respondent had missed out an essential plank of the statutory process because the review officer had neglected to make a decision under section 184(3): having concluded that the relief duty had ended and the main housing duty no longer applied they should have asked themselves whether they owed any other duty under Part VII but failed to do so. The failure to do so is said to been a fundamental flaw in the decision letter.
- Having pointed out that the applicant's request for a review had been made under section 202(1)(f) (which should have been a reference to section 202(1)(h)) and that there is also provision under section 202(1)(a) for the right to request a review of a decision as to eligibility for assistance, the Judge continued:
"36. Ms Murray, by reference to an authority that is not in the bundle and that I have not seen but I am told is a decision of Lewison LJ, maintains that it is clear from parts of the decision that she read out that Lewison LJ made it clear that, once a review is triggered, the respondent local housing authority's duty on review is to embark on a comprehensive rethink of the decision that has been made. I am not satisfied that that necessarily covers the position in a case of the present sort. The reason I say that is that there is no room for doubt that what was sought in the present case was a review of the decision on suitability. That is all that was asked for and that is what the respondent local housing authority undertook. That is what the review officer did. I do not consider it incumbent on the review officer in those circumstances to embark on a comprehensive overhaul or rethink of the entire process in respect of matters that he has not been asked to review or reconsider. To do so, in my judgment, would impose far too great a burden on review officers in this sort of situation. It would lead to review decisions that were even longer than the necessarily long review decisions that are promulgated now. It would involve review officers having to second-guess or invent grounds of challenge that no one had previously asked them to consider. It would lead further to the setting up of all sorts of strawmen or aunt Sallys by review officers only to knock them down. It would be wasteful in resources, including time resources, if the review officer had to undertake such a process.
37. It is clear, in my judgment, that the fact that suitability was all that was engaged here means that that is all that was demanded of the respondent, granted that suitability has many facets Furthermore, even if the line I am taking on this is part of a challenge, the review officer's decision is regarded as inappropriately narrow, the challenge to the substance of the review officer's decision is not justified in the present case.
38. Looking at the review decision as a whole, whilst there is no heading of s.184(3) or similar heading within the review decision, the review officer has adequately covered all the necessary ground in this case.
39. The submission that is made to the effect that the review officer should have gone on to make some sort of anticipatory ruling in respect of s.190 of the 1996 Act, in respect of intentional homelessness, or to s.179 of the Act regarding advisory services that the local housing authority is duty-bound by law to have available for the public at large, in my judgment, does not advance this aspect of the case any further. It is certainly true that, as things turned out, the appellant has been evicted from her property and that occurred after the local authority notified her that their duties were at an end. It may well be that in that context, once that had happened after the events with which I am concerned, issues regarding intentional homelessness might well arise, but I cannot see any justification for the review officer dealing in an anticipatory fashion with all sorts of things that may or may not happen in the context of obligations and considerations that are not engaged on a particular review. Neither do I consider it to be a flaw worthy of challenging the review officer's decision that no specific reference was made to the local housing authority's general advisory, public, statutory duties for the assistance of members of the public at large.
40. Overarching in this context of the grounds of appeal, it seems clear enough to me that what the review officer has done here is perfectly good enough to encapsulate the local authority's duties and they are summarised briskly in the section of the review decision headed, "Ending of Relief Duty" that begins at para.45 of the review decision. To be frank, I do not see what a sentence about s.184 would have added to anybody's benefit in this case."
- At this point it is only necessary to add that the Judge was right to be cautious at [36] about Ms Murray's submission on the basis of an authority which had not been produced. In hindsight, the submission was meant to be based on Temur. For the reasons I have given above, Temur did not justify the weight that Ms Murray placed on it; nor did it support the proposition for which she contended, as would have been clear to the Judge had he been provided with a copy of the authority.
Submissions and resolution – Ground 1
Submissions
- For the appellant, Ms Murray summarises Ground 1 as being that the respondent failed (in the decision letter or at all) to make a decision pursuant to section 184 of the Act as to what if any duties it owed to the applicant under Part VII of the Act; or, if no duties were owed, failed to give written reasons for that decision. While not challenging the ending of the relief duty or that the main housing duty no longer applied, she submits that the respondent was obliged to go further in the on the conclusion of its review and make a decision about what other duties (if any) it owed the applicant. The applicant's case was that if the respondent had considered what other duties it might owe the applicant, it should and would have concluded that on the ending of the relief duty it owed her a duty under section 190(2) as a person who was intentionally homeless but had a priority need and in respect of whom the relief duty had come to an end.
- The respondent concedes that the bringing to an end of the relief duty and the main housing duty by application of section 193A(1) does not automatically mean that an applicant's homelessness application comes to an end, though that will in many cases be the practical effect. The respondent also concedes that where a final accommodation offer is refused so that the relief duty comes to an end and the main housing duty does not apply, there may still be an obligation upon the local housing authority to make a decision pursuant to section 184 about whether it owes any other (and if so what) duty to the applicant. Despite these two concessions (which I consider are appropriately made), the respondent submits that the appeal is misconceived. The applicant only ever requested a review of the respondent's decision on suitability under section 202(1)(h). There was no obligation on the reviewing officer to go further than the review that was requested: specifically, the reviewing officer was not required to carry out a review such as would have been required if the applicant had requested a review under section 202(1)(a) or (b).
- The respondent submits that it made a decision that satisfied the requirements of section 184 by its decision letter of 24 September 2021: the letter amounted to a clear decision that the local authority owed her no further duty to help her or to provide her with accommodation because of her refusal of the final accommodation offer. There was no request for a review of that decision.
- Equally, if (contrary to Ms Murray's submission) the correct interpretation is that paragraph 26 of the respondent's "minded to" letter of 7 January 2022 and the equivalent passage in the decision letter of 20 January 2022 was that they amounted to a decision either that the applicant was not eligible for assistance or that no duty was or would be owed pursuant to section 190(2), and if the applicant was dissatisfied with that decision (or those decisions), she should have requested a review of pursuant to section 202(1)(a) or (b) as appropriate. She did not do so. There was therefore no obligation to carry out a review of eligibility or scope of duty as part of the process undertaken by the respondent and no decision on review on those issues that could form the basis for an appeal to the County Court.
- If, however, Ms Murray's submission is accepted, there never was a decision on eligibility or scope of duty. The correct way to challenge a failure of a local authority to make a decision on an issue that they are obliged to decide is to apply for judicial review of their failure. The provisions of sections 202 and 204 of the Act do not provide an alternative route for challenging such a failure.
- Finally, and in any event, the respondent submits that even if a duty had been owed to the appellant pursuant to section 190(2), the most that she could have expected was a short further period in interim accommodation. In fact she obtained a significant period in such accommodation, from 24 September 2021 to 17 February 2022.
Resolution
- Both before and after the rejection of the final accommodation offer the respondent made plain its view its view that refusal of the offer would mean that its relief duty would come to an end and the section 193 main housing duty would also not apply: see [9], [14], [19] above. In summary:
i) The final accommodation offer said that the consequence of refusal would be the ending of the relief duty and that the section 193 main housing duty would also not apply: see [9] above. The final accommodation offer involved a decision on the part of the respondent that 17 Grettons Road was a suitable property and led to the appellant's request for a review of the decision on suitability: see [15] above;
ii) It is possible to trace a direct line from the final accommodation letter and the request for a review of the decision on suitability to the second review decision letter dated 7 June 2023, all of which was concerned with suitability. The end result was that the second review decision letter confirmed the decision that was said to have been given in the respondent's letter of 24 September 2021: see [27]-[28] above;
iii) The letter of 24 September 2021 had said that the relief duty had come to an end and that the section 193 main duty no longer applied; it had also said that the appellant would receive no further offers from the council: see [14] above;
iv) There was no separate request for a review of the decision contained in the letter of 24 September 2021;
v) There was at no stage any request for a review of any decision on eligibility or the scope of the respondent's duty.
- The appellant submits that none of these occasions amounted to a decision on scope of duty and that no decision within the meaning of section 184 was made as to whether or not the respondent owed any further duties to the appellant after and in consequence of her refusal of the final accommodation offer. That seems to me to be a difficult interpretation to sustain, since the terms of the respondent's letters were clear and peremptory: no further offers would be forthcoming and, in context, it was clear that (rightly or wrongly) that was the respondent's decision as a result of the appellant's refusal of the offer and the operation of section 193A. However, assuming for the sake of argument that the appellant's interpretation is correct, the route to be adopted by the appellant in the face of a failure or refusal to make a decision was by judicial review and not via the provisions of sections 202 and 204.
- If, however, the respondent should be taken to have made a decision on the scope of its duty to the appellant with which the appellant was dissatisfied, her remedy was to request a review pursuant to section 202(1)(a) or (b) as appropriate. The only request for a review was expressly made in relation to suitability under section 202(1)(h) and was expressly understood and confirmed by the respondent to be in relation to suitability: see [11] and [13] above. It is not suggested that there could not be concurrent reviews in relation to the decision on suitability and the decision on eligibility or scope of duty: nor, in the light of [35] of Ravichandran, could there be. But, as a matter of fact, no review was ever requested of a decision on eligibility or scope of duty. For the reasons I have set out above, the review that was requested and confirmed by the respondent to be the review they were undertaking related to suitability. It did not have the effect of a blanket request to the respondent to review every aspect of its relationship with the appellant: see [40]-[49] above. Nor is this a case where reviewing suitability intrinsically required consideration of the scope of the respondent's duty to the appellant. It is therefore not possible to expand the ambit of the appellant's request for a review to cover anything other than suitability.
- In my judgment, therefore, the Judge was right to concentrate on the fact that what was sought in the present case was a review of the decision on suitability. He was also right to take the view that the reviewing officer was not required "to embark on a comprehensive overhaul or rethink of the entire process in respect of matters that he has not been asked to review or reconsider": see [36] of his judgment. I would also agree with the Judge's general observation at [39] that the reviewing officer was not required in his decision letter dealing with the review of the respondent's decision on suitability to deal in an anticipatory manner with "things that may or may not happen om the context of obligations and considerations that are not engaged on a particular review." This is not to go behind the respondent's concession that there may still be an obligation upon the local housing authority to make a decision pursuant to section 184 about whether it owes any other (and if so what) duty to the applicant. Rather, it is to recognise that the statutory route of appeal pursuant to section 204 does not provide a route by which to mount the challenge attempted by the appellant in this case.
- Accordingly, whether she is right or wrong in her submission that there had been no decision pursuant to section 184 about any residual duty once the relief duty had ended and the main housing duty no longer applied, the statutory route pursuant to sections 202 and 204 of the Act does not provide a remedy for the appellant on the facts of this case.
- I would reject Ground 1.
Submissions and resolution – Ground 2
Submissions
- Ms Murray summarises Ground 2 as being that the respondent failed to consider what duties it owed to the applicant at the time when it was conducting its review and that this failure deprived the applicant of a decision as to whether she was owed any further duty. The respondent repeats the submissions it makes under Ground 1.
Resolution
- The reasons that I have given for rejecting Ground 1 apply equally to Ground 2. I would therefore reject Ground 2 also.
Conclusion
- I would dismiss this appeal.
Mr Justice Cobb
- I agree.
Lady Justice Nicola Davies
- I also agree.
